| | |
Sunnova Sol IV Issuer, LLC
Issuer
and
Wilmington Trust, National Association
Indenture Trustee
Indenture
Dated as of June 27, 2022
$355,000,000
Sunnova Sol IV Issuer, LLC
Solar Asset Backed Notes, Series 2022-1
Class A Notes and Class B Notes |
[***] = 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.
Table of Contents
Page
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ARTICLE I Definitions | 2 |
Section 1.01. General Definitions and Rules of Construction | 2 |
Section 1.02. Calculations | 2 |
ARTICLE II The Notes; Reconveyance | 2 |
Section 2.01. General | 2 |
Section 2.02. Forms of Notes | 3 |
Section 2.03. Payment of Interest | 6 |
Section 2.04. Payments to Noteholders | 6 |
Section 2.05. Execution, Authentication, Delivery and Dating | 7 |
Section 2.06. Temporary Notes | 7 |
Section 2.07. Registration, Registration of Transfer and Exchange | 8 |
Section 2.08. Transfer and Exchange | 13 |
Section 2.09. Mutilated, Destroyed, Lost or Stolen Notes | 15 |
Section 2.10. Persons Deemed Noteholders | 16 |
Section 2.11. Cancellation of Notes | 16 |
Section 2.12. Conditions to Closing | 16 |
Section 2.13. Definitive Notes | 21 |
Section 2.14. Access to List of Noteholders’ Names and Addresses | 22 |
ARTICLE III Covenants; Collateral; Representations; Warranties | 22 |
Section 3.01. Performance of Obligations | 22 |
Section 3.02. Negative Covenants | 23 |
Section 3.03. Money for Note Payments | 24 |
Section 3.04. Restriction of Issuer Activities | 25 |
Section 3.05. Protection of Trust Estate | 26 |
Section 3.06. Opinions and Officer's Certificates as to Trust Estate | 28 |
Section 3.07. Statement as to Compliance | 28 |
Section 3.08. [Reserved]. | 29 |
Section 3.09. Recording | 29 |
Section 3.10. Agreements Not to Institute Bankruptcy Proceedings; Additional Covenants; Covenants with Respect to the Managing Members and Project Companies. | 29 |
Section 3.11. Providing of Notice. | 33 |
Section 3.12. Representations and Warranties of the Issuer | 34 |
Section 3.13. Representations and Warranties of the Indenture Trustee | 39 |
Section 3.14. Knowledge | 40 |
Section 3.15. Capital Contributions | 40 |
Section 3.16. Rule 144A Information | 40 |
ARTICLE IV Management, Administration and Servicing | 40 |
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KL2 3283327.8***] = 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.
| | | | | |
Section 4.01. Transaction Management Agreement | 40 |
ARTICLE V Accounts, Collections, Payments of Interest and Principal, Releases, and Statements to Noteholders | 42 |
Section 5.01. Accounts | 42 |
Section 5.02. Supplemental Reserve Account | 45 |
Section 5.03. Liquidity Reserve Account | 47 |
Section 5.04. [Reserved] | 48 |
Section 5.05. Collection Account | 48 |
Section 5.06. Distribution of Funds in the Collection Account. | 49 |
Section 5.07. Equity Cure | 51 |
Section 5.08. Early Amortization Period Payments | 52 |
Section 5.09. Note Payments | 52 |
Section 5.10. Statements to Noteholders; Tax Returns | 53 |
Section 5.11. Reports by Indenture Trustee | 54 |
Section 5.12. Final Balances | 54 |
ARTICLE VI Voluntary Prepayment of Notes and Release of Collateral | 54 |
Section 6.01. Voluntary Prepayment | 54 |
Section 6.02. Notice of Voluntary Prepayment | 55 |
Section 6.03. Cancellation of Notes | 56 |
Section 6.04. Release of Collateral | 56 |
ARTICLE VII The Indenture Trustee | 57 |
Section 7.01. Duties of Indenture Trustee | 57 |
Section 7.02. Notice of Default, Transaction Manager Termination Event or Event of Default; Delivery of Manager Reports | 59 |
Section 7.03. Rights of Indenture Trustee | 60 |
Section 7.04. Not Responsible for Recitals, Issuance of Notes or Application of Moneys as Directed | 62 |
Section 7.05. May Hold Notes | 62 |
Section 7.06. Money Held in Trust | 62 |
Section 7.07. Compensation and Reimbursement | 62 |
Section 7.08. Eligibility; Disqualification | 64 |
Section 7.09. Indenture Trustee’s Capital and Surplus | 64 |
Section 7.10. Resignation and Removal; Appointment of Successor | 64 |
Section 7.11. Acceptance of Appointment by Successor | 65 |
Section 7.12. Merger, Conversion, Consolidation or Succession to Business of Indenture Trustee | 66 |
Section 7.13. Co-trustees and Separate Indenture Trustees | 66 |
Section 7.14. Books and Records | 68 |
Section 7.15. Control | 68 |
Section 7.16. Suits for Enforcement | 68 |
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[***] = 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.
| | | | | |
Section 7.17. Compliance with Applicable Anti-Terrorism and Anti-Money Laundering Regulations | 68 |
Section 7.18. Authorization | 69 |
ARTICLE VIII [Reserved] | 69 |
ARTICLE IX Event of Default | 69 |
Section 9.01. Events of Default | 69 |
Section 9.02. Actions of Indenture Trustee | 70 |
Section 9.03. Indenture Trustee May File Proofs of Claim | 71 |
Section 9.04. Indenture Trustee May Enforce Claim Without Possession of Notes | 72 |
Section 9.05. Knowledge of Indenture Trustee | 72 |
Section 9.06. Limitation on Suits | 72 |
Section 9.07. Unconditional Right of Noteholders to Receive Principal and Interest | 73 |
Section 9.08. Restoration of Rights and Remedies | 73 |
Section 9.09. Rights and Remedies Cumulative | 73 |
Section 9.10. Delay or Omission; Not Waiver | 73 |
Section 9.11. Control by Noteholders | 73 |
Section 9.12. Waiver of Certain Events by Less Than All Noteholders | 74 |
Section 9.13. Undertaking for Costs | 74 |
Section 9.14. Waiver of Stay or Extension Laws | 74 |
Section 9.15. Sale of Trust Estate | 74 |
Section 9.16. Action on Notes | 76 |
ARTICLE X Supplemental Indentures | 76 |
Section 10.01. Supplemental Indentures Without Noteholder Approval | 76 |
Section 10.02. Supplemental Indentures with Consent of Noteholders | 77 |
Section 10.03. Execution of Amendments and Supplemental Indentures | 78 |
Section 10.04. Effect of Amendments and Supplemental Indentures | 78 |
Section 10.05. Reference in Notes to Amendments and Supplemental Indentures | 78 |
Section 10.06. Indenture Trustee to Act on Instructions | 78 |
ARTICLE XI [Reserved] | 79 |
ARTICLE XII Miscellaneous | 79 |
Section 12.01. Compliance Certificates and Opinions; Furnishing of Information | 79 |
Section 12.02. Form of Documents Delivered to Indenture Trustee | 79 |
Section 12.03. Acts of Noteholders | 80 |
Section 12.04. Notices, Etc | 81 |
Section 12.05. Notices and Reports to Noteholders; Waiver of Notices | 82 |
Section 12.06. Rules by Indenture Trustee | 83 |
Section 12.07. Issuer Obligation | 83 |
Section 12.08. Enforcement of Benefits | 83 |
Section 12.09. Effect of Headings and Table of Contents | 84 |
Section 12.10. Successors and Assigns | 84 |
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[***] = 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.
| | | | | |
Section 12.11. Separability; Entire Agreement | 84 |
Section 12.12. Benefits of Indenture | 84 |
Section 12.13. Legal Holidays | 84 |
Section 12.14. Governing Law; Jurisdiction; Waiver of Jury Trial | 84 |
Section 12.15. Electronic Signatures and Counterparts | 85 |
Section 12.16. Recording of Indenture | 85 |
Section 12.17. Further Assurances | 85 |
Section 12.18. No Bankruptcy Petition Against the Issuer | 85 |
Section 12.19. Rule 15Ga-1 Compliance. | 86 |
Section 12.20. Multiple Roles | 86 |
Section 12.21. PATRIOT Act | 87 |
ARTICLE XIII Termination | 87 |
Section 13.01. Termination of Indenture | 87 |
| | | | | | | | |
| Schedule I | — | Schedule of Solar Assets |
| Schedule II | — | Scheduled Host Customer Payments |
| Schedule III | — | Scheduled PBI Payments |
| Schedule IV | — | Projected TREC Payments |
| Schedule V | — | [Reserved] |
| Schedule VI | — | Scheduled Outstanding Note Balance |
| Schedule VII | — | Projected Tax Equity Investor Distributions |
| | |
| Exhibit A | — | Form of Class A Note A-1 |
| Exhibit B | — | Form of Class B Note A-2 |
| Exhibit B | — | Forms of Transferee Letter B-1 |
| Exhibit C | — | Form of Notice of Voluntary Prepayment C-1 |
| Exhibit D | — | Rule 15Ga-1 Information D-1 |
| | |
| Annex A | — | Standard Definitions |
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[***] = 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.
This Indenture (as amended or supplemented from time to time, this "Indenture") is dated as of June 27, 2022 between Sunnova Sol IV Issuer, LLC, a limited liability company organized under the laws of the State of Delaware, as issuer (the "Issuer"), and Wilmington Trust, National Association, a national banking association, not in its individual capacity but solely in its capacity as indenture trustee (together with its successors and assigns in such capacity, the "Indenture Trustee").
Preliminary Statement
Pursuant to this Indenture, there is hereby duly authorized the execution and delivery of two classes of notes designated as the Issuer's 4.95% Solar Asset Backed Notes, Series 2022-1, Class A (the "Class A Notes"), and the Issuer's 6.35% Solar Asset Backed Notes, Series 2022-1, Class B (the "Class B Notes" and together with the Class A Notes, the "Notes"). All covenants and agreements made by the Issuer herein are for the benefit and security of the Holders of the Notes. The Issuer is entering into this Indenture, and the Indenture Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
Granting Clause
The Issuer hereby Grants to the Indenture Trustee, for the benefit of the Holders of the Notes, as their interests may appear, all of the rights, title, interest and benefits of the Issuer (if any) whether now existing or hereafter arising in and to: (i) the Managing Member Membership Interests; (ii) the Contribution Agreement, the Transaction Management Agreement, the Manager Transition Agreement, the Custodial Agreement, the Performance Guaranty, any Letter of Credit and all other Transaction Documents; (iii) amounts (including, but not limited to Managing Member Distributions, Host Customer Payments, PBI Payments (if any), TREC Payments, SREC Proceeds (if any), Insurance Proceeds and Equity Cure Payments) deposited from time to time into the Collection Account, the Liquidity Reserve Account and the Supplemental Reserve Account and all Eligible Investments in each such account; (iv) the membership interests of the Tax Equity Investor Member in the related Partnership Flip Project Company, if and when acquired by the related Managing Member through the exercise of a Purchase Option, the TEP V-E Withdrawal Right or otherwise, and upon such acquisition, all assets of such Partnership Flip Project Company, (v) the membership interests of each Managing Member in the related Project Company; (vi) with respect to the Starlane Owner Project Company and the Sol IV Owner Project Company, all assets of such Project Company; (vii) any TRECs generated in connection with the PV Systems owned by any of the Project Companies; (viii) proceeds of any and all of the foregoing including all proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or other property and (ix) all other assets of the Issuer (collectively, the "Trust Estate"). For the avoidance of doubt, SRECs, SREC Proceeds (unless deposited into and not otherwise withdrawn from the Collection Account), any Host Customer Security Deposits on deposit in the Host Customer Deposit Account, Grid Services Net Revenue and Grid Services Customer Payment Amounts will not constitute part of the Trust Estate. The Issuer may distribute to the Depositor any Grid Services Net Revenue, SREC Proceeds or proceeds related to Rebates generated with respect to the Solar Assets.
Such Grant is made in trust, to secure payments of amounts due with respect to the Notes ratably and without prejudice, priority or distinction between or among the Notes, and to secure: (i) the payment of all amounts on the Notes as such amounts become due in accordance with their terms; (ii) the payment of all other sums payable in accordance with the provisions of this Indenture; and (iii) compliance with the provisions of this Indenture, all as provided in this Indenture.
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[***] = 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.
The Indenture Trustee acknowledges such Grant, accepts the trusts hereunder in accordance with the provisions of this Indenture, and agrees to perform the duties herein required pursuant to the terms and provisions of this Indenture and subject to the conditions hereof.
ARTICLE I
Definitions
Section 1.01.General Definitions and Rules of Construction. Except as otherwise specified or as the context may otherwise require, capitalized terms used in this Indenture shall have the respective meanings given to such terms in the Standard Definitions attached hereto as Annex A, which is hereby incorporated by reference into this Indenture as if set forth fully in this Indenture. The rules of construction set forth in Annex A shall apply to this Indenture and are hereby incorporated by reference into this Indenture as if set forth fully in this Indenture.
Section 1.02.Calculations. Calculations required to be made pursuant to this Indenture shall be made on the basis of information or accountings as to payments on each Note furnished by the Transaction Manager. Except to the extent they are incorrect on their face, such information or accountings may be conclusively relied upon in making such calculations, but to the extent that it is later determined that any such information or accountings are incorrect, appropriate corrections or adjustments will be made.
ARTICLE II
The Notes; Reconveyance
Section 2.01. General.
(a) The Notes shall be designated as the "Sunnova Sol IV Issuer, LLC 4.95% Solar Asset Backed Notes, Series 2022-1, Class A" and the "Sunnova Sol IV Issuer, LLC 6.35% Solar Asset Backed Notes, Series 2022-1, Class B".
(b)All payments of principal and interest with respect to the Notes shall be made only from the Trust Estate on the terms and conditions specified herein. Each Noteholder and each Note Owner, by its acceptance of a Note, agrees that, subject to the obligations of the Depositor to pay Liquidated Damages Amounts in respect of Defective Solar Assets, the indemnification obligations provided for herein and in the Contribution Agreement and the Transaction Management Agreement, the obligations of the Performance Guarantor under the Performance Guaranty and the obligations of the Managing Members and Project Companies under the Pledge and Security Agreement, it will have recourse solely against such Trust Estate and such payment and indemnification obligations included therein.
(c)Except as otherwise provided herein, all Notes shall be substantially identical in all respects. Except as specifically provided herein, all Notes issued, authenticated and delivered under this Indenture shall be in all respects equally and ratably entitled to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery, all in accordance with the terms and provisions of this Indenture.
(d)The Initial Outstanding Note Balance of the Class A Notes and the Class B Notes that may be executed by the Issuer and authenticated and delivered by the Indenture Trustee and Outstanding at any given time under this Indenture is limited to $317,000,000 and $38,000,000, respectively.
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[***] = 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.
(e)Holders of the Notes shall be entitled to payments of interest and principal as provided herein. Each Class of Notes shall have a final maturity on the Rated Final Maturity. All Notes of the same Class shall be secured on parity with one another, with no Note of any Class having any priority over any other Note of that same Class.
(f)The Notes that are authenticated and delivered to the Noteholders by the Indenture Trustee upon an Issuer Order on the Closing Date shall be dated as of the Closing Date. Any Note issued later in exchange for, or in replacement of, any Note issued on the Closing Date shall be dated the date of its authentication.
(g)Each Class of Notes is issuable in the applicable Minimum Denomination and integral multiples of $1,000 in excess thereof; provided that one Note of each Class of Notes may be issued in an additional amount equal to the applicable Minimum Denomination plus any remaining portion of the Initial Outstanding Note Balance of such Class of Notes; provided, further, that the foregoing shall not restrict or prevent the transfer in accordance with the last sentence of Section 2.07 hereof of any Note with a remaining Outstanding Note Balance of less than the applicable Minimum Denomination.
Section 2.02. Forms of Notes. The Notes shall be in substantially the form set forth in Exhibit A-1 and Exhibit A-2, as applicable, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the Issuer, as evidenced by its execution thereof.
The Definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods, all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the Notes are set forth in Exhibit A-1 and Exhibit A-2 and are part of the terms of this Indenture.
(a) Global Notes. The Underwritten Notes are being offered and sold by the Issuer to the Initial Purchaser pursuant to the Note Purchase and Placement Agency Agreement and the Placed Notes are being sold directly by the Issuer to certain institutional accredited investors (within the meaning of Rule 501(a)(1), (2), (3), (7) or (9) of the Securities Act) pursuant to the Note Purchase Agreement.
The Underwritten Notes offered and sold within the United States to QIBs in reliance on Rule 144A and the Placed Notes shall each be issued initially in the form of Rule 144A Global Notes, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Indenture Trustee, as custodian for the Securities Depository, and registered in the name of the Securities Depository or a nominee of the Securities Depository, duly executed by the Issuer and authenticated by the Indenture Trustee as hereinafter provided. The Outstanding Note Balance of the Rule 144A Global Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee and the Securities Depository or its nominee as hereinafter provided. The Indenture Trustee shall not be liable for any error or omission by the Securities Depository in making such record adjustments and the records of the Indenture Trustee shall be controlling with regard to outstanding principal amount of Notes hereunder.
Notes offered and sold outside of the United States in reliance on Regulation S under the Securities Act shall initially be issued in the form of a Regulation S Temporary Global Note,
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[***] = 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.
which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Indenture Trustee, as custodian for the Securities Depository, and registered in the name of the Securities Depository or the nominee of the Securities Depository for the investors’ respective accounts at Euroclear Bank S.A./N.V. as operator of the Euroclear System ("Euroclear"), or Clearstream Banking société anonyme ("Clearstream"), duly executed by the Issuer and authenticated by the Indenture Trustee as hereinafter provided. Beneficial interests in the Regulation S Temporary Global Notes may be held only through Euroclear or Clearstream.
Within a reasonable period of time following the expiration of the "40-day distribution compliance period" (as defined in Regulation S), beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in Regulation S Permanent Global Notes upon the receipt by the Indenture Trustee of (i) a written certificate from the Securities Depository, together with copies of certificates from Euroclear and Clearstream, certifying that they have received certification of non-United States beneficial ownership of 100% of the Outstanding Note Balance of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a Rule 144A Global Note, all as contemplated by Section 2.08(a)(ii)), and (ii) an Officer's Certificate from the Issuer. The Regulation S Permanent Global Notes will be deposited with the Indenture Trustee, as custodian, and registered in the name of a nominee of the Securities Depository. Simultaneously with the authentication of the Regulation S Permanent Global Notes, the Indenture Trustee shall cancel the Regulation S Temporary Global Note. The Outstanding Note Balance of the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee and the Securities Depository or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided. The Indenture Trustee shall incur no liability for any error or omission of the Securities Depository in making such record adjustments and the records of the Indenture Trustee shall be controlling with regard to outstanding principal amount of Regulation S Global Notes hereunder.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and prepayments. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Indenture Trustee, or by the Note Registrar at the direction of the Indenture Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.08.
The provisions of the "Operating Procedures of the Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the "Management Regulations" and "Instructions to Participants" of Clearstream shall be applicable to interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by the members of, or participants in, the Securities Depository ("Agent Members") through Euroclear or Clearstream.
Except as set forth in Section 2.08, the Global Notes may be transferred, in whole and not in part, only to another nominee of the Securities Depository or to a successor of the Securities Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.02(b) shall apply only to the Global Notes deposited with or on behalf of the Securities Depository.
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[***] = 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.
The Issuer shall execute and the Indenture Trustee shall, in accordance with this Section 2.02(b), authenticate and deliver one Global Note for each Class of Notes which (i) shall be registered in the name of the Securities Depository or the nominee of the Securities Depository and (ii) shall be delivered by the Indenture Trustee to the Securities Depository or pursuant to the Securities Depository’s instructions or held by the Indenture Trustee as custodian for the Securities Depository.
Agent Members shall have no rights either under this Indenture with respect to any Global Note held on their behalf by the Securities Depository or by the Indenture Trustee as custodian for the Securities Depository or under such Global Note, and the Securities Depository may be treated by the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Indenture Trustee or any agent of the Issuer or the Indenture Trustee from giving effect to any written certification, proxy or other authorization furnished by the Securities Depository or impair, as between the Securities Depository and its Agent Members, the operation of customary practices of such Securities Depository governing the exercise of the rights of an owner of a beneficial interest in any Global Note.
The Note Registrar and the Indenture Trustee shall be entitled to treat the Securities Depository for all purposes of this Indenture (including the payment of principal of and interest on the Notes and the giving of instructions or directions hereunder) as the sole Holder of the Notes, and shall have no obligation to the Note Owners.
The rights of Note Owners shall be exercised only through the Securities Depository and shall be limited to those established by law and agreements between such Note Owners and the Securities Depository and/or the Agent Members pursuant to the Note Depository Agreement. The initial Securities Depository will make book-entry transfers among the Agent Members and receive and transmit payments of principal of and interest on the Notes to such Agent Members with respect to such Global Notes.
Whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Holders of Notes evidencing a specified percentage of the Outstanding amount of the Notes, the Securities Depository shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or Agent Members owning or representing, respectively, such required percentage of the beneficial interest in the Notes and has delivered such instructions to the Indenture Trustee.
(c) Definitive Notes. Except as provided in Sections 2.08 and 2.13, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of certificated definitive, fully registered Notes (the "Definitive Notes").
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[***] = 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.
Section 2.03. Payment of Interest.
(a) On each Payment Date, the Note Interest for a Class of Notes will be distributed to the registered Noteholders of such Class of Notes as of the related Record Date to the extent Available Funds are sufficient for such distribution in accordance with the Priority of Payments. Interest on the Notes with respect to any Payment Date will accrue at the applicable Note Rate based on the Interest Accrual Period.
(b)If the Outstanding Note Balance of any Class of Notes has not been paid in full on or before the Anticipated Repayment Date, additional interest (the "Post-ARD Additional Note Interest") will begin to accrue during each Interest Accrual Period on such Class of Notes thereafter at the related Post-ARD Additional Interest Rate. The Post-ARD Additional Note Interest, if any, for a Class of Notes will only be due and payable (i) after the Aggregate Outstanding Note Balance has been paid in full or (ii) on the Payment Date on which a Voluntary Prepayment of all outstanding Notes in full is being made. Prior to such time, the Post-ARD Additional Note Interest accruing on a Class of Notes will be deferred and added to any Post-ARD Additional Note Interest previously deferred and remaining unpaid ("Deferred Post-ARD Additional Note Interest"). Deferred Post-ARD Additional Note Interest will not bear interest.
Section 2.04. Payments to Noteholders.
(a) Principal payments and interest on a Class of Notes will be made on each Payment Date to the Noteholders of such Class of Notes as of the related Record Date pursuant to the Priority of Payments. The remaining Outstanding Note Balance of each Class of Notes, if any, shall be payable no later than the Rated Final Maturity. Noteholders shall, subject to the priorities and conditions set forth in the Priority of Payments, be entitled to receive payments of interest and principal on each Payment Date. Any payment of interest or principal payable with respect to the Notes on the applicable Payment Date shall be made to the Person in whose name such Note is registered as of the Record Date for such Payment Date in the manner provided in Section 5.09.
(b)All reductions in the principal balance of a Note (or one or more Predecessor Notes) effected by payments of principal made on any Payment Date shall be binding upon all Holders of such Note and of any Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Note.
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[***] = 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.
Section 2.05. Execution, Authentication, Delivery and Dating.
(a) The Notes shall be executed by the Issuer. The signature of such Authorized Officer on the Notes may be manual or facsimile. Notes bearing the manual or facsimile signature of any individual who was, at the time of execution thereof, an Authorized Officer of the Issuer shall bind the Issuer, notwithstanding the fact that such individual ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of issuance of such Notes.
(b)On the Closing Date, the Issuer shall, and at any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Indenture Trustee for authentication, and the Indenture Trustee, upon receipt of the Notes and of an Issuer Order, shall authenticate and deliver such Notes; provided, however, that the Indenture Trustee shall not authenticate the Notes on the Closing Date unless and until it shall have received the documents listed in Section 2.12.
(c)Each Note authenticated and delivered by the Indenture Trustee to or upon an Issuer Order on or prior to the Closing Date shall be dated the Closing Date. All other Notes that are authenticated after the Closing Date for any other purpose under this Indenture shall be dated the date of their authentication.
(d)Notes issued upon transfer, exchange or replacement of other Notes shall be issued in authorized denominations reflecting the Outstanding Note Balance so transferred, exchanged or replaced, but shall represent only the Outstanding Note Balance so transferred, exchanged or replaced. In the event that any Note is divided into more than one Note in accordance with this Article II, such Outstanding Note Balance shall be divided among the Notes delivered in exchange therefor.
(e)No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication, substantially in the form provided for herein, executed by the Indenture Trustee by the manual signature of a Responsible Officer of the Indenture Trustee, and such executed certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered.
Section 2.06. Temporary Notes. Except for the Notes maintained in book-entry form, temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Definitive Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Issuer. Every such temporary Note shall be executed by the Issuer and authenticated by the Indenture Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Definitive Notes. Without unreasonable delay, the Issuer will execute and deliver to the Indenture Trustee Definitive Notes (other than in the case of Notes in global form) and thereupon any or all temporary Notes (other than in the case of Notes in global form) may be surrendered in exchange therefor, at the Corporate Trust Office, and the Indenture Trustee shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Definitive Notes. Such exchange shall be made by the Issuer at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Definitive Notes authenticated and delivered hereunder.
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[***] = 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.
Section 2.07. Registration, Registration of Transfer and Exchange.
(a) The Indenture Trustee (in such capacity, the "Note Registrar") shall cause to be kept at its Corporate Trust Office a register (the "Note Register"), in which, subject to such reasonable regulations as it may prescribe, the Note Registrar shall provide for the registration of the Notes and the registration of transfers of such Notes. The Notes are intended to be obligations in registered form for purposes of Section 163(f), Section 871(h)(2) and Section 881(c)(2) of the Code.
(b)Each Person who has or who acquires any Ownership Interest in a Note shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the provisions of this Section 2.07 and Section 2.08.
(c)Each purchaser of Global Notes, other than the Initial Purchaser, by its acceptance thereof, will be deemed to have acknowledged, represented and agreed as follows:
(i) The purchaser (A)(1) is a QIB, (2) is aware that the sale to it is being made in reliance on Rule 144A and (3) is acquiring the Notes or interests therein for its own account (and not for the account of others) or as a fiduciary agent for others (which others are also QIBs and have executed an agreement containing substantially the same representations as provided herein), (B) is not a U.S. Person and is purchasing the Notes or interests therein in an offshore transaction pursuant to Regulation S or (C) solely with respect to the Placed Notes on the Closing Date, is an institutional accredited investor (within the meaning of Rule 501(a)(1), (2), (3), (7) or (9) of the Securities Act). The purchaser is aware that it (or any account of a QIB for which it is purchasing) may be required to bear the economic risk of an investment in the Notes for an indefinite period, and it (or such account) is able to bear such risk for an indefinite period.
(ii) The purchaser understands that the Notes and interests therein are being offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act, that the Notes have not been and will not be registered under the Securities Act or any other applicable securities laws and that (A) if in the future it decides to offer, resell, pledge or otherwise transfer any of the Notes or any interests therein, such Notes (or the interests therein) may not be offered, resold, pledged or otherwise transferred in denominations less than the Minimum Denomination, and in each case, in integral multiples of $1,000 in excess thereof, and only (1) in the United States to a person whom the seller reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A (acting for its own account and not for the account of others, or as a fiduciary or agent for other QIBs to whom notice is given that the sale, pledge or transfer is being made in reliance on Rule 144A), (2) outside the United States in a transaction complying with the provisions of Regulation S under the Securities Act, or (3) pursuant to another exemption from registration under the Securities Act (if available and evidenced by an opinion of counsel acceptable to the Issuer and the Indenture Trustee), in each of cases (1) through (3) in accordance with any applicable securities laws of any state of the U.S. and any other applicable jurisdiction, and that (B) the purchaser will, and each subsequent holder is required to, notify any subsequent purchaser of such Notes or interests therein from it of the resale restrictions referred to above. Notwithstanding the foregoing restriction, any Note that has originally been properly issued in an amount no less than the Minimum Denomination, or any interest therein, may be offered, resold, pledged or otherwise transferred in a denomination less than the applicable Minimum Denomination if such lesser denomination is solely a result of a reduction of principal due to payments made in accordance with this Indenture.
8
[***] = 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.
(iii)The purchaser acknowledges that none of the Sunnova Entities, the Indenture Trustee, the Initial Purchaser or the Placement Agent or any person representing the Sunnova Entities, the Indenture Trustee, the Initial Purchaser or the Placement Agent has made any representation to it with respect to the Sunnova Entities, or the sale of any Notes, other than the information contained in the Offering Circular, which Offering Circular has been delivered to it and upon which it is relying in making its investment decision with respect to the Notes; accordingly, it acknowledges that no representation or warranty is made by the Sunnova Entities, the Indenture Trustee, the Initial Purchaser or the Placement Agent as to the accuracy or completeness of such materials; and it has had access to such financial and other information concerning the Sunnova Entities and the Notes as it has deemed necessary in connection with its decision to purchase any of the Notes, including an opportunity to ask questions and request information from the Sunnova Entities, the Indenture Trustee, the Initial Purchaser and the Placement Agent. It acknowledges that the delivery of the Offering Circular at any time does not imply that information herein is correct as of any time subsequent to this date.
(iv) The purchaser understands that the applicable Notes will, until such Notes may be resold pursuant to Rule 144(b)(1) of the Securities Act, unless otherwise agreed by the Issuer and the holder thereof, bear a legend substantially to the following effect:
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE OR INTEREST HEREIN MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
EACH PURCHASER AND TRANSFEREE (AND IF THE PURCHASER OR TRANSFEREE IS A BENEFIT PLAN INVESTOR OR PLAN SUBJECT TO SIMILAR LAW, ITS FIDUCIARY) BY ITS PURCHASE OF THIS NOTE OR INTEREST HEREIN IS DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) IT IS NOT ACQUIRING THE NOTE OR INTEREST THEREIN FOR OR ON BEHALF OF OR WITH THE ASSETS OF, ANY EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") THAT IS SUBJECT TO TITLE I OF ERISA OR ANY OTHER "PLAN" AS DEFINED IN SECTION 4975(E)(1) OF THE CODE THAT IS SUBJECT TO SECTION 4975 OF THE CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS (WITHIN THE MEANING OF 29 CFR SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN SUCH ENTITY (EACH A "BENEFIT PLAN INVESTOR"), OR ANY PLAN
9
[***] = 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.
THAT IS SUBJECT TO ANY LAW SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"), OR (2) IF PURCHASER OR TRANSFEREE IS A BENEFIT PLAN INVESTOR OR A PLAN THAT IS SUBJECT TO SIMILAR LAW, THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE OR INTEREST HEREIN DOES NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE OR NON-EXEMPT VIOLATION OF SIMILAR LAW AND WILL BE CONSISTENT WITH ANY APPLICABLE FIDUCIARY DUTIES THAT MAY BE IMPOSED UPON THE PURCHASER OR TRANSFEREE.
THE HOLDER OF THIS NOTE OR ANY INTEREST HEREIN AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE AND ANY INTEREST HEREIN MAY ONLY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN MINIMUM DENOMINATIONS OF $100,000 AND IN INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF, AND ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A (ACTING FOR ITS OWN ACCOUNT AND NOT FOR THE ACCOUNT OF OTHERS, OR AS A FIDUCIARY OR AGENT FOR OTHER QIBS TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A), (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE AND EVIDENCED BY AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER AND THE INDENTURE TRUSTEE), IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. NOTWITHSTANDING THE FOREGOING RESTRICTION, ANY NOTE THAT HAS ORIGINALLY BEEN PROPERLY ISSUED IN AN AMOUNT NO LESS THAN THE MINIMUM DENOMINATION, OR ANY INTEREST THEREIN, MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN A DENOMINATION LESS THAN THE MINIMUM DENOMINATION IF SUCH LESSER DENOMINATION IS SOLELY A RESULT OF A REDUCTION OF PRINCIPAL DUE TO PAYMENTS MADE IN ACCORDANCE WITH THE INDENTURE.
The purchaser understands that the Issuer may receive a list of participants holding positions in the Notes from the Securities Depository.
10
[***] = 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.
(v) The purchaser understands that any Note offered in reliance on Regulation S will, during the 40-day distribution compliance period commencing on the day after the later of the commencement of the offering and the date of original issuance of the Notes, bear a legend substantially to the following effect:
THIS NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT WHICH IS EXCHANGEABLE FOR A REGULATION S PERMANENT GLOBAL NOTE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE INDENTURE.
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL ISSUE DATE OF THE NOTES, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Following the 40-day distribution compliance period, interests in a Regulation S Temporary Global Note will be exchanged for interests in a Regulation S Permanent Global Note.
(vi)Each purchaser and transferee (and if the purchaser or transferee is a Benefit Plan Investor or plan subject to Similar Law, its fiduciary) by its purchase of a Note or Ownership Interest therein will be deemed to have represented and warranted that either (a) it is not acquiring the Note or interest therein for or on behalf of or with the assets of any employee benefit plan as defined in Section 3(3) of the Employment Retirement Income Security Act of 1974, as amended ("ERISA") that is subject to Title I of ERISA or any other "plan" as defined in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code or any entity whose underlying assets include plan assets (within the meaning of 29 C.F.R. 2510.3-101, as modified by Section 3(42) of ERISA) by reason of an employee benefit plan's or plan's investment in such entity (each a "Benefit Plan Investor"), or any plan that is subject to any law substantially similar to ERISA or Section 4975 of the Code ("Similar Law"), or (b) if purchaser or transferee is a Benefit Plan Investor or a plan that is subject to Similar Law, the purchase, holding and disposition of the Note or interest therein will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or non-exempt violation of Similar Law and will be consistent with any applicable fiduciary duties that may be imposed upon the purchaser or transferee.
(vii)Each purchaser and transferee by its purchase of a Note or interest therein shall be deemed to have agreed to treat such Note as indebtedness and indicate on all federal, state and local income tax and information returns and reports required to be filed with respect to such Note, under any applicable federal, state or local tax statute or any rule or regulation under any of them, that such Note is indebtedness unless otherwise required by Applicable Law as determined by a final determination.
(viii)The purchaser acknowledges that the Sunnova Entities, the Indenture Trustee, the Initial Purchaser, the Placement Agent and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations, warranties, and agreements and agrees that, if any of the acknowledgments, representations, warranties and
11
[***] = 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.
agreements deemed to have been made by its purchase of the Notes are no longer accurate, it shall promptly notify the Initial Purchaser and the Placement Agent. If it is acquiring any Notes as a fiduciary or agent for one or more investor accounts, it represents that it has sole investment discretion with respect to each such investor account and that it has full power to make the foregoing acknowledgments, representations and agreements on behalf of each such investor account.
(ix)The purchaser understands that the Issuer may receive a list of participants holding positions in the Notes from the Securities Depository.
(d) Other than with respect to Notes maintained in book-entry form, at the option of a Noteholder, Notes may be exchanged for other Notes of any authorized denominations and of a like Outstanding Note Balance and Class upon surrender of the Notes to be exchanged at the Corporate Trust Office. Whenever any Notes are so surrendered for exchange, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver, the Notes which the Noteholder making the exchange is entitled to receive.
(e) Other than with respect to Notes maintained in book-entry form, any Note presented or surrendered for registration of transfer or exchange of Notes shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed. All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same rights, and entitled to the same benefits under this Indenture, as the Class of Notes surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer and the Indenture Trustee may require payment of a sum sufficient to cover any Tax or other governmental charge as may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 2.08 not involving any transfer.
The Notes have not been and will not be registered under the Securities Act or the securities laws of any jurisdiction. Consequently, the Notes are not transferable other than pursuant to an exemption from the registration requirements of the Securities Act and satisfaction of provisions set forth in this Indenture.
12
[***] = 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.
Section 2.08. Transfer and Exchange.
(a) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Securities Depository, in accordance with this Indenture and the procedures of the Securities Depository therefor, which shall include restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Beneficial interests in a Global Note may be transferred to persons who take delivery thereof in the form of a beneficial interest in the same Global Note in accordance with the transfer restrictions set forth in the legends in subsections of Section 2.07(c), as applicable. Transfers of beneficial interests in the Global Notes to persons required or permitted to take delivery thereof in the form of an interest in another Global Note shall be permitted as follows:
(i)Rule 144A Global Note to Regulation S Global Note. If, at any time, an owner of a beneficial interest in a Rule 144A Global Note deposited with the Securities Depository (or the Indenture Trustee as custodian for the Securities Depository) wishes to transfer its interest in such Rule 144A Global Note to a person who is required or permitted to take delivery thereof in the form of an interest in a Regulation S Global Note, such owner shall, subject to compliance with the applicable procedures described herein (the "Applicable Procedures"), exchange or cause the exchange of such interest for an equivalent beneficial interest in a Regulation S Global Note as provided in this Section 2.08(a)(i). Upon receipt by the Indenture Trustee of (1) instructions given in accordance with the Applicable Procedures from an Agent Member directing the Indenture Trustee to credit or cause to be credited a beneficial interest in the Regulation S Global Note in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged, (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Securities Depository and the Euroclear or Clearstream account to be credited with such increase, and (3) a certificate in the form of Exhibit B-1 hereto given by the Note Owner of such beneficial interest stating that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S, then the Indenture Trustee, as Note Registrar, shall instruct the Securities Depository to reduce or cause to be reduced the initial Outstanding Note Balance of the applicable Rule 144A Global Note and to increase or cause to be increased the initial Outstanding Note Balance of the applicable Regulation S Global Note by the initial principal amount of the beneficial interest in the Rule 144A Global Note to be exchanged, to credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Regulation S Global Note equal to the reduction in the initial Outstanding Note Balance of the Rule 144A Global Note, and to debit, or cause to be debited, from the account of the person making such exchange or transfer the beneficial interest in the Rule 144A Global Note that is being exchanged or transferred.
(ii)Regulation S Global Note to Rule 144A Global Note. If, at any time an owner of a beneficial interest in a Regulation S Global Note deposited with the Securities Depository or with the Indenture Trustee as custodian for the Securities Depository wishes to transfer its interest in such Regulation S Global Note to a person who is required or permitted to take delivery thereof in the form of an interest in a Rule 144A Global Note, such owner shall, subject to the Applicable Procedures, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Rule 144A Global Note as provided in this Section 2.08(a)(ii). Upon receipt by the Indenture Trustee of (1) instructions from Euroclear or Clearstream, if applicable, and the Securities Depository, directing the Indenture Trustee, as Note Registrar, to credit or cause to be
13
[***] = 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.
credited a beneficial interest in the Rule 144A Global Note equal to the beneficial interest in the Regulation S Global Note to be exchanged, such instructions to contain information regarding the participant account with the Securities Depository to be credited with such increase, (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Securities Depository and (3) if such transfer is being effected prior to the expiration of the "40-day distribution compliance period" (as defined by Regulation S under the Securities Act), a certificate in the form of Exhibit B-2 attached hereto given by the Note Owner of such beneficial interest stating (A) if the transfer is pursuant to Rule 144A, that the person transferring such interest in a Regulation S Global Note reasonably believes that the person acquiring such interest in a Rule 144A Global Note is a QIB and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A and any applicable blue sky or securities laws of any State of the United States, (B) that the transfer complies with the requirements of Rule 144A under the Securities Act and any applicable blue sky or securities laws of any State of the United States or (C) if the transfer is pursuant to any other exemption from the registration requirements of the Securities Act, that the transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the requirements of the exemption claimed, such statement to be supported by an Opinion of Counsel from the transferee or the transferor in form reasonably acceptable to the Issuer and to the Indenture Trustee, then the Indenture Trustee, as Note Registrar, shall instruct the Securities Depository to reduce or cause to be reduced the initial Outstanding Note Balance of such Regulation S Global Note and to increase or cause to be increased the initial Outstanding Note Balance of the applicable Rule 144A Global Note by the initial principal amount of the beneficial interest in the Regulation S Global Note to be exchanged, and the Indenture Trustee, as Note Registrar, shall instruct the Securities Depository, concurrently with such reduction, to credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the applicable Rule 144A Global Note equal to the reduction in the Outstanding Note Balance at maturity of such Regulation S Global Note and to debit or cause to be debited from the account of the person making such transfer the beneficial interest in the Regulation S Global Note that is being transferred.
(b) Transfer and Exchange from Definitive Notes to Definitive Notes. When Definitive Notes are presented by a Holder to the Note Registrar with a request:
(i)to register the transfer of Definitive Notes in the form of other Definitive Notes; or
(ii)to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Note Registrar shall register the transfer or make the exchange as requested; provided, however, that the Definitive Notes presented or surrendered for register of transfer or exchange shall be duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Note Registrar duly executed by such Holder or by his attorney, duly authorized in writing; and
(i)if such Definitive Note is being transferred to a QIB in accordance with Rule 144A or in an offshore transaction pursuant to Regulation S, a certification to that effect from such Holder (in the form attached as Exhibit B-3 hereto); or
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[***] = 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)if such Definitive Note is being transferred in reliance on any other exemption from the registration requirements of the Securities Act, a certification to that effect from such Holder (in the form attached as Exhibit B-3 hereto) and an Opinion of Counsel from such Holder or the transferee reasonably acceptable to the Issuer and to the Indenture Trustee to the effect that such transfer is in compliance with the Securities Act.
(c) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding any other provision of this Indenture, a Global Note may not be transferred except by the Securities Depository to a nominee of the Securities Depository or by a nominee of the Securities Depository to the Securities Depository or another nominee of the Securities Depository or by the Securities Depository or any such nominee to a successor Securities Depository or a nominee of such successor Securities Depository.
(d) Initial Issuance of the Notes. The Initial Purchaser shall not be required to deliver, and neither the Issuer nor the Indenture Trustee shall demand therefrom, any of the certifications or opinions described in this Section 2.08 in connection with the initial issuance of the Notes and the delivery thereof by the Issuer.
Section 2.09. Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture Trustee or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be required by the Indenture Trustee to hold each of the Issuer and the Indenture Trustee harmless, then, in the absence of actual notice to the Issuer or the Indenture Trustee that such Note has been acquired by a protected purchaser, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver upon an Issuer Order, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note or Notes of the same tenor, and Class and principal balance bearing a number not contemporaneously outstanding; provided, however, that if any such mutilated, destroyed, lost or stolen Note shall have become subject to receipt of payment in full, instead of issuing a new Note, the Indenture Trustee may make a payment with respect to such Note without surrender thereof, except that any mutilated Note shall be surrendered. If, after the delivery of such new Note or payment with respect to a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a protected purchaser of the original Note in lieu of which such new Note was issued presents for receipt of payments such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such new Note (or such payment) from the Person to whom it was delivered or any Person taking such new Note from such Person, except a protected purchaser, and each of the Issuer and the Indenture Trustee shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage or cost incurred by the Issuer or the Indenture Trustee in connection therewith.
(b)Upon the issuance of any new Note under this Section 2.09, the Issuer or the Indenture Trustee may require the payment of a sum sufficient to cover any Tax or other governmental charge that may be imposed in relation thereto.
(c)Every new Note issued pursuant to this Section 2.09 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not such destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
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.
(d)The provisions of this Section 2.09 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment with respect to mutilated, destroyed, lost or stolen Notes.
Section 2.10. Persons Deemed Noteholders. Before due presentment for registration of transfer of any Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name any Note is registered as the owner of such Note (a) on the applicable Record Date for the purpose of receiving payments with respect to principal and interest on such Note and (b) on any date for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected by any notice to the contrary.
Section 2.11. Cancellation of Notes. All Definitive Notes surrendered for payment, registration of transfer, exchange or prepayment shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly canceled by it. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Note previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section 2.11 except as expressly permitted by this Indenture. All canceled Notes shall be held and disposed of by the Indenture Trustee in accordance with its standard retention and disposal policy.
Section 2.12. Conditions to Closing. The Notes shall be executed, authenticated and delivered on the Closing Date in accordance with Section 2.05 and, upon receipt by the Indenture Trustee of the following:
(a)an Issuer Order authorizing the authentication and delivery of such Notes by the Indenture Trustee;
(b)the original Notes executed by the Issuer and true and correct copies of the Transaction Documents;
(c)Opinions of Counsel addressed to the Indenture Trustee, the Initial Purchaser, the Placement Agent and the Rating Agency in form and substance satisfactory to the Indenture Trustee, the Initial Purchaser, the Placement Agent and the Rating Agency addressing corporate, security interest, tax, bankruptcy and other matters;
(d)an Officer’s Certificate of an Authorized Officer of the Issuer, stating that:
(i)all representations and warranties of the Issuer contained in the Transaction Documents are true and correct, and no defaults exist under the Transaction Documents;
(ii)the issuance of the Notes will not result in any breach of any of the terms, conditions or provisions of, or constitute a default under, this Indenture or any other Transaction Document, the Issuer Operating Agreement or any other constituent documents of the Issuer or any indenture, mortgage, deed of trust or other agreement or instrument to which the Issuer is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which the Issuer is a party or by which it may be bound or to which it may be subject, and that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Notes have been fully satisfied; and
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.
(iii)the conditions precedent described in this Indenture and in the other Transaction Documents, if any, have been satisfied;
(e) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of Sunnova Intermediate Holdings that:
(i)Sunnova Intermediate Holdings is not in default under any of the Transaction Documents to which it is a party, and the transfer of the Conveyed Property and the Sol Owner Conveyed Property by it will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which it is a party or by which it may be bound or to which it may be subject;
(ii)all representations and warranties of it contained in each of the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, as though made on and as of the Closing Date; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(f) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of Sunnova Sol IV Holdings that:
(i)Sunnova Sol IV Holdings is not in default under any of the Transaction Documents to which it is a party, and the transfer of the Conveyed Property by it will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which it is a party or by which it may be bound or to which it may be subject;
(ii)all representations and warranties of it contained in each of the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, as though made on and as of the Closing Date; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(g) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of the Depositor that:
(i)the Depositor is not in default under any of the Transaction Documents to which it is a party, and the transfer of the Conveyed Property by it and the simultaneous Grant of the Trust Estate to the Indenture Trustee by the Issuer will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any
17
[***] = 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.
Proceeding to which it is a party or by which it may be bound or to which it may be subject;
(ii)all representations and warranties of it on and as of the Closing Date, as though made on and as of the Closing Date contained in each of the Transaction Documents to which it is a party are true and correct; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(h) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of Sunnova Management that:
(i)Sunnova Management is not in default under any of the Transaction Documents to which it is a party, and the performance by Sunnova Management under the Transaction Documents to which it is a party, will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which it is a party or by which it may be bound or to which it may be subject;
(ii)all representations and warranties of it contained in each of the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, as though made on and as of the Closing Date; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(i) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of Sunnova Energy that:
(i)Sunnova Energy is not in default under any of the Transaction Documents to which it is a party, and the performance by Sunnova Energy under the Transaction Documents to which it is a party, will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which it is a party or by which it may be bound or to which it may be subject;
(ii)all representations and warranties of it contained in each of the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, as though made on and as of the Closing Date; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(j) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of each Managing Member that:
18
[***] = 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.
(i)such Managing Member is not in default under any of the Transaction Documents to which it is a party, and the performance by such Managing Member under the Transaction Documents to which it is a party and the transfer of the Sol Owner Assets by Sol Owner Managing Member, will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which it is a party or by which it may be bound or to which it may be subject;
(ii)all representations and warranties of it contained in each of the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, as though made on and as of the Closing Date; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(k) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of the Sol Owner Project Company that:
(i)the Sol Owner Project Company is not in default under any of the Transaction Documents to which it is a party, and the performance by the Sol Owner Project Company under the Transaction Documents to which it is a party, will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which it is a party or by which it may be bound or to which it may be subject;
(ii)all representations and warranties of it contained in each of the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, as though made on and as of the Closing Date; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(l) an Officer’s Certificate dated as of the Closing Date, of an Authorized Officer of the Starlane Owner Project Company that:
(i)the Starlane Owner Project Company is not in default under any of the Transaction Documents to which it is a party, and the performance by the Starlane Owner Project Company under the Transaction Documents to which it is a party, will not result in any breach of any of the terms, conditions or provisions of, or constitute a material default under, its organizational documents or any other constituent documents of it or any indenture, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which it is a party or by which it may be bound or to which it may be subject;
19
[***] = 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)all representations and warranties of it contained in each of the Transaction Documents to which it is a party are true and correct on and as of the Closing Date, as though made on and as of the Closing Date; and
(iii)all conditions precedent set forth in Section 2.12 and in the other Transaction Documents have been satisfied;
(m) a Secretary's Certificate dated as of the Closing Date of each Sunnova Entity (other than the Partnership Flip Project Companies) regarding certain organizational matters and the incumbency of the signatures of such Sunnova Entities;
(n) the assignment to Sunnova Sol IV Holdings by Sunnova Intermediate Holdings of its right, title and interest in the Conveyed Property, duly executed by Sunnova Intermediate Holdings and Sunnova Sol IV Holdings, the assignment to the Depositor by Sunnova Sol IV Holdings of its right, title and interest in the Conveyed Property, duly executed by Sunnova Sol IV Holdings and the Depositor, and the assignment to the Issuer by the Depositor of its right, title and interest in the Conveyed Property, duly executed by the Depositor and the Issuer;
(o) presentment of all applicable UCC termination statements or partial releases (collectively, the "Termination Statements") terminating the Liens of creditors of Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor, the Managing Members, the Original Managing Member Owners or any other Person with respect to any part of the Trust Estate or the assets pledged to the Indenture Trustee under the Pledge and Security Agreement (except as expressly contemplated by the Transaction Documents) and the Financing Statements (which shall constitute all of the Perfection UCCs with respect to the Closing Date) to the proper Person for filing to perfect the Indenture Trustee’s first priority Lien on the Trust Estate, subject to Permitted Liens;
(p) evidence that the Indenture Trustee has established the Collection Account, the Liquidity Reserve Account and the Supplemental Reserve Account;
(q) evidence that Sunnova Energy has established the Host Customer Deposit Account;
(r) delivery by the Custodian to the Issuer and the Indenture Trustee of an executed Closing Date Certification;
(s) delivery by the Rating Agency to the Issuer and the Indenture Trustee of its rating letter assigning a rating to the Class A Notes of at least "A- (sf)" and to the Class B Notes of at least "BBB- (sf)";
(t) all collections received in respect of the Conveyed Property for any period following the Initial Cut-Off Date have been deposited into the Collection Account on the Closing Date;
(u) the Issuer shall have deposited the Liquidity Reserve Account Floor Amount into the Liquidity Reserve Account;
(v) the Issuer shall have deposited the Supplemental Reserve Account Closing Date Deposit into the Supplemental Reserve Account;
20
[***] = 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.
(w) none of the Issuer, Managing Members or the Non-Tax Equity Project Companies shall be insolvent and will become insolvent as a result of the Grant pursuant to this Indenture or the other Transaction Documents or the transactions contemplated by the Transaction Documents; and
(x) any other certificate, document or instrument reasonably requested by the Initial Purchaser, the Placement Agent or the Indenture Trustee.
Section 2.13. Definitive Notes. The Notes will be issued as Definitive Notes, rather than to DTC or its nominee, only if (a) the Securities Depository notifies the Issuer and the Indenture Trustee that it is unwilling or unable to continue as the Securities Depository with respect to any or all of the Notes or (b) at any time the Securities Depository shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, as required, and in either case a successor Securities Depository is not appointed by the Issuer within 90 days after the Issuer receives notice or becomes aware of such condition, as the case may be. Upon the occurrence of any of the events described in the immediately preceding paragraph, the Issuer will issue the Notes of each Class in the form of Definitive Notes and thereafter the Indenture Trustee will recognize the holders of such Definitive Notes as Noteholders of each such Class under this Indenture. In connection with any proposed transfer outside the book entry system or exchange of beneficial interest in a Note for Notes in definitive registered form, the Issuer shall be required to provide or cause to be provided to the Indenture Trustee all information reasonably available to it that is not otherwise available to the Indenture Trustee and is reasonably requested by the Indenture Trustee and is otherwise necessary to allow the Indenture Trustee to comply with any applicable tax reporting obligations, including without limitation, any cost basis reporting obligations under Section 6045 of the Code. The Indenture Trustee may rely on any such information provided to it or available on the Note Register and shall have no responsibility to verify or ensure the accuracy of such information. The Indenture Trustee shall not have any responsibility or liability for any actions taken or not taken by DTC.
21
[***] = 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.
Section 2.14. Access to List of Noteholders’ Names and Addresses. The Indenture Trustee shall furnish or cause to be furnished to the Transaction Manager within 15 days after receipt by the Indenture Trustee of a request therefor from the Transaction Manager in writing, a list, in such form as the Transaction Manager may reasonably require, of the names and addresses of the Noteholders as of the most recent Record Date.
ARTICLE III
Covenants; Collateral; Representations; Warranties
Section 3.01. Performance of Obligations.
(a) The Issuer will not take any action or permit any action to be taken by others which would release any Person from any of such Person’s covenants or obligations in any Transaction Document or under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as ordered by any bankruptcy or other court or as permitted by, or expressly provided in, this Indenture, the Transaction Documents or such other instrument or agreement.
(b)To the extent consistent with the Issuer Operating Agreement, the Issuer may contract with other Persons to assist it in performing its duties hereunder, and any performance of such duties shall be deemed to be action taken by the Issuer. To the extent that the Issuer contracts with other Persons which include or may include the furnishing of reports, notices or correspondence to the Indenture Trustee, the Issuer shall identify such Persons in a written notice to the Indenture Trustee.
(c)The Issuer shall and shall require that the Depositor, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings and Sol Owner Managing Member characterize (i) (x) the transfer of the Conveyed Property by Sunnova Intermediate Holdings to Sunnova Sol IV Holdings, the transfer of the Conveyed Property by Sunnova Sol IV Holdings to the Depositor and the transfer of the Conveyed Property by the Depositor to the Issuer pursuant to the Contribution Agreement and (y) the transfer of Sol Owner Conveyed Property from Sunnova Intermediate Holdings to Sol Owner Managing Member and from Sol Owner Managing Member to Sol Owner Project Company pursuant to the Sol Owner Contribution Agreement, in each case, as an absolute transfer for legal purposes, (ii) the Grant of the Trust Estate by the Issuer under this Indenture as a pledge for financial accounting purposes, and (iii) the Notes as indebtedness for U.S. federal income tax purposes and for financial accounting purposes (unless otherwise required by Applicable Law). In this regard, the financial statements of SEI and its consolidated subsidiaries will show the Conveyed Property and Sol Owner Conveyed Property as owned by the consolidated group and the Notes as indebtedness of the consolidated group (and will contain appropriate footnotes stating that the assets of the Issuer will not be available to creditors of SEI, Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings or the Depositor or any other Person), and the U.S. federal income Tax Returns of SEI, Sunnova Energy and its consolidated subsidiaries that are regarded entities for U.S. federal income tax purposes will indicate that the Notes are indebtedness unless otherwise required by Applicable Law. The Issuer will cause Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings and the Depositor to file all required Tax Returns and associated forms, reports, schedules and supplements thereto in a manner consistent with such characterizations unless otherwise required by Applicable Law.
22
[***] = 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.
(d)The Issuer covenants to pay, or cause to be paid, all Taxes or other similar charges levied by any governmental authority with regard to the Trust Estate, except to the extent that the validity or amount of such Taxes is contested in good faith, via appropriate Proceedings and with adequate reserves established and maintained therefor in accordance with GAAP.
(e)The Issuer hereby assumes liability for all liabilities associated with the Trust Estate or created under this Indenture, including but not limited to any obligation arising from the breach or inaccuracy of any representation, warranty or covenant of the Issuer set forth herein except as provided in the Transaction Documents. Notwithstanding the foregoing, the Issuer has and shall have no liability with respect to the payment of principal and interest on the Notes, except as otherwise provided in this Indenture.
(f)The Issuer will perform and observe all of its obligations and agreements contained in this Indenture, the Transaction Documents and in the instruments and agreements included in the Trust Estate, including, but not limited to, preparing (or causing to be prepared) and filing (or causing to be filed) all UCC financing statements and continuation statements required to be filed by the terms of this Indenture and the other Transaction Documents in accordance with and within the time periods provided for herein and therein. Except as otherwise expressly provided therein, the Issuer shall not waive, amend, modify, supplement or terminate any Transaction Document or any provision thereof without the consent of the Indenture Trustee (acting at the direction of the Majority Noteholders of the Controlling Class).
(g)If an Event of Default or Transaction Manager Termination Event shall arise from the failure of the Transaction Manager to perform any of its duties or obligations under the Transaction Management Agreement, the Issuer shall take all reasonable steps available to it to remedy such failure, including appointing a Replacement Transaction Manager pursuant to the terms of the Transaction Management Agreement.
(h)The Issuer, or the Transaction Manager on behalf of the Issuer, shall supply to the Indenture Trustee, at the time and in the manner required by applicable Treasury Regulations, for further distribution to such persons, and to the extent required by applicable Treasury Regulations, information with respect to any original issue discount accruing on the Notes.
Section 3.02. Negative Covenants. In addition to the restrictions and prohibitions set forth in Sections 3.04, and 3.10 and elsewhere herein, the Issuer will not:
(a) sell, transfer, exchange or otherwise dispose of any portion of its interest in the Trust Estate except as expressly permitted by this Indenture or the other Transaction Documents; provided, that at any time the Issuer may distribute to the Depositor (i) SRECs, (ii) any SREC Proceeds (unless deposited into and not otherwise withdrawn from the Collection Account), (iii) any Grid Services Net Revenue and Grid Services Customer Payment Amounts and (iv) any proceeds related to Rebates generated with respect to the Solar Assets;
(b)permit the validity or effectiveness of this Indenture or any Grant hereunder or under any other Transaction Document to be impaired or permit any Person to be released from any covenants or obligations under this Indenture, except as may be expressly permitted hereby or under any other Transaction Document;
(c)(i) create, incur or suffer, or permit to be created or incurred or to exist any Lien on any of the Trust Estate or the assets of any Managing Member or Non-Tax Equity Project Company or (ii) permit the Lien created by this Indenture or any other Transaction Document not to constitute a valid first priority, perfected Lien on the Trust Estate or the assets of any
23
[***] = 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.
Managing Member or Non-Tax Equity Project Company pledged to the Indenture Trustee under the Pledge and Security Agreement, in each case subject to Permitted Liens;
(d)take any action or fail to take any action which action or failure to act may cause the Issuer to become classified as an association (or a publicly traded partnership) that is taxable as a corporation for U.S. federal income tax purposes; or
(e)act in violation of its organization documents.
Section 3.03. Money for Note Payments.
(a) All payments with respect to any Notes which are to be made from amounts withdrawn from the Collection Account pursuant to the Priority of Payments shall be made on behalf of the Issuer by the Indenture Trustee, and no amounts so withdrawn from an Account for payments with respect to the Notes shall be paid over to the Issuer under any circumstances except as provided in this Section 3.03 and Article V.
(b)When the Indenture Trustee is not also the Note Registrar, the Issuer shall furnish, or cause the Note Registrar to furnish, with respect to Global Notes, on each Record Date, and with respect to Definitive Notes, no later than the fifth calendar day after each Record Date, a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Noteholders and of the number of individual Notes and the Outstanding Note Balance held by each such Noteholder.
(c)Any money held by the Indenture Trustee in trust for the payment of any amount distributable but unclaimed with respect to any Note shall be held in a non-interest bearing trust account, and if the same remains unclaimed for two years after such amount has become due to such Noteholder, such money shall be discharged from such trust and paid to the Issuer upon an Issuer Order without any further action by any Person; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee with respect to such trust money shall thereupon cease. The Indenture Trustee may adopt and employ, at the expense of the Issuer, any reasonable means of notification of such payment (including, but not limited to, mailing notice of such payment to Noteholders whose Notes have been called but have not been surrendered for prepayment or whose right to or interest in moneys due and payable but not claimed is determinable from the records of the Indenture Trustee, at the last address of record for each such Noteholder).
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[***] = 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.
Section 3.04. Restriction of Issuer Activities. Until the date that is 365 days after the Termination Date, the Issuer will not on or after the date of execution of this Indenture:
(a) engage in any business or investment activities other than those necessary for, incident to, connected with or arising out of, owning and Granting the Trust Estate to the Indenture Trustee for the benefit of the Noteholders, or contemplated hereby, in the Transaction Documents and the Issuer Operating Agreement;
(b) incur any indebtedness secured in any manner by, or having any claim against, the Trust Estate or the Issuer other than indebtedness arising hereunder and in connection with the Transaction Documents and as otherwise expressly permitted in a Transaction Document;
(c) incur any other indebtedness except as permitted in the Issuer Operating Agreement;
(d) amend, or propose to the member of the Depositor for their consent any amendment of, the Issuer Operating Agreement (or, if the Issuer shall be a successor to the Person named as the Issuer in the first paragraph of this Indenture, amend, consent to amendment or propose any amendment of, the governing instruments of such successor), without giving notice thereof in writing, 30 days prior to the date on which such amendment is to become effective, to the Rating Agency;
(e) except as otherwise expressly permitted by this Indenture or the Transaction Documents, sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuer, including those included in the Trust Estate; provided, that at any time the Issuer may distribute to the Depositor (i) SRECs, (ii) any SREC Proceeds (unless deposited into and not otherwise withdrawn from the Collection Account), (iii) any Grid Services Net Revenue and Grid Services Customer Payment Amounts and (iv) any proceeds related to Rebates generated with respect to the Solar Assets;
(f) claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such payments under the Code) or assert any claim against any present or former Noteholder by reason of the payment of the Taxes levied or assessed upon any part of the Trust Estate;
(g) permit the validity or effectiveness of this Indenture to be impaired, or permit the Lien in favor of the Indenture Trustee created by this Indenture or any other Transaction Document to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby;
(h) permit the Lien of this Indenture or any other Transaction Document not to constitute a valid perfected first priority (other than with respect to a Permitted Lien) Lien on the Trust Estate; or
(i) dissolve, liquidate, merge or consolidate with any other Person, other than in compliance with Section 3.10 if any Notes are Outstanding.
25
[***] = 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.
Section 3.05. Protection of Trust Estate.
(a) The Issuer intends the Lien Granted pursuant to this Indenture or any other Transaction Document in favor of the Indenture Trustee for the benefit of the Noteholders to be prior to all other Liens in respect of the Trust Estate or the pledged assets of the Managing Members and Non-Tax Equity Project Companies, subject to Permitted Liens, and the Issuer shall take all actions necessary to obtain and maintain, in favor of the Indenture Trustee and the Noteholders, a first priority, perfected Lien on the Trust Estate and the pledged assets of the Managing Members and Non-Tax Equity Project Companies, subject to Permitted Liens. The Issuer will from time to time prepare, execute (or authorize the filing of) and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance, and other instruments, and will take such other action as may be necessary or advisable to:
(i)provide further assurance with respect to such Grant and/or Grant more effectively all or any portion of the Trust Estate;
(ii)(A) maintain and preserve the Lien (and the priority thereof) in favor of the Indenture Trustee created by this Indenture and any other Transaction Document and (B) enforce the terms and provisions of this Indenture or carry out more effectively the purposes hereof;
(iii)perfect or protect the validity of any Grant made or to be made by this Indenture and any other Transaction Document;
(iv)enforce its rights under the Transaction Documents; or
(v)preserve and defend title to any asset included in the Trust Estate and the pledged assets of the Managing Members and Non-Tax Equity Project Companies and the rights of the Indenture Trustee and of the Noteholders in the Trust Estate and the pledged assets of the Managing Members and Non-Tax Equity Project Companies against the claims of all Persons.
The Issuer shall deliver or cause to be delivered to the Indenture Trustee file stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. The Issuer shall cooperate fully with the Indenture Trustee in connection with the obligations set forth above and will execute (or authorize the filing of) any and all documents reasonably required to fulfill the intent of this Section 3.05.
(b)The Issuer hereby irrevocably appoints the Indenture Trustee as its agent and attorney-in-fact (such appointment being coupled with an interest) to execute, or authorize the filing of, upon the Issuer’s failure to do so, any financing statement or continuation statement required pursuant to this Section 3.05; provided, however, that such designation shall not be deemed to create any duty in the Indenture Trustee to monitor the compliance of the Issuer with the foregoing covenants; and provided further, that the Indenture Trustee shall only be obligated to execute or authorize such financing statement or continuation statement upon written direction of the Transaction Manager and upon written notice to a Responsible Officer of the Indenture Trustee of the failure of the Issuer to comply with the provisions of Section 3.05(a); shall not be required to pay any fees, Taxes or other governmental charges in connection therewith; and shall not be required to prepare any financing statement or continuation statement required pursuant to this Section 3.05 (which shall in each case be prepared by the Issuer or the Transaction
26
[***] = 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.
Manager). The Issuer shall cooperate with the Transaction Manager and provide to the Transaction Manager any information, documents or instruments with respect to such financing statement or continuation statement that the Transaction Manager may reasonably require. Neither the Indenture Trustee nor any of its officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any collateral securing the Notes, for the legality, enforceability, effectiveness or sufficiency of the Transaction Documents or any financing statement or continuation statement for the creation, perfection, continuation, priority, sufficiency or protection of any of the liens, or for any defect or deficiency as to any such matters, for monitoring the status of any lien or performance of the collateral or for the accuracy or sufficiency of any financing statement or continuation statement prepared for its execution or authorization hereunder.
(c)Except as necessary or advisable in connection with the fulfillment by the Indenture Trustee of its duties and obligations described herein or in any other Transaction Document, the Indenture Trustee shall not remove any portion of the Trust Estate that consists of money or is evidenced by an instrument, certificate or other writing from the jurisdiction in which it was held as described in the most recent Opinion of Counsel that was delivered pursuant to Section 3.06 (or from the jurisdiction in which it was held as described in the Opinion of Counsel delivered at the Closing Date pursuant to Section 2.12(c), if no Opinion of Counsel has yet been delivered pursuant to Section 3.06) unless the Indenture Trustee shall have first received an Opinion of Counsel to the effect that the Lien created by this Indenture with respect to such property will continue to be maintained after giving effect to such action or actions.
(d)No later than 30 days prior to any Sunnova Entity making any change in its or their name, identity, jurisdiction of organization or structure which would make any financing statement or continuation statement filed in accordance with Section 3.05(a) above seriously misleading within the meaning of Section 9-506 of the UCC as in effect in New York or wherever else necessary or appropriate under Applicable Law, or otherwise impair the perfection of the Lien on the Trust Estate or the pledged assets of the Managing Members and Non-Tax Equity Project Companies, the Issuer shall give or cause to be given to the Indenture Trustee written notice of any such change and shall file such financing statements or amendments as may be necessary to continue the perfection of the Indenture Trustee's Lien on the Trust Estate or the pledged assets of the Managing Members and Non-Tax Equity Project Companies. None of Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor or the Issuer shall become or seek to become organized under the laws of more than one jurisdiction.
(e)The Issuer shall give the Indenture Trustee written notice at least 30 days prior to any relocation of any Sunnova Entity's respective principal executive office or jurisdiction of organization and whether, as a result of such relocation, the applicable provisions of relevant law or the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement and shall file such financing statements or amendments as may be necessary to continue the perfection of the Indenture Trustee's Lien on the Trust Estate. The Issuer shall at all times maintain its principal executive office and jurisdiction of organization within the United States of America.
27
[***] = 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.
Section 3.06. Opinions and Officer's Certificates as to Trust Estate.
(a) On the Closing Date and, if requested by the Indenture Trustee on the date of each supplemental indenture hereto, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel to the effect that, in the opinion of such counsel, either (i) such action has been taken with respect to the recording and filing of the requisite documents (and assuming the filing of any required financing statements and continuation statements) as are necessary to perfect and make effective the Lien on the Trust Estate in favor of the Indenture Trustee for the benefit of the Noteholders, created by this Indenture, subject to Permitted Liens, and reciting the details of such action or (ii) no such action is necessary to make such Lien effective.
(b) On or before the thirtieth day prior to the fifth anniversary of the Closing Date and every five years thereafter until the earlier of the Rated Final Maturity or the Termination Date, the Issuer shall furnish to the Indenture Trustee an Officer's Certificate either stating that (i) such action has been taken with respect to the recording, filing, re-recording and re-filing of the requisite documents including the filing of any financing statements and continuation statements as is necessary to maintain the Lien created by this Indenture with respect to the Trust Estate and reciting the details of such action or (ii) no such action is necessary to maintain such Lien. The Issuer shall also provide the Indenture Trustee with a file stamped copy of any document or instrument filed as described in such Officer's Certificate contemporaneously with the delivery of such Officer's Certificate. Such Officer's Certificate shall also describe the recording, filing, re-recording and re-filing of the requisite documents, including the filing of any financing statements and continuation statements that will be required to maintain the Lien of this Indenture with respect to the Trust Estate. If the Officer's Certificate delivered to the Indenture Trustee hereunder specifies future action to be taken by the Issuer, the Issuer shall furnish a further Officer's Certificate no later than the time so specified in such former Officer's Certificate to the extent required by this Section 3.06.
Section 3.07. Statement as to Compliance. The Issuer will deliver to the Indenture Trustee, the Rating Agency, the Initial Purchaser and the Placement Agent, within 120 days after the end of each calendar year (beginning with calendar year 2023), an Officer's Certificate of the Issuer stating, as to the signer thereof, that, (a) a review of the activities of the Issuer during the preceding calendar year and of its performance under this Indenture has been made under such officer's supervision, (b) to the best of such officer's knowledge, based on such review, the Issuer has fulfilled all its obligations under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof and remedies therefor being pursued, and (c) to the best of such officer's knowledge, based on such review, no event has occurred and has been waived which is, or after notice or lapse of time or both would become, an Event of Default hereunder or, if such an event has occurred and has not been waived, specifying each such event known to him or her and the nature and status thereof and remedies therefor being pursued.
28
[***] = 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.
Section 3.08. [Reserved].
Section 3.09. Recording. The Issuer will, upon the Closing Date and thereafter from time to time, prepare and cause financing statements and such other instruments as may be required with respect thereto, including without limitation, the Financing Statements to be filed, registered and recorded as may be required by present or future law (with file stamped copies thereof delivered to the Indenture Trustee) to create, perfect and protect the Lien hereof upon the Trust Estate and the pledged assets of the Managing Members and Non-Tax Equity Project Companies, and protect the validity of this Indenture. The Issuer shall, from time to time, perform or cause to be performed any other act as required by law and shall execute (or authorize, as applicable) or cause to be executed (or authorized, as applicable) any and all further instruments (including financing statements, continuation statements and similar statements with respect to any of said documents with file stamped copies thereof delivered to the Indenture Trustee) that are necessary or reasonably requested by the Indenture Trustee for such creation, perfection and protection. The Issuer shall pay, or shall cause to be paid, all filing, registration and recording taxes and fees incident thereto, and all expenses, Taxes and other governmental charges incident to or in connection with the preparation, execution, authorization, delivery or acknowledgment of the recordable documents, any instruments of further assurance, and the Notes.
Section 3.10. Agreements Not to Institute Bankruptcy Proceedings; Additional Covenants; Covenants with Respect to the Managing Members and Project Companies.
(a) The Issuer shall only voluntarily institute any Proceedings to adjudicate the Issuer, a Managing Member or a Project Company as bankrupt or insolvent, consent to the institution of bankruptcy or Insolvency Proceedings against the Issuer, a Managing Member or a Project Company, file a petition seeking or consenting to reorganization or relief under any applicable federal or State law relating to bankruptcy, consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or a substantial part of its property or admit its inability to pay its debts generally as they become due or authorize any of the foregoing to be done or taken on behalf of the Issuer, in accordance with the terms of the Issuer Operating Agreement.
(b) So long as any of the Notes are Outstanding:
(i)The Issuer will keep in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes and each asset included in the Trust Estate.
(ii)The Issuer shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity unless (A) the entity (if other than the Issuer) formed or surviving such consolidation or merger, or that acquires by conveyance or transfer the properties and assets of the Issuer substantially as an entirety, shall be organized and existing under the laws of the United States of America or any State thereof as a special purpose bankruptcy remote entity, and shall expressly assume in form satisfactory to the Rating Agency the obligation to make due and punctual payments of principal and interest on the Notes then Outstanding and the performance of every covenant on the part of the Issuer to be performed or observed pursuant to this Indenture, (B) immediately after giving effect to such transaction, no Default or Event of Default under this Indenture shall have occurred and be continuing, (C) such consolidation, merger, conveyance or transfer would not violate any applicable Designated Transfer Restriction, (D) the Issuer shall have delivered to the Rating Agency
29
[***] = 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 the Indenture Trustee an Officer’s Certificate of the Issuer and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer complies with this Indenture and (E) the Issuer shall have given prior written notice of such consolidation or merger to the Rating Agency.
(iii)The funds and other assets of the Issuer shall not be commingled with those of any other Person except to the extent expressly permitted under the Transaction Documents.
(iv)The Issuer shall not be, become or hold itself out as being liable for the debts of any other Person.
(v)The Issuer shall not form, or cause to be formed, any subsidiaries.
(vi)The Issuer shall act solely in its own name and through its Authorized Officers or duly authorized agents in the conduct of its business, and shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned. The Issuer shall not have any employees other than the Authorized Officers of the Issuer.
(vii)The Issuer shall maintain its records and books of account and shall not commingle its records and books of account with the records and books of account of any other Person. The books of the Issuer may be kept (subject to any provision contained in the applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Issuer Operating Agreement.
(viii)All actions of the Issuer shall be taken by an Authorized Officer of the Issuer (or any Person acting on behalf of the Issuer).
(ix)The Issuer shall not amend its certificate of formation (except as required under Delaware law) or the Issuer Operating Agreement, without first giving prior written notice of such amendment to the Rating Agency (a copy of which shall be provided to the Indenture Trustee).
(x)The Issuer maintains and will maintain the formalities of the form of its organization.
(xi)The annual financial statements of SEI and its consolidated subsidiaries will disclose the effects of the transactions contemplated by the Transaction Documents in accordance with GAAP. Any consolidated financial statements which consolidate the assets and earnings of SEI, Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings or the Depositor with those of the Issuer will contain a footnote to the effect that the assets of the Issuer will not be available to creditors of SEI, Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings or the Depositor or any other Person other than creditors of the Issuer. The financial statements of the Issuer, if any, will disclose that the assets of SEI, Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings and the Depositor are not available to pay creditors of the Issuer.
(xii)Other than certain costs and expenses related to the issuance of the Notes and pursuant to the Performance Guaranty or the Transaction Management Agreement, none of Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings,
30
[***] = 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.
Sunnova Management or the Depositor shall pay the Issuer's expenses, guarantee the Issuer's obligations or advance funds to the Issuer for payment of expenses except for costs and expenses for which Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings or Depositor is required to make payments, in which case the Issuer will reimburse such Person for such payment.
(xiii)All business correspondences of the Issuer are and will be conducted in the Issuer’s own name.
(xiv)Other than as contemplated by the Transaction Documents, no Sunnova Entity acts or will act as agent of the Issuer and the Issuer does not and will not act as agent of any Sunnova Entity.
(xv)[Reserved].
(xvi)The Issuer shall not make any expenditure (by long-term or operating lease or otherwise) to acquire capital assets (either realty or personalty) other than pursuant to the Contribution Agreement.
(xvii)The Issuer shall comply with the requirements of all Applicable Laws, the non-compliance with which would have a Material Adverse Effect with respect to the Issuer.
(xviii)The Issuer shall not, directly or indirectly, (A) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest or security in or of the Issuer or to the Transaction Manager, (B) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (C) set aside or otherwise segregate any amounts for any such purpose; provided, however, that the Issuer may make, or cause to be made, distributions to its beneficial owners, the Transaction Manager, and the Indenture Trustee as permitted by, and to the extent funds are available for such purpose under, this Indenture and the other Transaction Documents (including distributions of any Grid Services Net Revenue, SRECs, SREC Proceeds, or proceeds related to Rebates generated with respect to the Solar Assets). The Issuer will not, directly or indirectly, make payments to or distributions from the Collection Account or any other Account except in accordance with this Indenture and the other Transaction Documents.
(b) So long as any of the Notes remain Outstanding, the Issuer agrees, as the sole member of each Managing Member, that it will:
(i)upon the exercise and completion of a Purchase Option, the Issuer shall (i) instruct the related Partnership Flip Project Company to pay all distributions to be made by such Partnership Flip Project Company to the Issuer in respect of the membership interests of the related Managing Member and the membership interest of the Tax Equity Investor Member directly to the Collection Account, (ii) deliver to the Indenture Trustee the original certificate of the related membership interests of such Managing Member and the related membership interests of the related Tax Equity Investor Member together with instruments of transfer executed in blank, and (iii) cause such Managing Member to amend the related Partnership Flip Project Company LLCA to require such Partnership Flip Project Company to have at all times an Independent Director;
31
[***] = 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)cause such Managing Member to comply with the provisions of its operating agreement and not to take any action that would cause the Managing Member to violate the provisions of its operating agreement;
(iii)cause such Managing Member to maintain all material licenses and permits required to carry on its business as now conducted and in accordance with the provisions of the Transaction Documents, except to the extent the failure to do so could not reasonably be expected to have a material adverse effect on the interests of the Noteholders;
(iv)not permit or consent to the admission of any new member of such Managing Member other than an independent member in accordance with the provisions of the limited liability company agreement of such Managing Member;
(v)cause the Managing Member not to make any material amendment to a Project Company LLCA that could reasonably be expected to have a material adverse effect on the interests of the Noteholders and cause the Managing Member not to make any material amendment to their respective operating agreements that could reasonably be expected to have a material adverse effect on the interests of the Noteholders;
(vi)if applicable, cause such Managing Member (a) to comply with and enforce the provisions of the related Tax Loss Insurance Policies and (b) not to consent to any amendment to the related Tax Loss Insurance Policy to the extent that such amendment would reasonably be expected to have a material adverse effect on the interests of the Noteholders;
(vii)if applicable, so long as such Managing Member is the managing member of a Partnership Flip Project Company, cause the related Partnership Flip Project Company to comply with and enforce the provisions of the related Tax Loss Insurance Policies;
(viii)cause such Managing Member to cause each Project Company to (i) comply with the provisions of each respective Project Company Documents and (ii) not take any action that would violate the provisions of such Project Company Documents, and cause such Managing Member to not to make any material amendment to their respective operating agreement that could reasonably be expected to have a material adverse effect on the interests of the Noteholders;
(ix)cause such Managing Member to cause the related Project Company and cause the Managing Member to maintain all material licenses and permits required to carry on its business as now conducted and in accordance with the provisions of the related Project Company Documents, except to the extent the failure to do so could not reasonably be expected to have a material adverse effect on the interests of the Noteholders;
(x)not consent to the admission of any new member of the related Partnership Flip Project Company other than pursuant to the exercise of the related Purchase Option or the TEP V-E Withdrawal Right, as applicable, or otherwise in connection with any transfer by the Tax Equity Investor Member pursuant to the related Project Company Documents;
32
[***] = 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.
(xi)not consent to or approve any material amendment to the related Project Company LLCA or other Project Company Document that would reasonably be expected to have a material adverse effect on the interests of the Noteholders except to the extent that any such consent is expressly required pursuant to the terms of the applicable Project Company LLCA; and
(xii)to the extent such Managing Member acquires the membership interest of the related Tax Equity Investor Member of the related Partnership Flip Project Company, as a result of any exercise of a Purchase Option, the TEP V-E Withdrawal Right or otherwise, cause such Managing Member to cause such Partnership Flip Project Company to execute and deliver to Indenture Trustee a joinder to the Pledge and Security Agreement, duly executed by such Partnership Flip Project Company, pursuant to which such Partnership Flip Project Company becomes a "Grantor" under the Pledge and Security Agreement thereunder.
Section 3.11. Providing of Notice.
(a) The Issuer, upon learning of any failure on the part of any Sunnova Entity to observe or perform in any material respect any covenant, representation or warranty set forth in any Transaction Document to which it is a party, as applicable, or upon learning of any Default, Event of Default, Transaction Manager Termination Event, Project Company Manager Termination Event or Project Company Servicer Termination Event, proposed amendment of any Project Company Document which could reasonably be expected to be materially adverse to the Noteholders or resignation or removal of the Project Company Manager or Project Company Servicer, shall promptly, and in any event within two (2) Business Days of becoming aware thereof, notify, in writing, the Indenture Trustee and the applicable Sunnova Entities of such failure or Default, Event of Default, Transaction Manager Termination Event, Project Company Manager Termination Event or Project Company Servicer Termination Event, proposed material amendment of any Project Company Document or resignation or removal of the Project Company Manager or Project Company Servicer. The Indenture Trustee, upon receiving such written notice, shall act in accordance with Section 7.02(a) hereof.
(b) The Indenture Trustee, upon receiving written notice from the Issuer of the Performance Guarantor's failure to perform any covenant or obligation of the Performance Guarantor set forth in the Performance Guaranty, shall promptly notify, in writing, the Performance Guarantor of such failure.
33
[***] = 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.
Section 3.12. Representations and Warranties of the Issuer. The Issuer hereby represents and warrants to the Indenture Trustee and the Noteholders that as of the Closing Date and each Transfer Date:
(a)The Issuer is duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware with full power and authority to execute and deliver this Indenture, the Transaction Management Agreement, the Contribution Agreement, the Custodial Agreement and each other Transaction Document to which it is a party and to perform the terms and provisions hereof and thereof; the Issuer is duly qualified to do business as a foreign business entity in good standing, and has obtained all required licenses and approvals, if any, in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications except those jurisdictions in which failure to be so qualified would not have a material adverse effect on the business or operations of the Issuer, the Trust Estate, the Noteholders or the Conveyed Property.
(b)All necessary action has been taken by the Issuer to authorize the Issuer, and the Issuer has full power and authority, to execute, deliver and perform its obligations under this Indenture, the Transaction Management Agreement, the Contribution Agreement, the Custodial Agreement and each other Transaction Document to which it is a party, and no consent or approval of any Person is required for the execution, delivery or performance by the Issuer of this Indenture, the Transaction Management Agreement, the Contribution Agreement, the Custodial Agreement and each other Transaction Document to which it is a party except for any consent or approval that has previously been obtained.
(c)This Indenture, the Transaction Management Agreement, the Contribution Agreement, the Custodial Agreement and each other Transaction Document to which it is a party have been duly executed and delivered, and the execution and delivery of this Indenture, the Transaction Management Agreement, the Contribution Agreement, the Custodial Agreement and each other Transaction Document to which it is a party by the Issuer and its performance and compliance with the terms hereof and thereof will not violate its certificate of formation or the Issuer Operating Agreement or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract or any other material agreement or instrument (including, without limitation, the Transaction Documents) to which the Issuer is a party or which may be applicable to the Issuer or any of its assets.
(d)This Indenture, the Transaction Management Agreement, the Contribution Agreement, the Custodial Agreement and each other Transaction Document to which it is a party constitute valid, legal and binding obligations of the Issuer, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether enforcement is sought in a Proceeding at law or in equity).
(e)The Issuer is not in violation of, and the execution, delivery and performance of this Indenture, the Transaction Management Agreement, the Contribution Agreement, the Custodial Agreement and each other Transaction Document to which it is a party by the Issuer will not constitute a violation with respect to, any order or decree of any court or any order, regulation or demand of any federal, State, municipal or governmental agency, which violation might have consequences that would have a Material Adverse Effect with respect to the Issuer.
34
[***] = 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.
(f)No Proceeding of any kind, including but not limited to litigation, arbitration, judicial or administrative, is pending or, to the Issuer's knowledge, threatened in writing against or contemplated by the Issuer which would have a Material Adverse Effect with respect to the Issuer.
(g)Each of the representations and warranties of the Issuer set forth in the Transaction Management Agreement, the Contribution Agreement, the Issuer Operating Agreement and each other Transaction Document to which it is a party is, as of the Closing Date, true and correct in all material respects.
(h)There are no ongoing material breaches or defaults under the Transaction Documents or any of the Project Company Documents by the Issuer or any of its affiliates or, to its knowledge, as of the Closing Date, any of the other parties to the Transaction Documents or Project Company Documents.
(i)The Issuer has not incurred debt or engaged in activities not related to the transactions contemplated hereunder or under the Transaction Documents except as permitted by the Issuer Operating Agreement or Section 3.04.
(j)The Issuer is not insolvent and did not become insolvent as a result of the Grant pursuant to this Indenture; the Issuer is not engaged and is not about to engage in any business or transaction for which any property remaining with the Issuer is unreasonably small capital or for which the remaining assets of the Issuer are unreasonably small in relation to the business of the Issuer or the transaction; the Issuer does not intend to incur, and does not believe or reasonably should not have believed that it would incur, debts beyond its ability to pay as they become due; and the Issuer has not made a transfer or incurred an obligation and does not intend to make such a transfer or incur such an obligation with actual intent to hinder, delay or defraud any entity to which the Issuer was or became, on or after the date that such transfer was made or such obligation was incurred, indebted.
(k)The proceeds from the issuance of the Notes will be used by the Issuer to (i) pay the Depositor the purchase price for the Conveyed Property pursuant to the Contribution Agreement, (ii) pay certain expenses incurred in connection with the issuance of the Notes and (iii) make the required deposits into the Liquidity Reserve Account and Supplemental Reserve Account. The Depositor will distribute the portion of the proceeds from the sale of the Notes received from the Issuer under clause (i) above to Sunnova Sol IV Holdings, who will distribute such proceeds to Sunnova Intermediate Holdings, who will distribute such proceeds to Sunnova Energy, which will use such proceeds to simultaneously prepay prior financing arrangements of its subsidiaries and to obtain releases of all assets securing such financing arrangements that will form part of the Trust Estate.
(l)(i) The transfer of the Conveyed Property by the Depositor to the Issuer pursuant to the Contribution Agreement is an absolute transfer for legal purposes, (ii) the Grant of the Trust Estate by the Issuer pursuant to the terms of this Indenture is a pledge for financial accounting purposes, and (iii) the Notes will be treated by the Issuer as indebtedness for U.S. federal income tax purposes. In this regard, (i) the financial statements of SEI and its consolidated subsidiaries will show (A) that the Conveyed Property is owned by such consolidated group and (B) that the Notes are indebtedness of the consolidated group (and will contain appropriate footnotes describing that the assets of the Issuer will not be available to creditors of SEI, Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings or the Depositor or any other Person other than creditors of the Issuer), and (ii) the U.S. federal
35
[***] = 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.
income tax returns of SEI and its consolidated subsidiaries that are regarded entities for U.S. federal income tax purposes will indicate that the Notes are indebtedness.
(m)As of the Initial Cut-Off Date, the Aggregate Discounted Solar Asset Balance is at least $[***] and the Securitization Share of DSAB of all Solar Assets is approximately $[***].
(n)The legal name of the Issuer is as set forth in this Indenture; the Issuer has no trade names, fictitious names, assumed names or "doing business as" names.
(o)No item comprising the Conveyed Property has been sold, transferred, assigned or pledged by the Issuer to any Person other than the Indenture Trustee; immediately prior to the pledge of the Conveyed Property to the Indenture Trustee pursuant to this Indenture, the Issuer was the sole owner thereof and had good and indefeasible title thereto, free of any Lien other than Permitted Liens.
(p)Upon (i) the filing of the Perfection UCCs in accordance with Applicable Law, (ii) the execution and delivery by the parties thereto of the Sol Owner Project Company Control Agreement and each Starlane Owner Project Company Control Agreements and (iii) the delivery to the Indenture Trustee of the certificates evidencing the Managing Member Membership Interests and the membership interests of each Managing Member in the related Project Company, together with instruments of transfer, the Indenture Trustee, for the benefit of the Noteholders, shall have a first priority perfected Lien on the Conveyed Property and the other items comprising the Trust Estate and in the proceeds thereof, limited with respect to proceeds to the extent set forth in Section 9-315 of the UCC as in effect in the applicable jurisdiction, subject to Permitted Liens. All filings (including, without limitation, UCC filings) and other actions as are necessary in any jurisdiction to provide third parties with notice of and to document the transfer and assignment of the Trust Estate and the pledged assets of the Managing Members and Non-Tax Equity Project Companies and to give the Indenture Trustee a first priority perfected Lien on the Trust Estate and the pledged assets of the Managing Members and Non-Tax Equity Project Companies (subject to Permitted Liens), including delivery of the Custodian Files to the Custodian and the payment of any fees, have been made or, with respect to Termination Statements, will be made within one Business Day of the Closing Date.
(q)None of (i) the absolute transfer of the Conveyed Property by Sunnova Intermediate Holdings to Sunnova Sol IV Holdings pursuant to the Contribution Agreement, the absolute transfer of the Conveyed Property by Sunnova Sol IV Holdings to the Depositor pursuant to the Contribution Agreement, the absolute transfer of the Conveyed Property by the Depositor to the Issuer pursuant to the Contribution Agreement, (ii) the absolute transfer of the Sol Owner Conveyed Property by Sunnova Intermediate Holdings to Sol Owner Managing Member pursuant to the Sol Owner Contribution Agreement, the absolute transfer of the Sol Owner Assets by Sol Owner Managing Member to Sol Owner Project Company pursuant to the Sol Owner Contribution Agreement or (iii) the Grant by the Issuer to the Indenture Trustee pursuant to this Indenture is subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(r)The Issuer is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Offering Circular, will not be required to register as an "investment company" as such term is defined in the 1940 Act. In making this determination, the Issuer is relying on an exclusion or exemption from the definition of 'investment company" contained in Section 3(a)(1) of the 1940 Act, although additional exclusions or exemptions may be available to the Issuer at the Closing Date or in the future.
36
[***] = 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.
(s)The Issuer is being structured so as not to constitute a "covered fund" for purposes of Section 619 of the Dodd Frank Wall Street Reform and Consumer Protection Act of 2010, based on its current interpretations. In determining that the Issuer is not a "covered fund", the Issuer will not be relying solely on an exclusion or exemption from the definition of "investment company" under the 1940 Act contained in Section 3(c)(1) and/or Section 3(c)(7) of the 1940 Act.
(t)The principal place of business and the chief executive office of the Issuer are located in the State of Texas and the jurisdiction of organization of the Issuer is the State of Delaware, and there are no other such locations.
(u)None of the Sunnova Entities is or as of the Closing Date will be, and, to the knowledge of such Sunnova Entity, no director, officer, agent, employee or affiliate of such Sunnova Entity is or as of the Closing Date will be, the target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC"); and no Sunnova Entity will, in violation of applicable Sanctions, use, directly or indirectly, any of the proceeds of the offering of the Notes contemplated hereby, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of conducting business in or with, engaging in any transaction in or with, or financing the activities of, any country, person, or entity that is the target of any U.S. economic sanctions administered by OFAC.
(v)None of the Sunnova Entities or any of their affiliates nor, to the knowledge of the Sunnova Entities, any of their respective directors, officers, employees or agents, shall use any of the proceeds of the sale of the Notes (i) for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) to make any act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office, (iii) to violate any provision of the U.S. Foreign Corrupt Practices Act of 1977 or similar anti-corruption law to which they are lawfully subject, or (iv) to make, offer, agree, request or take an act in furtherance of any unlawful bribe, or other unlawful benefit, including, without limitation, any unlawful rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit.
(w)Representations and warranties regarding the Lien and Custodian Files, in each case, made as of the Closing Date and each Transfer Date:
(i) The Grant contained in the "Granting Clause" of this Indenture creates a valid and continuing Lien on the Conveyed Property in favor of the Indenture Trustee, which Lien is prior to all other Liens arising under the UCC (other than Permitted Liens), and is enforceable as such against creditors of the Issuer, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity (regardless of whether enforcement is sought in a Proceeding at law or in equity).
(ii)[Reserved].
(iii)Each Managing Member Membership Interest constitutes "investment property" within the meaning of the UCC.
37
[***] = 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 rights to Managing Member Distributions constitute "general intangibles", "accounts" or "chattel paper" within the meaning of the UCC.
(v)The Issuer owns and has good and marketable title to the Conveyed Property free and clear of any Lien, claim or encumbrance of any Person, other than Permitted Liens.
(vi)The Issuer has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the Lien on the Trust Estate granted to the Indenture Trustee hereunder and under the other Transaction Documents.
(vii)The Issuer has received a Closing Date Certification from the Custodian which certifies that the Custodian is holding the Custodian Files that evidence the Solar Assets solely on behalf and for the benefit of the Indenture Trustee.
(viii)Other than Permitted Liens or sales or conveyances permitted by the Transaction Documents, none of the Issuer, any Managing Member or Non-Tax Equity Project Company has pledged, assigned, sold, granted a Lien on, or otherwise conveyed any portion of the Trust Estate or any Collateral pledged pursuant to the Pledge and Security Agreement. The Issuer, a Managing Member or a Project Company has not authorized the filing of and is not aware of any financing statements against the Issuer that include a description of collateral covering any portion of the Trust Estate or any Collateral pledged pursuant to the Pledge and Security Agreement other than any financing statement relating to the security interest granted to the Indenture Trustee hereunder or that have been terminated. The Issuer is not aware of any judgment or tax lien filings against the Issuer.
(ix)The Issuer has taken all action required on its part for control (as defined in Section 8-106 of the UCC) to have been obtained by the Indenture Trustee on behalf of the Noteholders over each Managing Member Membership Interest with respect to which such control may be obtained pursuant to the UCC. No person other than the Indenture Trustee on behalf of the Noteholders has control or possession of all or any part of the Managing Member Membership Interests. Without limiting the foregoing, all certificates evidencing the Managing Member Membership Interests in existence on the date hereof have been delivered to the Indenture Trustee on behalf of the Noteholders.
The foregoing representations and warranties in Section 3.12(w)(i)-(ix) shall remain in full force and effect and shall not be waived or amended until the Notes are paid in full or otherwise released or discharged except in accordance with this Indenture.
38
[***] = 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.
Section 3.13. Representations and Warranties of the Indenture Trustee. The Indenture Trustee hereby represents and warrants to the Rating Agency and the Noteholders that as of the Closing Date:
(a)The Indenture Trustee has been duly organized and is validly existing as a national banking association;
(b)The Indenture Trustee has full power and authority and legal right to execute, deliver and perform its obligations under this Indenture and each other Transaction Document to which it is a party and has taken all necessary action to authorize the execution, delivery and performance by it of this Indenture and each other Transaction Document to which it is a party;
(c)This Indenture and each other Transaction Document to which it is a party have been duly executed and delivered by the Indenture Trustee and constitute the legal, valid, and binding obligations of the Indenture Trustee, enforceable against the Indenture Trustee in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, liquidation, moratorium, fraudulent conveyance, or similar laws affecting creditors’ or creditors of banks’ rights and/or remedies generally or by general principles of equity (regardless of whether such enforcement is sought in a Proceeding in equity or at law);
(d)The execution, delivery and performance of this Indenture and each other Transaction Document to which it is a party by the Indenture Trustee will not constitute a violation with respect to any order or decree of any court or any order, regulation or demand of any federal, State, municipal or governmental agency binding on the Indenture Trustee or such of its property which is material to it, which violation might have consequences that would materially and adversely affect the performance of its duties under this Indenture;
(e)The execution, delivery and performance of this Indenture and each other Transaction Document to which it is a party by the Indenture Trustee do not require any approval or consent of any Person, do not conflict with the Articles of Association and Bylaws of the Indenture Trustee, and do not and will not conflict with or result in a breach which would constitute a material default under any agreement applicable to it or such of its property which is material to it; and
(f)No Proceeding of any kind, including but not limited to litigation, arbitration, judicial or administrative, is pending or, to the Indenture Trustee’s knowledge, threatened against or contemplated by the Indenture Trustee which would have a reasonable likelihood of having an adverse effect on the execution, delivery, performance or enforceability of this Indenture or any other Transaction Document to which it is a party by or against the Indenture Trustee.
39
[***] = 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.
Section 3.14. Knowledge. Any references herein to the knowledge, discovery or learning of the Issuer or the Transaction Manager shall mean and refer to an Authorized Officer of the Issuer or the Transaction Manager, as applicable.
Section 3.15. Capital Contributions. Nothing herein shall prevent any direct or indirect member of the Issuer from making capital contributions to the Issuer, a Managing Member or a Project Company, which capital contribution shall be effected directly by such direct or indirect member to the Issuer, the applicable Managing Member or the applicable Project Company, and the Lien of this Indenture shall not attach to any such capital contribution.
Section 3.16. Rule 144A Information. So long as any of the Notes are outstanding, and the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Noteholder, the Issuer shall promptly furnish at such Noteholder’s expense to such Noteholder, and the prospective purchasers designated by such Noteholder, the information required to be delivered pursuant to Rule 144A(d)(4)(i) under the Securities Act in order to permit compliance with Rule 144A under the Securities Act in connection with the resale of such Notes by such Noteholder.
ARTICLE IV
Management, Administration and Servicing
Section 4.01. Transaction Management Agreement.
(a) The Transaction Management Agreement, duly executed counterparts of which have been received by the Indenture Trustee, sets forth the covenants and obligations of the Transaction Manager with respect to the Trust Estate and other matters addressed in the Transaction Management Agreement, and reference is hereby made to the Transaction Management Agreement for a detailed statement of said covenants and obligations of the Transaction Manager thereunder. The Issuer agrees that the Indenture Trustee, in its name or (to the extent required by law) in the name of the Issuer, may (but is not, unless so directed and indemnified by the Majority Noteholders of the Controlling Class, required to) enforce all rights of the Issuer under the Transaction Management Agreement for and on behalf of the Noteholders whether or not a Default has occurred and has not been waived.
(b)Promptly following a request from the Indenture Trustee (acting at the direction of the Majority Noteholders of the Controlling Class) to do so, the Issuer shall take all such commercially reasonable lawful action as the Indenture Trustee may request to compel or secure the performance and observance by the Transaction Manager of each of its obligations to the Issuer and with respect to the Trust Estate under or in connection with the Transaction Management Agreement, in accordance with the terms thereof, and in effecting such request shall exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with the Transaction Management Agreement to the extent and in the manner directed by the Indenture Trustee, including, without limitation, the transmission of notices of default on the part of the Transaction Manager thereunder and the institution of Proceedings to compel or secure performance by the Transaction Manager of each of its obligations under the Transaction Management Agreement.
(c)The Issuer shall not waive any default by the Transaction Manager under the Transaction Management Agreement without the written consent of the Indenture Trustee (which shall be given at the written direction of the Majority Noteholders of the Controlling Class).
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[***] = 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.
(d)The Indenture Trustee does not assume any duty or obligation of the Issuer under the Transaction Management Agreement, and the rights given to the Indenture Trustee thereunder are subject to the provisions of Article VII.
(e)The Issuer has not and will not provide any payment instructions to any Host Customer, PBI Obligor or TREC Obligor that are inconsistent with the Transaction Documents or Project Company Documents.
(f)With respect to the Transaction Manager’s obligations under Section 4.3 of the Transaction Management Agreement, the Indenture Trustee shall not have any responsibility to the Issuer, the Transaction Manager or any party hereunder to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of the Independent Accountant or any Qualified Service Provider by the Transaction Manager; provided, however, that the Indenture Trustee shall be authorized, upon receipt of written direction from the Transaction Manager directing the Indenture Trustee, to execute any acknowledgment or other agreement with the Independent Accountant and any Qualified Service Provider required for the Indenture Trustee to receive any of the reports or instructions provided for herein, which acknowledgment or agreement may include, among other things, (i) acknowledgement that the Transaction Manager has agreed that the procedures to be performed by the Independent Accountant and any Qualified Service Provider are sufficient for the Issuer's purposes, (ii) acknowledgment that the Indenture Trustee has agreed that the procedures to be performed by the Independent Accountant and any Qualified Service Provider are sufficient for the Indenture Trustee's purposes and that the Indenture Trustee's purposes is limited solely to receipt of the report, (iii) releases by the Indenture Trustee (on behalf of itself and the Noteholders) of claims against the Independent Accountant and any Qualified Service Provider and acknowledgement of other limitations of liability in favor of the Independent Accountant and any Qualified Service Provider, and (iv) restrictions or prohibitions on the disclosure of information or documents provided to it by the Independent Accountant or any Qualified Service Provider (including to the Noteholders). Notwithstanding the foregoing, in no event shall the Indenture Trustee be required to execute any agreement in respect of the Independent Accountant or any Qualified Service Provider that the Indenture Trustee determines adversely affects it in its individual capacity or which is in a form that is not reasonably acceptable to the Indenture Trustee.
(g)In the event such Independent Accountant or any Qualified Service Provider require the Indenture Trustee, the Transaction Manager or the Transaction Transition Manager to agree to the procedures to be performed by such firm in any of the reports required to be prepared pursuant to Section 4.01(f), the Transaction Manager shall direct the Indenture Trustee or the Transaction Transition Manager in writing to so agree; it being understood and agreed that the Indenture Trustee or the Transaction Transition Manager will deliver such letter of agreement in conclusive reliance upon the direction of the Transaction Manager, and the Indenture Trustee or the Transaction Transition Manager has not made any independent inquiry or investigation as to, and shall have no obligation or liability in respect of, the sufficiency, validity or correctness of such procedures. The Indenture Trustee or the Transaction Transition Manager shall not be liable for any claims, liabilities or expenses relating to such accountants' engagement or any report issued in connection with such engagement, and the dissemination of any such report is subject to the written consent of the accountants.
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[***] = 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.
ARTICLE V
Accounts, Collections, Payments of Interest and Principal, Releases, and Statements to Noteholders
Section 5.01. Accounts.
(a) (i) On or prior to the Closing Date, the Issuer shall cause the Indenture Trustee to open and maintain in the name of the Indenture Trustee, for the benefit of the Noteholders, an Eligible Account (the "Collection Account"), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. The Collection Account shall initially be established with the Indenture Trustee.
(ii)On or prior to the Closing Date, the Issuer shall cause the Indenture Trustee to open and maintain in the name of the Indenture Trustee, for the benefit of the Noteholders, an Eligible Account (the "Supplemental Reserve Account"), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. The Supplemental Reserve Account shall initially be established with the Indenture Trustee.
(iii)On or prior to the Closing Date, the Issuer shall cause the Indenture Trustee to open and maintain in the name of the Indenture Trustee, for the benefit of the Noteholders, an Eligible Account (the "Liquidity Reserve Account" and together with the Collection Account and the Supplemental Reserve Account, the "Accounts"), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Noteholders. The Liquidity Reserve Account shall initially be established with the Indenture Trustee.
(iv)Sunnova Energy has established and maintains an Eligible Account (the "Host Customer Deposit Account").
(b)Funds on deposit in the Collection Account, the Supplemental Reserve Account and the Liquidity Reserve Account shall be invested by the Indenture Trustee (or any custodian with respect to funds on deposit in any such account) in Eligible Investments selected in writing by the Transaction Manager (pursuant to standing instructions or otherwise). All such Eligible Investments shall be held by or on behalf of the Indenture Trustee for the benefit of the Noteholders.
(c)All investment earnings of moneys pursuant to Section 5.01(b) deposited into the Collection Account, the Supplemental Reserve Account and the Liquidity Reserve Account shall be deposited (or caused to be deposited) by the Indenture Trustee into the Collection Account, and any loss resulting from such investments shall be charged to such Account. No investment of any amount held in any of the Collection Account, the Supplemental Reserve Account and the Liquidity Reserve Account shall mature later than the Business Day immediately preceding the Payment Date which is scheduled to occur immediately following the date of investment. The Transaction Manager, on behalf of the Issuer, will not direct the Indenture Trustee to make any investment of any funds held in any of the Accounts unless the security interest Granted and perfected in such account will continue to be perfected in such investment, in either case without any further action by any Person.
(d)The Indenture Trustee shall not in any way be held liable by reason of any insufficiency in any of the Accounts resulting from any loss on any Eligible Investment included
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therein except for losses attributable to the Indenture Trustee’s negligence or bad faith, or its failure to make payments on such Eligible Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as Indenture Trustee, in accordance with their terms.
(e)The Indenture Trustee may purchase from or sell to itself or an Affiliate, as principal or agent, the Eligible Investments. With respect to clause (v) of the definition of "Eligible Investments", Wilmington Trust, or an Affiliate thereof may charge and collect such fees from such funds as are collected customarily for services rendered to such funds (but not to exceed investments earnings thereon).
(f)Funds on deposit in any Account shall remain uninvested if (i) the Transaction Manager shall have failed to give investment directions in writing for any funds on deposit in any Account to the Indenture Trustee by 1:00 p.m. Eastern time (or such other time as may be agreed by the Transaction Manager and the Indenture Trustee) on the Business Day on which such investment is to be made; or (ii) based on the actual knowledge of, or receipt of written notice by, a Responsible Officer of the Indenture Trustee, a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable, or, if such Notes shall have been declared due and payable following an Event of Default, amounts collected or receivable from the Trust Estate are being applied as if there had not been such a declaration.
(g)[Reserved].
(h)(i) The Indenture Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Accounts and in all proceeds thereof (including, without limitation, all investment earnings on the Accounts) and all such funds, investments, proceeds and income shall be part of the Trust Estate. Except as otherwise provided herein, the Accounts shall be under the control (as defined in Section 9-104 of the UCC to the extent such account is a deposit account and Section 8-106 of the UCC to the extent such account is a securities account) of the Indenture Trustee for the benefit of the Noteholders. If, at any time, any of the Accounts ceases to be an Eligible Account, the Indenture Trustee (or the Transaction Manager on its behalf) shall within five Business Days (or such longer period as to which the Rating Agency may consent) establish a new Account as an Eligible Account and shall transfer any cash and/or any investments to such new Account. The Transaction Manager agrees that, in the event that any of the Accounts or the Host Customer Deposit Account are not accounts with the Indenture Trustee, the Transaction Manager shall notify the Indenture Trustee in writing promptly upon any of such Accounts or the Host Customer Deposit Account ceasing to be an Eligible Account.
(ii) With respect to the Account Property, the Indenture Trustee agrees that:
(A)any Account Property that is held in deposit accounts shall be held solely in Eligible Accounts; and, except as otherwise provided herein, each such Eligible Account shall be subject to the exclusive custody and control of the Indenture Trustee, and the Indenture Trustee shall have sole signature authority with respect thereto;
(B)any Account Property that constitutes physical property shall be delivered to the Indenture Trustee in accordance with paragraph (i)(A) or (i)(B), as applicable, of the definition of "Delivery" and shall be held, pending maturity or disposition, solely by the Indenture Trustee or a securities intermediary (as
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such term is defined in Section 8-102(a)(14) of the UCC) acting solely for the Indenture Trustee;
(C)any Account Property that is a book-entry security held through the Federal Reserve System pursuant to federal book-entry regulations shall be delivered in accordance with paragraph (i)(C) or (i)(E), as applicable, of the definition of "Delivery" and shall be maintained by the Indenture Trustee, pending maturity or disposition, through continued book-entry registration of such Account Property as described in such paragraph;
(D)any Account Property that is an "uncertificated security" under Article 8 of the UCC and that is not governed by clause (C) above shall be delivered to the Indenture Trustee in accordance with paragraph (i)(D) of the definition of "Delivery" and shall be maintained by the Indenture Trustee, pending maturity or disposition, through continued registration of the Indenture Trustee’s (or its nominee’s) ownership of such security;
(E)the Transaction Manager shall have the power, revocable by the Indenture Trustee upon the occurrence of a Transaction Manager Termination Event, to instruct the Indenture Trustee to make withdrawals and payments from the Accounts for the purpose of permitting the Transaction Manager and the Indenture Trustee to carry out their respective duties hereunder; and
(F)any Account held by it hereunder shall be maintained as a "securities account" as defined in the Uniform Commercial Code as in effect in New York (the "New York UCC"), and that it shall be acting as a "securities intermediary" for the Indenture Trustee itself as the "entitlement holder" (as defined in Section 8-102(a)(7) of the New York UCC) with respect to each such Account. The parties hereto agree that each Account shall be governed by the laws of the State of New York, and regardless of any provision in any other agreement, the "securities intermediary’s jurisdiction" (within the meaning of Section 8-110 of the New York UCC) shall be the State of New York. The Indenture Trustee acknowledges and agrees that (1) each item of property (whether investment property, financial asset, security, instrument or cash) credited to the Accounts shall be treated as a "financial asset" within the meaning of Section 8-102(a)(9) of the New York UCC and (2) notwithstanding anything to the contrary, if at any time the Indenture Trustee shall receive any order from the Indenture Trustee (in its capacity as securities intermediary) directing transfer or redemption of any financial asset relating to the Accounts, the Indenture Trustee shall comply with such entitlement order without further consent by the Issuer, or any other person. In the event of any conflict of any provision of this Section 5.01(h)(ii)(F) with any other provision of this Indenture or any other agreement or document, the provisions of this Section 5.01(h)(ii)(F) shall prevail.
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[***] = 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.
Section 5.02. Supplemental Reserve Account.
(a) (i) On the Closing Date, the Issuer will deliver to the Indenture Trustee amounts equal to the Supplemental Reserve Account Closing Date Deposit for deposit into the Supplemental Reserve Account. On each Payment Date, to the extent of Available Funds and in accordance with and subject to the Priority of Payments, the Indenture Trustee shall, based on the Quarterly Transaction Report, deposit into the Supplemental Reserve Account an amount equal to the Supplemental Reserve Account Deposit until the amount on deposit equals the Supplemental Reserve Required Amount.
(ii)The Indenture Trustee shall release funds from the Supplemental Reserve Account to pay the following amounts as directed by the Transaction Manager set forth in an Officer’s Certificate in a form reasonably satisfactory to the Indenture Trustee (no more than once per calendar month and, in each case with a reasonable volume of payment instructions delivered to the Indenture Trustee) at least two (2) Business Days in advance; provided that if the amount available in the Supplemental Reserve Account is less than all such amounts, the Indenture Trustee shall release such funds in the following order of priority:
(A) the costs (inclusive of labor costs, if applicable) of replacement of (x) any Inverter or Energy Storage System that no longer has the benefit of a Manufacturer Warranty or (y) any communication device for which the Project Company Manager is not obligated under the related Project Company Management Agreement to cover the replacement costs of such communication device, Inverter or Energy Storage System (or if so obligated, fails to pay such costs), for the purpose of funding a loan by related Managing Member to the related Project Company to pay for the replacement of such communication device, Inverter or Energy Storage System (or, if such a loan would not be permitted under the applicable Project Company LLCA, related Managing Member shall provide such amount in the form of an additional capital contribution to the Project Company); and
(B) the TEP V-E Withdrawal Amount when due and payable under the terms of the related Project Company LLCA.
(iii)On each Payment Date, if the amount of Available Funds (after giving effect to all amounts deposited into the Collection Account from the Liquidity Reserve Account) is less than the amount necessary to make the distributions described in clauses (i) through (v) of the Priority of Payments, an amount equal to the lesser of (i) the amount on deposit in the Supplemental Reserve Account and (ii) the amount of such insufficiency, will be withdrawn from the Supplemental Reserve Account and deposited into the Collection Account to be used as Available Funds.
(iv)If the amount on deposit in the Supplemental Reserve Account exceeds the Supplemental Reserve Required Amount on any Payment Date, the amount of such excess shall be transferred to the Collection Account for distribution as part of Available Funds pursuant to the Priority of Payments.
(v)All amounts on deposit in the Supplemental Reserve Account will be withdrawn and deposited into the Collection Account on the earlier of (i) the Rated Final Maturity and (ii) a Voluntary Prepayment Date in connection with a Voluntary Prepayment of each Class of Notes in whole.
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[***] = 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.
(b) Notwithstanding Section 5.02(a)(i), in lieu of or in substitution for moneys otherwise required to be deposited to the Supplemental Reserve Account, the Issuer (or the Transaction Manager on behalf of the Issuer) may deliver or cause to be delivered to the Indenture Trustee a Letter of Credit issued by an Eligible Letter of Credit Bank in an amount equal to the Supplemental Reserve Required Amount; provided that any Supplemental Reserve Account Deposit required to be made after the replacement of amounts on deposit in the Supplemental Reserve Account with the Letter of Credit shall be made in deposits to the Supplemental Reserve Account as provided in the Priority of Payments or pursuant to an increase in the Letter of Credit, or addition of another Letter of Credit. The Letter of Credit shall be held as an asset of the Supplemental Reserve Account and valued for purposes of determining the amount on deposit in the Supplemental Reserve Account as the amount then available to be drawn on such Letter of Credit. Any references in the Transaction Documents to amounts on deposit in the Supplemental Reserve Account shall include the value of the Letter of Credit unless specifically excluded. If the amounts on deposit in the Supplemental Reserve Account are represented by a Letter of Credit, the Indenture Trustee shall be required to submit the drawing documents to the Eligible Letter of Credit Bank to draw the full stated amount of the Letter of Credit and deposit the proceeds therefrom in the Supplemental Reserve Account in the following circumstances: (i) if the Indenture Trustee is directed by the Transaction Manager on behalf of the Issuer, pursuant to an Officer’s Certificate, to withdraw funds from the Supplemental Reserve Account for any reason; (ii) if the Letter of Credit is scheduled to expire in accordance with its terms and has not been extended or replaced with a Letter of Credit issued by an Eligible Letter of Credit Bank by the date that is ten days prior to the expiration date; or (iii) if the Indenture Trustee is directed by the Issuer, the Transaction Manager or the Majority Noteholders of the Controlling Class, pursuant to an Officer’s Certificate stating that the financial institution issuing the Letter of Credit ceases to be an Eligible Letter of Credit Bank. Any drawing on the Letter of Credit may be reimbursed by the Issuer only from amounts remitted to the Issuer pursuant to clause (xvi) of the Priority of Payments. The delivery of any original Letter of Credit or documents related thereto shall be made to the Indenture Trustee at its address set forth in Section 12.04.
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[***] = 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.
Section 5.03. Liquidity Reserve Account.
(a) On the Closing Date, the Issuer shall deposit or cause to be deposited an amount equal to the Liquidity Reserve Account Floor Amount into the Liquidity Reserve Account.
(b)As described in the Priority of Payments, to the extent of Available Funds, the Indenture Trustee shall, on each Payment Date, deposit Available Funds into the Liquidity Reserve Account until the amount on deposit therein shall equal the Liquidity Reserve Account Floor Amount.
(c)On the Business Date prior to each Payment Date, the Indenture Trustee shall, based on the Quarterly Transaction Report, transfer funds on deposit in the Liquidity Reserve Account into the Collection Account to the extent the amount on deposit in the Collection Account as of such Payment Date is less than the amount necessary to make the distributions described in clauses (i) through (v) of the Priority of Payments. Based on the Quarterly Transaction Report, (i) if the amount on deposit in the Liquidity Reserve Account exceeds the Liquidity Reserve Account Floor Amount on any Payment Date during a Regular Amortization Period, the amount of such excess will be transferred into the Supplemental Replacement Reserve Account and (ii) if the amount on deposit in the Supplemental Reserve Account exceeds the Supplemental Reserve Account Required Balance on such Payment Date, the amount of such excess will be transferred to the Collection Account and will be part of Available Funds distributed pursuant to the Priority of Payments. Based on the Quarterly Transaction Report, if the amount on deposit in the Liquidity Reserve Account exceeds the Liquidity Reserve Account Floor Amount on any Payment Date during an Early Amortization Period or Sequential Interest Amortization Period, the amount of such excess will be transferred to the Collection Account and will be part of the Available Funds distributed pursuant to the Priority of Payments.
(d)All amounts on deposit in the Liquidity Reserve Account will be withdrawn and deposited into the Collection Account on the earliest of (i) the Rated Final Maturity, (ii) the acceleration of the Notes following an Event of Default, (iii) a Voluntary Prepayment Date in connection with a Voluntary Prepayment of each Class of Notes in whole and (iv) the Payment Date on which the sum of Available Funds and the amount on deposit in the Liquidity Reserve Account is greater than or equal to the sum of (a) the payments and distributions required under clauses (i) through (v) in the Priority of Payments, (b) all accrued and unpaid interest on the Notes (including any Class B Deferred Interest, Post-ARD Additional Note Interest or Deferred Post-ARD Additional Note Interest) and (c) the Aggregate Outstanding Note Balance as of such Payment Date prior to any distributions made on such Payment Date and in any event not later than the Business Day prior to such Payment Date.
(e)Notwithstanding Section 5.03(a), in lieu of or in substitution for moneys otherwise required to be deposited to the Liquidity Reserve Account, the Issuer (or the Transaction Manager on behalf of the Issuer) may deliver or cause to be delivered to the Indenture Trustee a Letter of Credit issued by an Eligible Letter of Credit Bank in an amount equal to the Liquidity Reserve Account Floor Amount; provided that any deposit into the Liquidity Reserve Account required to be made after the replacement of amounts on deposit in the Liquidity Reserve Account with the Letter of Credit shall be made in deposits to the Liquidity Reserve Account as provided in the Priority of Payments or pursuant to an increase in the Letter of Credit, or addition of another Letter of Credit. The Letter of Credit shall be held as an asset of the Liquidity Reserve Account and valued for purposes of determining the amount on deposit in the Liquidity Reserve Account as the amount then available to be drawn on such Letter of Credit. Any references in the Transaction Documents to amounts on deposit in the Liquidity Reserve Account shall include the value of the Letter of Credit unless specifically
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excluded. If the amounts on deposit in the Liquidity Reserve Account are represented by a Letter of Credit, the Indenture Trustee shall be required to submit the drawing documents to the Eligible Letter of Credit Bank to draw the full stated amount of the Letter of Credit and deposit the proceeds therefrom in the Liquidity Reserve Account in the following circumstances: (i) if the Indenture Trustee is directed by the Transaction Manager on behalf of the Issuer, pursuant to an Officer’s Certificate, to withdraw funds from the Liquidity Reserve Account for any reason; (ii) if the Letter of Credit is scheduled to expire in accordance with its terms and has not been extended or replaced with a Letter of Credit issued by an Eligible Letter of Credit Bank by the date that is ten days prior to the expiration date; or (iii) if the Indenture Trustee is directed by the Issuer, the Transaction Manager or the Majority Noteholders of the Controlling Class, pursuant to an Officer’s Certificate stating that the financial institution issuing the Letter of Credit ceases to be an Eligible Letter of Credit Bank. Any drawing on the Letter of Credit may be reimbursed by the Issuer only from amounts remitted to the Issuer pursuant to clause (xvi) of the Priority of Payments. The delivery of any original Letter of Credit or documents related thereto shall be made to the Indenture Trustee at its address set forth in Section 12.04.
Section 5.04. [Reserved].
Section 5.05. Collection Account.
(a) On the Closing Date, the Transaction Manager, on behalf of the Issuer as owner of each Managing Member, shall have instructed each Managing Member to direct the related Project Company to pay all Managing Member Distributions to the Collection Account. The Issuer shall cause all other amounts required to be deposited therein pursuant to the Transaction Documents, to be deposited within one Business Day of receipt thereof. The Indenture Trustee shall provide or make available electronically (or upon written request, by first class mail or facsimile) monthly statements on all amounts received in the Collection Account to the Issuer and the Transaction Manager.
(b)The Transaction Manager will be entitled to be reimbursed from amounts on deposit in the Collection Account with respect to a Collection Period for amounts previously deposited in the Collection Account but later determined by the Transaction Manager to have resulted from mistaken deposits or postings or checks returned for insufficient funds. The amount to be reimbursed hereunder shall be paid to the Transaction Manager on the related Payment Date upon certification by the Transaction Manager of such amounts; provided, however, that the Transaction Manager must provide such certification prior to the Determination Date immediately following such mistaken deposit, posting or returned check or costs and expenses, as applicable.
(c)The Indenture Trustee shall make distributions from the Collection Account as directed by the Transaction Manager in accordance with the Transaction Management Agreement.
(d)In accordance with Section 6.01(b) hereof, upon written direction from the Transaction Manager, the Indenture Trustee shall withdraw the partial Voluntary Prepayment from the Collection Account on the related Voluntary Prepayment Date and distribute the same in accordance with such written direction.
(e)The Issuer may direct the Indenture Trustee to withdraw proceeds from Grid Services Net Revenue, Rebates and SREC Proceeds from the Collection Account for distribution to the Depositor and the Indenture Trustee shall distribute such amounts to the Depositor on or prior to the next Determination Date (without requiring an Opinion of Counsel). To the extent
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[***] = 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.
proceeds from Grid Services Net Revenue, Rebates or SREC Proceeds on deposit in the Collection Account are not withdrawn by the next Determination Date succeeding their deposit therein, such amounts shall constitute Available Funds on the related Payment Date.
(f)If the amount on deposit in the Supplemental Reserve Account is less than the amount required to pay the TEP V-E Withdrawal Amount when due and payable under the related Project Company LLCA pursuant to Section 5.02(a)(ii), the Transaction Manager shall direct the Indenture Trustee, by delivery of an Officer's Certificate in form reasonably satisfactory to the Indenture Trustee, to release funds from the Collection Account in an amount equal to the lesser of (i) the amount sufficient to satisfy the difference between the TEP V-E Withdrawal Amount and the amount on deposit in the Supplemental Reserve Account and (ii) the amount on deposit in the Collection Account.
Section 5.06. Distribution of Funds in the Collection Account.
(a) On each Payment Date or Voluntary Prepayment Date with respect to payment of the Notes in full, Available Funds on deposit in the Collection Account shall be distributed by the Indenture Trustee, based solely on the information set forth in the related Quarterly Transaction Report or Voluntary Prepayment Transaction Manager Report, as applicable, in the following order and priority of payments (the "Priority of Payments"):
(i)(A) to the Indenture Trustee, (1) the Indenture Trustee Fee for such Payment Date and (2)(x) any accrued and unpaid Indenture Trustee Fees with respect to prior Payment Dates plus (y) out-of-pocket expenses and indemnities of the Indenture Trustee incurred and not reimbursed in connection with its obligations and duties under this Indenture and (B) to the Transaction Transition Manager (1) the Transaction Transition Manager Fee and any accrued and unpaid Transaction Transition Manager Fees with respect to prior Payment Dates, (2) Transaction Transition Manager Expenses and (3) any accrued and unpaid transition costs payable to the Transaction Transition Manager; provided that unless an Event of Default of the type described in clauses (a), (b), (c) or (k) of the definition thereof has occurred and is continuing, payments to the Indenture Trustee as reimbursement for clause (A)(2)(y) and to the Transaction Transition Manager as reimbursement for clause (B)(2) will be limited to $75,000 in the aggregate per calendar year; provided, further, that the payments to the Transaction Transition Manager as reimbursement for clause (B)(3) will be limited to $150,000 per transition occurrence and $300,000 in the aggregate;
(ii)to the Transaction Manager, the Transaction Manager Fee, plus any accrued and unpaid Transaction Manager Fees with respect to prior Payment Dates;
(iii)to the Custodian, the Custodian Fee, plus any accrued and unpaid Custodian Fees with respect to prior Payment Dates plus certain extraordinary out-of-pocket expenses and indemnities of the Custodian incurred and not reimbursed in connection with its obligations and duties under the Custodial Agreement, provided, that payments to the Custodian as reimbursement for any such expenses and indemnities will be limited to $25,000 per calendar year as long as no Event of Default has occurred, and the Notes have not been accelerated, or the Trust Estate sold, pursuant to this Indenture;
(iv)to the Class A Noteholders, the Note Interest with respect to the Class A Notes for such Payment Date;
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(v)to the Class B Noteholders, the Note Interest with respect to the Class B Notes for such Payment Date;
(vi)to the Liquidity Reserve Account, any amount greater than zero equal (A) the Liquidity Reserve Account Floor Amount minus (B) the amount on deposit in the Liquidity Reserve Account on such Payment Date;
(vii)to the Supplemental Reserve Account, the Supplemental Reserve Account Deposit;
(viii)to the Noteholders:
(A) during a Regular Amortization Period, in the following order: (1) to the Class A Noteholders, the related Scheduled Note Principal Payment for such Payment Date, (2) to the Class B Noteholders, the related Scheduled Note Principal Payment for such Payment Date, (3) to the Class A Noteholders, the Unscheduled Note Principal Payment for such Payment Date until the Outstanding Note Balance of the Class A Notes has been reduced to zero, (4) to the Class B Noteholders, any Unscheduled Note Principal Payment for such Payment Date remaining after payment to the Class A Noteholders until the Outstanding Note Balance of the Class B Notes has been reduced to zero and (5) to the Class B Noteholders, any unpaid Class B Deferred Interest; and
(B) during an Early Amortization Period or Sequential Interest Amortization Period, all remaining Available Funds will be distributed in the following order: (1) to the Class A Noteholders until the Outstanding Note Balance of the Class A Notes has been reduced to zero and (2) to the Class B Noteholders in the following order: (A) to reduce the Outstanding Note Balance of the Class B Notes to zero and (B) to pay any unpaid Class B Deferred Interest;
(ix)(a) 89.25% of the Additional Principal Amount for such Payment Date (1) to the Class A Noteholders until the Outstanding Note Balance of the Class A Notes has been reduced to zero and (2) then to the Class B Noteholders until the Outstanding Note Balance of the Class B Notes has been reduced to zero, and (b) 10.75% of the Additional Principal Amount for such Payment Date (1) to the Class B Noteholders until the Outstanding Note Balance of the Class B Notes has been reduced to zero and (2) then to the Class A Noteholders until the Outstanding Note Balance of the Class A Notes has been reduced to zero;
(x)to the Indenture Trustee and the Transaction Transition Manager, pro rata, any incurred and not reimbursed out-of-pocket expenses and indemnities of the Indenture Trustee and Transaction Transition Manager Expenses and transition costs, in each case to the extent not paid in accordance with clause (i) above;
(xi)to the Custodian, any extraordinary out-of-pocket expenses and indemnities of the Custodian incurred and not reimbursed in connection with the obligations and duties under the Custodial Agreement, to the extent not paid in accordance with clause (iii) above;
(xii)first, to the Class A Noteholders and second, to the Class B Noteholders, their respective Make Whole Amount, if any;
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[***] = 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.
(xiii)first, to the Class A Noteholders and second, to the Class B Noteholders, their respective Post-ARD Additional Note Interest and Deferred Post-ARD Additional Note Interest due on such Payment Date, if any;
(xiv)to the Noteholders, any Voluntary Prepayment:
(A)if no Sequential Interest Amortization Period is then in effect, to the Class A Noteholders and the Class B Noteholders on a pro rata basis; and
(B)if a Sequential Interest Amortization Period is then in effect, first to the Class A Noteholders until the Outstanding Note Balance of the Class A Notes has been reduced to zero and second to the Class B Noteholders until the Outstanding Note Balance of the Class B Notes has been reduced to zero;
(xv)to the Eligible Letter of Credit Bank or other party as directed by the Transaction Manager (A) any fees and expenses related to the Letter of Credit and (B) any amounts which have been drawn under the Letter of Credit and any interest due thereon; and
(xvi)to or at the direction of the Issuer, any remaining Available Funds on deposit in the Collection Account.
Section 5.07. Equity Cure.
(a)In the event that the sum of the amounts received in clause (i)(A) of the definition of DSCR results in the DSCR for any Collection Period to be less than 1.25 (any such event, a "Potential Equity Cure Event"), then on or prior to the date that is one Business Day prior to the related Determination Date, Sunnova Energy may, in its sole and absolute discretion, make a payment to the Issuer (as an indirect cash equity capital contribution through the Depositor, to be immediately deposited into the Collection Account and be part of Available Funds) in an amount equal to the amount in cash that, if deemed added to the sum specified in clause (i)(A) of the definition of DSCR, would cause the DSCR to be greater than 1.25 (each such payment by Sunnova Energy, an "Equity Cure Payment").
(b)In the event that Sunnova Energy elects to make an Equity Cure Payment, Sunnova Energy shall notify the Issuer, the Indenture Trustee and the Transaction Manager of such election on or prior to the date that is not later than three Business Days prior to the related Determination Date. Upon timely payment and deposit of the Equity Cure Payment into the Collection Account, the Equity Cure Payment shall be added to the sum specified in clause (i)(A) of the definition of DSCR for purposes of calculating the DSCR as of the applicable Determination Date.
(c)Sunnova Energy shall not be permitted to make an Equity Cure Payment more frequently than one (1) time with respect to any three consecutive Collection Periods and more than three times prior to the Rated Final Maturity. For avoidance of doubt, Sunnova Energy shall not be permitted to make an Equity Cure Payment during an Early Amortization Period or a Sequential Interest Amortization Period.
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Section 5.08. Early Amortization Period Payments and Sequential Interest Amortization Period Payments. Any distributions of principal made during an Early Amortization Period or a Sequential Interest Amortization Period will be allocated in the following manner to determine any unpaid amounts on future Payment Dates: first, to the Scheduled Note Principal Payment amount calculated for such Class of Notes for such Payment Date; and second, to the Unscheduled Note Principal Payment amount calculated for such Class of Notes for such Payment Date. Any principal payments made in excess of the amounts allocated to the Scheduled Note Principal Payment and Unscheduled Note Principal Payment for such Payment Date will be considered an additional paydown of principal.
Section 5.09. Note Payments.
(a) The Indenture Trustee shall pay from amounts on deposit in the Collection Account in accordance with the Quarterly Transaction Report and the Priority of Payments to each Noteholder of record as of the related Record Date either (i) by wire transfer, in immediately available funds to the account of such Noteholder at a bank or other entity having appropriate facilities therefor, if such Noteholder shall have provided to the Indenture Trustee appropriate written instructions at least five Business Days prior to the related Payment Date (which instructions may remain in effect for subsequent Payment Dates unless revoked by such Noteholder), or (ii) if not, by check mailed to such Noteholder at the address of such Noteholder appearing in the Note Register, the amounts to be paid to such Noteholder pursuant to such Noteholder’s Notes; provided, however that so long as the Notes are registered in the name of the Securities Depository such payments shall be made to the nominee thereof in immediately available funds.
(b)In the event that any withholding Tax is imposed on the Issuer's payment (or allocations of income) to a Noteholder, such withholding Tax shall reduce the amount otherwise distributable to the Noteholder in accordance with this Indenture. The Indenture Trustee is hereby authorized and directed to retain from amounts otherwise distributable to the Noteholders sufficient funds for the payment of any withholding Tax that is legally owed by the Issuer as instructed by the Transaction Manager, in writing in a Quarterly Transaction Report (but such authorization shall not prevent the Indenture Trustee from contesting at the expense of the applicable Noteholder any such withholding Tax in appropriate Proceedings, and withholding payment of such withholding Tax, if permitted by law, pending the outcome of such Proceedings). The amount of any withholding Tax imposed with respect to a Noteholder shall be treated as cash distributed to such Noteholder at the time it is withheld by the Issuer or the Indenture Trustee (at the direction of the Transaction Manager or the Issuer) and remitted to the appropriate taxing authority. If there is a possibility that withholding Tax is payable with respect to a distribution (such as a distribution to a non-U.S. Noteholder), the Indenture Trustee may in its sole discretion withhold such amounts in accordance with this clause (b). In the event that a Noteholder wishes to apply for a refund of any such withholding Tax, the Indenture Trustee shall reasonably cooperate with such Noteholder in making such claim so long as such Noteholder agrees to reimburse the Indenture Trustee for any out-of-pocket expenses incurred.
(c)Each Noteholder and Note Owner, by its acceptance of its Note, will be deemed to have consented to the provisions of the Priority of Payments.
(d)For all Tax purposes, each Noteholder and each Note Owner, by its acceptance of a Note, will be deemed to have agreed to, and hereby instructs the Indenture Trustee to, treat the Notes as indebtedness.
(e)Each Noteholder and each Note Owner by its acceptance of a Note or an interest in a Note, will be deemed to have agreed to provide the Indenture Trustee or the Issuer, upon
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request, with the Noteholder Tax Identification Information and, to the extent FATCA Withholding Tax is applicable, the Noteholder FATCA Information. Each Noteholder and Note Owner shall update or replace its previously provided Noteholder Tax Identification Information and Noteholder FATCA Information promptly if requested by the Indenture Trustee; provided that nothing herein shall require the Indenture Trustee to make such request. In addition, each Noteholder and each Note Owner will be deemed to agree that the Indenture Trustee has the right to withhold from any amount of interest or other amounts (without any corresponding gross-up) payable to a Noteholder or Note Owner that fails to comply with the foregoing requirements. The Issuer hereby covenants with the Indenture Trustee that the Issuer will cooperate with the Indenture Trustee in obtaining sufficient information so as to enable the Indenture Trustee to (i) determine whether or not the Indenture Trustee is obliged to make any withholding, including FATCA Withholding Tax, in respect of any payments with respect to a Note and (ii) to effectuate any such withholding. The parties agree that the Indenture Trustee shall be released of any liability arising from properly complying with this Section 5.09 and FATCA. The Issuer agrees to provide to the Indenture Trustee copies of any Noteholder Tax Identification Information and any Noteholder FATCA Information received by the Issuer from any Noteholder or Note Owner. Upon reasonable request from the Indenture Trustee, the Issuer will provide such additional information that it may have to assist the Indenture Trustee in making any withholdings or informational reports.
Section 5.10. Statements to Noteholders; Tax Returns. Within the time period required by Applicable Law after the end of each calendar year, the Issuer shall cause the Indenture Trustee to furnish to each Person who at any time during such calendar year was a Noteholder of record and received any payment thereon any information required by the Code to enable such Noteholders to prepare their U.S. federal and state income Tax Returns. The obligation of the Indenture Trustee set forth in this paragraph shall be deemed to have been satisfied to the extent that information shall be provided by the Indenture Trustee, in the form of Form 1099 or other comparable form, pursuant to any requirements of the Code.
The Issuer shall cause the Transaction Manager, at the Transaction Manager’s expense, to cause a firm of Independent Accountants to prepare any Tax Returns required to be filed by the Issuer. The Indenture Trustee, upon reasonable written request, shall furnish the Issuer with all such information in the possession of the Indenture Trustee as may be reasonably required in connection with the preparation of any Tax Return of the Issuer.
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[***] = 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.
Section 5.11. Reports by Indenture Trustee. Within five Business Days after the end of each Collection Period, the Indenture Trustee shall provide or make available electronically (or upon written request, by first class mail or facsimile) to the Transaction Manager a written report (electronic means shall be sufficient) setting forth the amounts in the Collection Account, the Liquidity Reserve Account and the Supplemental Reserve Account, and the identity of the investments included therein, as applicable. Without limiting the generality of the foregoing, the Indenture Trustee shall, upon the written request of the Transaction Manager, promptly transmit or make available electronically to the Transaction Manager, copies of all accountings of, and information with respect to, the Collection Account, the Liquidity Reserve Account and the Supplemental Reserve Account, investments thereof, as applicable, and payments thereto and therefrom.
Section 5.12. Final Balances. On the Termination Date, all moneys remaining in all Accounts, shall be, subject to applicable escheatment laws, remitted to, or at the direction of, the Issuer and after the return of such funds (or disposition thereof pursuant to applicable escheatment laws), the Indenture Trustee will have no liability with respect to such funds, and Holders shall look solely only to the Issuer for such amounts.
ARTICLE VI
Voluntary Prepayment of Notes and Release of Collateral
Section 6.01. Voluntary Prepayment.
(a) Prior to the Rated Final Maturity, the Issuer may, in its sole discretion, prepay one or more Class(es) of Notes, including by portion of a Class (such prepayment, a "Voluntary Prepayment"), in whole or in part on any Business Day (such date, the "Voluntary Prepayment Date"). Any Voluntary Prepayment is required to be made on no less than fifteen (15) days' prior notice (or such shorter period, but not less than two Business Days, as is necessary to cure an Event of Default) by the Issuer sending the Notice of Prepayment to the Indenture Trustee and the Transaction Manager describing the Issuer's election to prepay the Notes or portion thereof in the form attached hereto as Exhibit C.
(b)With respect to any Voluntary Prepayment in part or Voluntary Prepayment of one Class of Notes in full, on or prior to the related Voluntary Prepayment Date, the Issuer shall be required to deposit into the Collection Account an amount equal to the sum of (i) the amount of outstanding principal of the Notes being prepaid, (ii) all accrued and unpaid interest thereon (including any Class B Deferred Interest, Post-ARD Additional Note Interest or Deferred Post-ARD Additional Note Interest), (iii) the related Make Whole Amount, if applicable and (iv) any other amounts owed under the Transaction Documents (the "Prepayment Amount"). Such partial Voluntary Prepayment will be distributed by the Indenture Trustee on the related Voluntary Prepayment Date in accordance with the written direction of the Transaction Manager (at the direction of the Issuer) to the holders of the Class(es) of Notes identified by the Issuer in the Notice of Prepayment.
(c) With respect to a Voluntary Prepayment of all outstanding Notes in full, on or prior to the related Voluntary Prepayment Date, the Issuer shall be required to deposit into the Collection Account an amount equal to (i) the sum of (A) the Aggregate Outstanding Note Balance, (B) all accrued and unpaid interest thereon (including any Class B Deferred Interest, Post-ARD Additional Note Interest or Deferred Post-ARD Additional Note Interest), (C) the related Make Whole Amounts, if any, and (D) all amounts owed to the Indenture Trustee, the Transaction Manager, the Transaction Transition Manager and any other parties to the Transaction Documents, minus (ii) the sum of the amounts then on deposit in the Liquidity
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Reserve Account and the Supplemental Reserve Account. In accordance with this Indenture, the Indenture Trustee will make distributions on the related Voluntary Prepayment Date in accordance with the Priority of Payments (without giving effect to clauses (vi) through (ix) thereof) and solely as specified in the related Voluntary Prepayment Transaction Manager Report and to the extent the Aggregate Outstanding Note Balance is prepaid and all other obligations of the Issuer under the Transaction Documents have been paid, release any remaining assets in the Trust Estate to, or at the direction of, the Issuer.
(d)If a Voluntary Prepayment Date occurs prior to the Make Whole Determination Date for a Class of Notes, the Issuer will be required to pay the Noteholders the applicable Make Whole Amount. No Make Whole Amount will be due to the Noteholders if a Voluntary Prepayment is made on or after the Make Whole Determination Date for the related Class of Notes.
(e)If the Issuer elects to rescind the Voluntary Prepayment, it must give written notice to the Indenture Trustee of such determination at least two Business Days prior to the Voluntary Prepayment Date. If a Voluntary Prepayment of the Notes has been rescinded pursuant to this Section 6.01(e), the Indenture Trustee shall provide notice of such rescission to the registered owner of each Note which had been subject to the rescinded redemption at the address shown on the Note Register maintained by the Note Registrar with copies to the Issuer, Sunnova Energy, the Depositor and the Rating Agency.
Section 6.02. Notice of Voluntary Prepayment.
(a)Any Notice of Voluntary Prepayment received by the Indenture Trustee from the Issuer shall be made available by the Indenture Trustee not less than fifteen (15) days and not more than thirty (30) days prior to the date fixed for prepayment to the registered owner of each Note to be prepaid with copies to the Issuer, Sunnova Energy, the Transaction Manager and the Rating Agency. Failure to make such Notice of Prepayment available to any Noteholder, or any defect therein, shall not affect the validity of any Proceedings for the prepayment of other Notes. If a Voluntary Prepayment has been rescinded pursuant to Section 6.01(e), and to the extent the Indenture Trustee had made notice of the Voluntary Prepayment available, the Indenture Trustee shall make available notice of such rescission to the registered owner of each Note which had been subject to the rescinded Voluntary Prepayment with copies to the Issuer, Sunnova Energy, the Transaction Manager and the Rating Agency.
(b)Any notice made available as provided in this Section 6.02 shall be conclusively presumed to have been duly given, whether or not the registered owner of such Notes receives the notice.
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[***] = 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.
Section 6.03. Cancellation of Notes. All Notes which have been paid in full or retired or received by the Indenture Trustee for exchange shall not be reissued but shall be canceled and destroyed in accordance with its customary procedures.
Section 6.04. Release of Collateral.
(a)The Indenture Trustee shall, on or promptly after the Termination Date, release any remaining portion of the Trust Estate and the pledged assets of the Managing Members and Non-Tax Equity Project Companies from the Lien created by this Indenture and the other Transaction Documents and shall deposit into the Collection Account any funds then on deposit in any other Account. The Indenture Trustee shall release property from the Lien created by this Indenture and the other Transaction Documents pursuant to this Section 6.04(a) only upon receipt by the Indenture Trustee of an Issuer Order accompanied by an Officer’s Certificate and an Opinion of Counsel described in Section 314(c)(2) of the Trust Indenture Act of 1939, as amended, and meeting the applicable requirements of Section 12.02.
(b)With respect to any Non-Tax Equity Project Company, upon (i) the deposit into the Collection Account of Insurance Proceeds or the payment in full of the Unscheduled Note Principal Payment related to a Terminated Host Customer Solar Asset, (ii) the deposit into the Collection Account of the Repurchase Price for a Defective Solar Asset, Defaulted Solar Asset or a Terminated Host Customer Solar Asset, (iii) the substitution of a Qualified Substitute Solar Asset and the deposit into the Collection Account of the Substitution Shortfall Amount, if any, for a Defective Solar Asset, a Defaulted Solar Asset or a Terminated Host Customer Solar Asset or (iv) the deposit into the Collection Account of the purchase price paid by a Host Customer with respect to a Host Customer Purchased Solar Asset and upon written direction and receipt of an Issuer order, an Opinion of Counsel and an Officer’s Certificate, as applicable, the Indenture Trustee shall release such Terminated Host Customer Solar Asset, Defaulted Solar Asset, Defective Solar Asset or Host Customer Purchased Solar Asset from the lien of this Indenture or any other Transaction Document, the Project Company Manager may release or may cause to be released any UCC Fixture Filing (or, in Guam, its jurisdictional equivalent) made against the PV System and, if applicable, Energy Storage System related to a Host Customer Purchased Solar Asset and the Issuer will cause the related Managing Member to direct such Non-Tax Equity Project Company to cause a distribution in-kind of such Terminated Host Customer Solar Asset, Defaulted Solar Asset or Defective Solar Asset to its Managing Member and from such Managing Member to the Issuer, who will then cause a distribution in-kind of such Terminated Host Customer Solar Asset, Defaulted Solar Asset or Defective Solar Asset to be made to the Depositor who will cause a distribution in-kind of such Terminated Host Customer Solar Asset, Defaulted Solar Asset or Defective Solar Asset to be made to Sunnova Sol IV Holdings.
(c)If any proceeds from Grid Services Net Revenue, Rebates or SREC Proceeds are distributed by the Issuer to the Depositor in a distribution permitted by the Transaction Documents, the Indenture Trustee’s Lien on such proceeds from Grid Services Net Revenue, Rebates or SREC Proceeds shall be released upon such distribution. In connection therewith, upon receipt of an Officer’s Certificate, the Indenture Trustee, at the request of the Issuer and at the sole expense of the Issuer, shall execute and deliver to the Issuer such documents as the Issuer shall reasonably request to evidence such release.
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[***] = 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.
ARTICLE VII
The Indenture Trustee
Section 7.01. Duties of Indenture Trustee.
(a) If a Responsible Officer of the Indenture Trustee has received notice pursuant to Section 7.02(a), or a Responsible Officer of the Indenture Trustee shall otherwise have actual knowledge that an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs.
(b)Except during the occurrence and continuance of such an Event of Default:
(i)The Indenture Trustee need perform only those duties that are specifically set forth in this Indenture and any other Transaction Document to which it is a party and no others and no implied covenants or obligations of the Indenture Trustee shall be read into this Indenture or any other Transaction Document.
(ii)In the absence of negligence or bad faith on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture or any other Transaction Document. The Indenture Trustee shall, however, examine such certificates and opinions to determine whether they conform on their face to the requirements of this Indenture or any other Transaction Document but the Indenture Trustee shall not be required to determine, confirm or recalculate information contained in such certificates or opinions.
(c) No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i)This paragraph does not limit the effect of subsection (b) of this Section 7.01.
(ii)The Indenture Trustee shall not be liable in its individual capacity for any action taken or error of judgment made in good faith by a Responsible Officer or other officers of the Indenture Trustee, unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts.
(iii)The Indenture Trustee shall not be personally liable with respect to any action it takes, suffers or omits to take in good faith in accordance with a direction received by it from the Noteholders in accordance with this Indenture or any other Transaction Document or for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture or any other Transaction Document, in each case unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts.
(iv)The Indenture Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or otherwise to perfect or to
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maintain the perfection of any Lien on the Trust Estate or in any item comprising the Conveyed Property.
(d) No provision of this Indenture or any other Transaction Document shall require the Indenture Trustee to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any of its duties hereunder or thereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it.
(e) The provisions of subsections (a), (b), (c) and (d) of this Section 7.01 shall apply to any co-trustee or separate trustee appointed by the Issuer and the Indenture Trustee pursuant to Section 7.13.
(f) The Indenture Trustee shall not in any way be held liable by reason of any insufficiency in any Account held by the Indenture Trustee resulting from any loss experienced on any item comprising the Conveyed Property except as a result of the Indenture Trustee's gross negligence or willful misconduct.
(g) In no event shall the Indenture Trustee be required to take any action that conflicts with Applicable Law, any of the provisions of this Indenture or any other Transaction Document or with the Indenture Trustee’s duties hereunder or that adversely affect its rights and immunities hereunder.
(h) In no event shall the Indenture Trustee have any obligations or duties under or have any liabilities whatsoever to Noteholders under ERISA.
(i) The Indenture Trustee shall not make any direct or indirect transfer of the Managing Member Membership Interests except in compliance with the Designated Transfer Restrictions and the Acknowledgement (as determined by the Majority Noteholders of the Controlling Class).
(j) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities; it being understood that the Indenture Trustee shall resume performance as soon as practicable under the circumstances.
(k) With respect to any part of the Trust Estate released from the Lien of this Indenture or other Transaction Document, the Indenture Trustee shall assign, without recourse, representation or warranty, to the appropriate Person as directed by the Issuer in writing, prior to the Termination Date, all the Indenture Trustee's right, title and interest in and to such assets, such assignment being in the form as prepared by the Servicer or the Issuer and acceptable to the Indenture Trustee. Such Person will thereupon own such portion of the Trust Estate and related rights appurtenant thereto free of any further obligation to the Indenture Trustee or the Noteholders with respect thereto. The Transaction Manager or the Issuer will also prepare and the Indenture Trustee shall, upon written direction of the Issuer, also execute and deliver all such other instruments or documents as shall be reasonably requested by any such Person to be required or appropriate to effect a valid transfer of title to such portion of the Trust Estate and the related assets.
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Section 7.02. Notice of Default, Transaction Manager Termination Event or Event of Default; Delivery of Manager Reports.
(a) The Indenture Trustee shall not be required to take notice of or be deemed to have notice or knowledge of any default, Default, Transaction Manager Termination Event, Event of Default event or information, or be required to act upon any default, Default, Transaction Manager Termination Event, Event of Default, event or information (including the sending of any notice) unless a Responsible Officer of the Indenture Trustee is specifically notified in writing at the address set forth in Section 12.04 or until a Responsible Officer of the Indenture Trustee shall have acquired actual knowledge of a default, a Default, a Transaction Manager Termination Event, an Event of Default, an event or information and shall have no duty to take any action to determine whether any such default, Default, Transaction Manager Termination Event, Event of Default, or event has occurred. In the absence of receipt of such notice or actual knowledge, the Indenture Trustee may conclusively assume that there is no such default, Default, Event of Default, Transaction Manager Termination Event or event. If written notice of the existence of a default, a Default, an Event of Default, a Transaction Manager Termination Event, an event or information has been delivered to a Responsible Officer of the Indenture Trustee or a Responsible Officer of the Indenture Trustee has actual knowledge thereof, the Indenture Trustee shall promptly provide paper or electronic notice thereof to the Issuer, the Transaction Transition Manager, the Rating Agency, each Tax Equity Investor Member, the Starlane SNDA Lessor, as applicable, pursuant to the terms of the related Acknowledgment or to the Starlane SNDA, as applicable, and each Noteholder, but in any event, no later than five days after such knowledge or notice occurs.
(b)In the event the Transaction Manager does not make available to the Rating Agency all reports of the Transaction Manager and all reports to the Noteholders, upon request of the Rating Agency, the Indenture Trustee shall make available promptly after such request, copies of such Transaction Manager reports as are in the Indenture Trustee’s possession to the Rating Agency and the Noteholders.
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[***] = 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.
Section 7.03. Rights of Indenture Trustee.
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Indenture Trustee need not investigate any fact or matter stated in any document. The Indenture Trustee need not investigate or re-calculate, evaluate, certify, verify or independently determine the accuracy of any numerical information, report, certificate, information, statement, representation or warranty or any fact or matter stated in any such document and may conclusively rely as to the truth of the statements and the accuracy of the information therein.
(b)Before the Indenture Trustee takes any action or refrains from taking any action under this Indenture or any other Transaction Document, it may require an Officer’s Certificate or an Opinion of Counsel, the costs of which (including the Indenture Trustee’s reasonable and documented attorney’s fees and expenses) shall be paid by the party requesting that the Indenture Trustee act or refrain from acting. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c)The Indenture Trustee shall not be personally liable for any action it takes or omits to take or any action or inaction it believes in good faith to be authorized or within its rights or powers other than as a result of gross negligence or willful misconduct.
(d)The Indenture Trustee shall not be bound to make any investigation into the facts of matters stated in any reports, certificates, payment instructions, opinion, notice, order or other paper or document unless requested in writing by 25% or more of the Noteholders, and such Noteholders have provided to the Indenture Trustee indemnity satisfactory to it.
(e)The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee or affiliates, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney, custodian, nominee or affiliate appointed by it hereunder with due care. The Indenture Trustee may consult with counsel, accountants and other experts and the advice or opinion of counsel, accountants and other experts with respect to legal and other matters relating to any Transaction Document shall be full and complete authorization and protection from liability with respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with such advice or opinion of counsel.
(f)The Indenture Trustee shall not be required to give any bond or surety with respect to the execution of this Indenture or the powers granted hereunder.
(g)The Indenture Trustee shall not be liable for any action or inaction of the Issuer, the Transaction Manager, the Transaction Transition Manager, the Custodian or any other party (or agent thereof) to this Indenture or any Transaction Document and may assume compliance by such parties with their obligations under this Indenture or any other Transaction Document, unless a Responsible Officer of the Indenture Trustee shall have received written notice to the contrary at the Corporate Trust Office of the Indenture Trustee.
(h)The Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to the Indenture Trustee
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security or indemnity satisfactory to the Indenture Trustee against the costs, expenses and liabilities (including the reasonable and documented fees and expenses of the Indenture Trustee’s counsel and agents) which may be incurred therein or thereby.
(i)The Indenture Trustee shall have no duty (i) to maintain or monitor any insurance or (ii) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate.
(j)Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such or otherwise publicly available information shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Transaction Manager’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates). The Indenture Trustee shall not have actual notice of any default or any other matter unless a Responsible Officer of the Indenture Trustee receives actual written notice of such default or other matter.
(k)The Indenture Trustee does not have any obligation to investigate any matter or exercise any powers vested under this Indenture unless requested in writing by 25% or more of the Noteholders, and such Noteholders have provided to the Indenture Trustee indemnity satisfactory to it.
(l)Knowledge of the Indenture Trustee shall not be attributed or imputed to Wilmington Trust's other roles in the transaction, and knowledge of the Transaction Transition Manager shall not be attributed or imputed to each other or to the Indenture Trustee (other than those where the roles are performed by the same group or division within Wilmington Trust or otherwise share the same Responsible Officers), or any affiliate, line of business, or other division of Wilmington Trust (and vice versa).
(m)The right of the Indenture Trustee to perform any permissive or discretionary act enumerated in this Indenture or any related document shall not be construed as a duty.
(n)None of the Indenture Trustee or the Transaction Transition Manager shall have a duty to conduct any investigation as to an actual or alleged breach of any representation or warranty, the occurrence of any condition requiring the repurchase of any Solar Asset by any Person pursuant to the Transaction Documents, or the eligibility of any Solar Asset for purposes of the Transaction Documents. For the avoidance of doubt, none of the Indenture Trustee or the Transaction Transition Manager shall be responsible for determining whether a breach of the representations or warranties made by Sunnova Intermediate Holdings, Sunnova Sol IV Holdings or the Depositor relating to the eligibility criteria of the Solar Assets has occurred or whether any such breach materially and adversely affects the value of such Solar Assets or the interests therein of the Noteholders; provided, however, that upon actual knowledge or receiving notice of a breach of any of the representations and warranties relating to the eligibility criteria of the Solar Assets by a Responsible Officer of the Indenture Trustee or the Transaction Transition Manager, the Indenture Trustee or the Transaction Transition Manager, as applicable, shall give prompt written notice thereof to Sunnova Intermediate Holdings, Sunnova Sol IV Holdings or the Depositor.
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(o)The rights, benefits, protections, immunities and indemnities afforded to the Indenture Trustee hereunder shall extend to the Indenture Trustee (in any of its capacities) under any other Transaction Document or related agreement as though set forth therein in their entirety mutatis mutandis.
(p)In no event shall the Indenture Trustee or the Transaction Transition Manager have any obligation to oversee or any liability or responsibility to monitor compliance with or enforce compliance with U.S. risk retention rules or other rules or regulations relating to risk retention. In no event shall that Indenture Trustee or the Transaction Transition Manager be charged with knowledge of such rules or regulations, nor shall it be liable to any investor or other party for violation of such rules or regulations now or hereafter in effect.
Section 7.04. Not Responsible for Recitals, Issuance of Notes or Application of Moneys as Directed. The recitals contained herein and in the Notes, except the certificates of authentication on the Notes, shall be taken as the statements of the Issuer, and the Indenture Trustee assumes no responsibility for their correctness. The Indenture Trustee makes no representations with respect to the Trust Estate or as to the validity or sufficiency of the Trust Estate or this Indenture or any other Transaction Document or of the Notes. The Indenture Trustee shall not be accountable for the use or application by the Issuer of the proceeds of the Notes. Subject to Section 7.01(b), the Indenture Trustee shall not be liable to any Person for any money paid to the Issuer upon an Issuer Order, Transaction Manager instruction or order or direction provided in a Quarterly Transaction Report contemplated by this Indenture or any other Transaction Document.
Section 7.05. May Hold Notes. The Indenture Trustee or any agent of the Issuer, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer or Sunnova Energy or any Affiliate of the Issuer or Sunnova Energy with the same rights it would have if it were not the Indenture Trustee or other agent.
Section 7.06. Money Held in Trust. The Indenture Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer and except to the extent of income or other gain on investments which are obligations of the Indenture Trustee hereunder.
Section 7.07. Compensation and Reimbursement.
(a) The Issuer agrees:
(i)to pay the Indenture Trustee, in accordance with and subject to the Priority of Payments, the Indenture Trustee Fee. The Indenture Trustee’s compensation shall not be limited by any law with respect to compensation of a trustee of an express trust and the payments to the Indenture Trustee provided by Article V hereto shall constitute payments due with respect to the applicable fee agreement or letter;
(ii)in accordance with and subject to the Priority of Payments, to reimburse the Indenture Trustee upon request for all reasonable and documented expenses, disbursements and advances incurred or made by the Indenture Trustee and the Transaction Transition Manager in accordance with any provision of this Indenture (including, but not limited to, the reasonable compensation, expenses and disbursements of its agents and counsel and allocable costs of in house counsel); provided, however, in no event shall the Issuer pay or reimburse the Indenture Trustee or the agents or counsel, including in house counsel of either, for any expenses, disbursements and advances incurred or made by the Indenture Trustee in connection with any negligent action or negligent inaction on the part of the Indenture Trustee; provided, further, that payments to
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the Indenture Trustee for reimbursement for any such expenses will be as set forth in Section 5.06(a)(i) hereof;
(iii)to indemnify the Indenture Trustee and its officers, directors, employees and agents for, and to hold them harmless against, any fee, loss, liability, damage, cost or expense (including reasonable and documented attorneys' fees, costs and expenses and court costs) incurred without negligence or bad faith on the part of the Indenture Trustee, to the extent such matters have been determined by a court of competent jurisdiction, arising out of, or in connection with, the acceptance or administration of this trust and its obligations under the Transaction Documents and the Sol Owner Project Company Control Agreement, including, without limitation, the costs and expenses of defending itself against any claim, action or suit in connection with the exercise or performance of any of its powers or duties hereunder and defending itself against any claim, action or suit (including a successful defense, in whole or in part, of a breach of its standard of care) or bringing any claim, action or suit to enforce the indemnification or other obligations of the relevant transaction parties; provided, however, that:
(A)with respect to any such claim the Indenture Trustee shall have given the Issuer, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor and the Transaction Manager written notice thereof promptly after the Indenture Trustee shall have actual knowledge thereof, provided, that failure to notify shall not relieve the parties of their obligations hereunder;
(B)notwithstanding anything to the contrary in this Section 7.07(a)(iii), none of the Issuer, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor or the Transaction Manager shall be liable for settlement of any such claim by the Indenture Trustee entered into without the prior consent of the Issuer, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor or the Transaction Manager, as the case may be, which consent shall not be unreasonably withheld or delayed; and
(C)the Indenture Trustee, its officers, directors, employees and agents, as a group, shall be entitled to counsel separate from the Issuer, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor and the Transaction Manager; to the extent the Issuer’s, Sunnova Intermediate Holdings’, Sunnova Sol IV Holdings', the Depositor’s and the Transaction Manager’s interests are not adverse to the interests of the Indenture Trustee, its officers, directors, employees or agents, the Indenture Trustee may agree to be represented by the same counsel as the Issuer, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor and the Transaction Manager.
Such payment obligations and indemnification shall survive the resignation or removal of the Indenture Trustee as well as the discharge, termination or assignment hereof. The Indenture Trustee’s expenses are intended as expenses of administration.
Anything in this Indenture to the contrary notwithstanding, in no event shall the Indenture Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
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(b) The Indenture Trustee shall, on each Payment Date, in accordance with the Priority of Payments, deduct payment of its fees, expenses and indemnities hereunder from moneys in the Collection Account.
(c) The Issuer agrees to assume and to pay, and to indemnify, defend and hold harmless the Indenture Trustee and the Noteholders from any Taxes which may at any time be asserted with respect to, and as of the date of, the Grant of the Trust Estate to the Indenture Trustee, including, without limitation, any sales, gross receipts, general corporation, personal property, privilege or license taxes (but with respect to the Noteholders only, not including any Taxes arising out of the creation or the issuance of the Notes or payments with respect thereto) and costs (including court costs), expenses and reasonable counsel fees and expenses in defending against the same.
Section 7.08. Eligibility; Disqualification. The Indenture Trustee shall always have a combined capital and surplus as stated in Section 7.09, and shall always be a bank or trust company with corporate trust powers organized under the laws of the United States or any State thereof which is a member of the Federal Reserve System and shall be rated at least investment grade by S&P.
Section 7.09. Indenture Trustee’s Capital and Surplus. The Indenture Trustee and/or its parent shall at all times have a combined capital and surplus of at least $100,000,000. If the Indenture Trustee publishes annual reports of condition of the type described in Section 310(a)(2) of the Trust Indenture Act of 1939, as amended, its combined capital and surplus for purposes of this Section 7.09 shall be as set forth in the latest such report.
Section 7.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee pursuant to this Section 7.10 shall become effective until the acceptance of appointment by the successor Indenture Trustee under Section 7.11.
(b)The Indenture Trustee may resign at any time by giving 30 days' prior written notice thereof to the Issuer and the Transaction Manager. If an instrument of acceptance by a successor Indenture Trustee shall not have been delivered to the Indenture Trustee within 30 days after the giving of such notice of resignation, the resigning Indenture Trustee may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.
(c)The Indenture Trustee may be removed at any time by the Super-Majority Noteholders of the Controlling Class upon 30 days’ prior written notice, delivered to the Indenture Trustee, with copies to the Transaction Manager and the Issuer.
(d) (i) If at any time the Indenture Trustee shall cease to be eligible under Section 7.08 or 7.09 or shall become incapable of acting or shall be adjudged bankrupt or insolvent, or a receiver of the Indenture Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, with 30 days’ prior written notice, the Issuer with the prior written consent of the Super-Majority Noteholders of the Controlling Class, by an Issuer Order, may remove the Indenture Trustee.
(ii) If the Indenture Trustee shall be removed pursuant to Sections 7.10(c) or (d) and no successor Indenture Trustee shall have been appointed pursuant to Section 7.10(e) and accepted such appointment within 30 days of the date of removal, the
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removed Indenture Trustee may petition any court of competent jurisdiction for appointment of a successor Indenture Trustee acceptable to the Issuer.
(e) If the Indenture Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Indenture Trustee for any cause, the Issuer, with the prior written consent of the Majority Noteholders of the Controlling Class, by an Issuer Order shall promptly appoint a successor Indenture Trustee.
(f) The Issuer shall give to the Rating Agency and the Noteholders notice of each resignation and each removal of the Indenture Trustee and each appointment of a successor Indenture Trustee. Each notice shall include the name of the successor Indenture Trustee and the address of its Corporate Trust Office.
(g) The provisions of this Section 7.10 shall apply to any co-trustee or separate trustee appointed by the Issuer and the Indenture Trustee pursuant to Section 7.13.
Section 7.11. Acceptance of Appointment by Successor.
(a) Every successor Indenture Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer and the retiring Indenture Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Indenture Trustee shall become effective and such successor Indenture Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Indenture Trustee. Notwithstanding the foregoing, on request of the Issuer or the successor Indenture Trustee, such retiring Indenture Trustee shall, upon payment of its fees, expenses and other charges, execute and deliver an instrument transferring to such successor Indenture Trustee all the rights, powers and trusts of the retiring Indenture Trustee and shall duly assign, transfer and deliver to such successor Indenture Trustee all property and money held by such retiring Indenture Trustee hereunder. Upon request of any such successor Indenture Trustee, the Issuer shall execute and deliver any and all instruments for more fully and certainly vesting in and confirming to such successor Indenture Trustee all such rights, powers and trusts.
(b)No successor Indenture Trustee shall accept its appointment unless at the time of such acceptance such successor Indenture Trustee shall be qualified and eligible under Sections 7.08 and 7.09.
(c)Notwithstanding the replacement of the Indenture Trustee, the obligations of the Issuer pursuant to Section 7.07(a)(iii) and (c) and the Indenture Trustee’s protections under this Article VII shall continue for the benefit of the retiring Indenture Trustee.
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Section 7.12. Merger, Conversion, Consolidation or Succession to Business of Indenture Trustee. Any corporation or national banking association into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any corporation, bank, trust company or national banking association resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any corporation, bank, trust company or national banking association succeeding to all or substantially all of the corporate trust business of the Indenture Trustee, shall be the successor of the Indenture Trustee hereunder if such corporation, bank, trust company or national banking association shall be otherwise qualified and eligible under Section 7.08 and 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto. The Indenture Trustee shall provide the Rating Agency written notice of any such transaction. In case any Notes have been authenticated, but not delivered, by the Indenture Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Indenture Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Indenture Trustee had authenticated such Notes.
Section 7.13. Co-trustees and Separate Indenture Trustees.
(a) At any time or times, for the purpose of meeting the legal requirements of any jurisdiction in which any part of the Trust Estate may at the time be located, for enforcement actions, and where a conflict of interest exists, the Indenture Trustee shall have power to appoint and, upon the written request of the Indenture Trustee, the Issuer shall for such purpose join with the Indenture Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint, one or more Persons that are approved by the Indenture Trustee either to act as co-trustee, jointly with the Indenture Trustee, of such part of the Trust Estate, or to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power of the Indenture Trustee deemed necessary or desirable, in all respects subject to the other provisions of this Section 7.13. If the Issuer does not join in such appointment within 15 days after the receipt by it of a request so to do, or in case an Event of Default has occurred and is continuing, the Indenture Trustee alone shall have power to make such appointment. No notice to the Noteholders of the appointment of any co-trustee or separate trustee shall be required under this Indenture. Notice of any such appointments shall be promptly given to the Rating Agency by the Indenture Trustee.
(b)Should any written instrument from the Issuer be required by any co-trustee or separate trustee so appointed for more fully confirming to such co-trustee or separate trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Issuer.
(c)Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms:
(i)The Notes shall be authenticated and delivered and all rights, powers, duties and obligations hereunder with respect to the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Indenture Trustee hereunder, shall be exercised solely by the Indenture Trustee.
(ii)The rights, powers, duties and obligations hereby conferred or imposed upon the Indenture Trustee with respect to any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such co-trustee or separate trustee jointly, except to the extent that under any law of
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any jurisdiction in which any particular act is to be performed, the Indenture Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed solely by such co-trustee or separate trustee.
(iii)The Indenture Trustee at any time, by an instrument in writing executed by it, may accept the resignation of, or remove, any co-trustee or separate trustee appointed under this Section 7.13. Upon the written request of the Indenture Trustee, the Issuer shall join with the Indenture Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section 7.13.
(iv)No co-trustee or separate trustee appointed in accordance with this Section 7.13 hereunder shall be financially or otherwise liable by reason of any act or omission of the Indenture Trustee, or any other such trustee hereunder, and the Indenture Trustee shall not be financially or otherwise liable by reason of any act or omission of any co-trustee or other such separate trustee hereunder.
(v)Any notice, request or other writing delivered to the Indenture Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee.
(vi)Any separate trustee or co-trustee may, at any time, constitute the Indenture Trustee, its agent or attorney-in-fact, with full power and authority, to the extent not prohibited by law, to do any lawful act under or with respect to this Indenture on its behalf and in its name. The Indenture Trustee shall not be responsible for any action or inaction of any such separate trustee or co-trustee appointed in accordance with this Section 7.13. The Indenture Trustee shall not have any responsibility or liability relating to the appointment of any separate or co-trustee. Any such separate or co-trustee shall not be deemed to be an agent of the Indenture Trustee. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estate, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
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Section 7.14. Books and Records. The Indenture Trustee agrees to provide to the Noteholders the right during normal business hours upon two days’ prior notice in writing to inspect its books and records insofar as the books and records relate to the functions and duties of the Indenture Trustee pursuant to this Indenture.
Section 7.15. Control. Upon the Indenture Trustee being adequately indemnified in writing to its satisfaction, the Majority Noteholders of the Controlling Class shall have the right to direct the Indenture Trustee with respect to any action or inaction by the Indenture Trustee hereunder, the exercise of any trust or power conferred on the Indenture Trustee, or the conduct of any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes or the Trust Estate provided that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture or expose the Indenture Trustee to financial or other liability (for which it has not been adequately indemnified) or be unduly prejudicial to the Noteholders not approving such direction including, but not limited to and without intending to narrow the scope of this limitation, direction to the Indenture Trustee to act or omit to act, directly or indirectly, to amend, hypothecate, subordinate, terminate or discharge any Lien benefiting the Noteholders in the Trust Estate;
(b) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee which is not inconsistent with such direction; and
(c) except as expressly provided otherwise herein (but only with the prior written consent of or at the direction of the Majority Noteholders of the Controlling Class), the Indenture Trustee shall have the authority to take any enforcement action which it reasonably deems to be necessary to enforce the provisions of this Indenture.
Section 7.16. Suits for Enforcement. If an Event of Default of which a Responsible Officer of the Indenture Trustee shall have actual knowledge, shall occur and be continuing, the Indenture Trustee may, in its discretion and shall, at the direction of the Majority Noteholders of the Controlling Class (provided that the Indenture Trustee is adequately indemnified in writing to its satisfaction), proceed to protect and enforce its rights and the rights of any Noteholders under this Indenture by a Proceeding, whether for the specific performance of any covenant or agreement contained in this Indenture or in aid of the execution of any power granted in this Indenture or for the enforcement of any other legal, equitable or other remedy as the Indenture Trustee, being advised by counsel, shall deem most effectual to protect and enforce any of the rights of the Indenture Trustee or any Noteholders, but in no event shall the Indenture Trustee be liable for any failure to act in the absence of direction the Majority Noteholders of the Controlling Class.
Section 7.17. Compliance with Applicable Anti-Terrorism and Anti-Money Laundering Regulations. In order to comply with Applicable Laws, including those relating to the funding of terrorist activities and money laundering, the Indenture Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with Indenture Trustee. Accordingly, each of the parties agrees to provide to Indenture Trustee upon its request from time to time such identifying information and documentation as may be available to such party in order to enable Indenture Trustee to comply with Applicable Law.
Section 7.18. Authorization. The Indenture Trustee is hereby authorized and directed to execute, deliver and perform its obligations under and make the representations contained in the Sol Owner Project Company Control Agreement on the Closing Date. Each Noteholder and each Note Owner, by its acceptance of a Note, acknowledges and agrees that the Indenture Trustee shall execute, deliver and perform its obligations under the Sol Owner Project Company Control Agreement and shall do so solely
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in its capacity as Indenture Trustee and not in its individual capacity. Furthermore, each Noteholder and each Note Owner, by its acceptance of a Note acknowledges and agrees that the Indenture Trustee shall have no obligation to take any action pursuant to the Sol Owner Project Company Control Agreement unless required to in accordance with this Indenture.
ARTICLE VIII
[Reserved]
ARTICLE IX
Event of Default
Section 9.01. Events of Default. The occurrence of any of the following events shall constitute an "Event of Default" hereunder:
(a) a default in the payment of any Note Interest (which, for the avoidance of doubt, does not include any Class B Deferred Interest, Post-ARD Additional Note Interest or Deferred Post-ARD Additional Note Interest) on a Payment Date, which default shall not have been cured after three Business Days;
(b) the failure to reduce the Aggregate Outstanding Note Balance to zero or pay in full the Class B Deferred Interest, Post-ARD Additional Note Interest and Deferred Post-ARD Additional Note Interest, in each case, at the Rated Final Maturity;
(c) an Insolvency Event shall have occurred with respect to the Issuer, all Project Companies or all Managing Members;
(d) the failure of the Issuer to observe or perform in any material respect any covenant or obligation of the Issuer set forth in this Indenture (other than the failure to make any required payment with respect to the Notes), which has not been cured within 30 days from the date of receipt by the Issuer of written notice from the Indenture Trustee (to the extent a Responsible Officer of the Indenture Trustee has received written notice or has actual knowledge thereof) of such breach or default, or the failure of the Issuer to deposit into the Collection Account all amounts required to be deposited therein by the required deposit date;
(e) any representation, warranty or statement of the Issuer (other than representations and warranties as to whether a Designated Solar Asset is an Eligible Solar Asset) contained in the Transaction Documents or any report, document or certificate delivered by the Issuer pursuant to the foregoing agreements shall prove to have been incorrect in any material respect as of the time when the same shall have been made and, within 30 days after written notice thereof shall have been given to the Indenture Trustee and the Issuer by the Transaction Manager, the Indenture Trustee (to the extent a Responsible Officer of the Indenture Trustee has received written notice or has actual knowledge thereof) or by the Majority Noteholders of the Controlling Class, the circumstances or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured (which cure may be effected by payment of an indemnity claim) or waived by the Indenture Trustee, acting at the direction of the Majority Noteholders of the Controlling Class;
(f) the failure for any reason of the Indenture Trustee, on behalf of the Noteholders, to have a first priority perfected security interest in the Trust Estate in favor of the Indenture
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Trustee (subject to Permitted Liens) which is not stayed, released or otherwise cured within ten days of receipt of notice or the Transaction Manager's or the Issuer's knowledge thereof;
(g) the Issuer, any Project Company or any Managing Member becomes subject to registration as an "investment company" under the 1940 Act;
(h) the Issuer, any Project Company or any Managing Member becomes classified as an association (or a publicly traded partnership taxable as a corporation) for U.S. federal income tax purposes;
(i) a failure by the Depositor to pay the Liquidated Damages Amount or Substitution Shortfall Amount for a Defective Solar Asset in accordance with the Contribution Agreement (except to the extent cured by the Performance Guarantor in accordance with the Performance Guaranty);
(j) any default in the payment of any Liquidated Damages Amount or Substitution Shortfall Amount for a Defective Solar Asset in accordance with the Contribution Agreement or due by the Performance Guarantor under the Performance Guaranty; or
(k) there shall remain in force, undischarged, unsatisfied, and unstayed for more than 30 consecutive days, any final non-appealable judgment in the amount of $100,000 or more against the Issuer not covered by insurance or bond.
Section 9.02. Actions of Indenture Trustee. If an Event of Default shall have occurred and be continuing hereunder, the Indenture Trustee shall, at the direction of the Super-Majority Noteholders of the Controlling Class, do one of the following:
(a) declare the entire unpaid principal amount of the Notes, all interest accrued and unpaid thereon and all other amounts payable under this Indenture and the other Transaction Documents to become immediately due and payable;
(b) either on its own or through an agent, take possession of and sell the Trust Estate pursuant to Section 9.15, provided, however, that neither the Indenture Trustee nor any collateral agent may sell or otherwise liquidate the Trust Estate unless either (i) the proceeds of such sale or liquidation are sufficient to discharge in full the amounts then due and unpaid upon the Notes for principal and accrued interest and the fees and all other amounts required to be paid pursuant to the Priority of Payments or (ii) the Holders of 100% of the Aggregate Outstanding Note Balance consent thereto;
(c) institute Proceedings for collection of amounts due on the Notes or under this Indenture by automatic acceleration or otherwise, or if no such acceleration or collection efforts have been made, or if such acceleration or collection efforts have been made, but have been annulled or rescinded, the Indenture Trustee may elect to take possession of the Trust Estate and collect or cause the collection of the proceeds thereof and apply such proceeds in accordance with the applicable provisions of this Indenture;
(d) enforce any judgment obtained and collect any amounts adjudged from the Issuer;
(e) institute any Proceedings for the complete or partial foreclosure of the Lien created by the Indenture with respect to the Trust Estate; and
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(f) protect the rights of the Indenture Trustee and the Noteholders by taking any appropriate action including exercising any remedy of a secured party under the UCC or any other Applicable Law.
Notwithstanding the foregoing, upon the occurrence of an Event of Default of the type described in clause (c) of the definition thereof, the Aggregate Outstanding Note Balance, all interest accrued and unpaid thereon and all other amounts payable under this Indenture and the other Transaction Documents shall automatically become immediately due and payable.
Section 9.03. Indenture Trustee May File Proofs of Claim. In case of the pendency of any Insolvency Proceeding relative to the Issuer or any other obligor upon the Notes or the property of the Issuer or of such other obligor or their creditors, the Indenture Trustee (irrespective of whether the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand on the Issuer for the payment of overdue principal or any interest or other amounts) shall, at the written direction of the Majority Noteholders of the Controlling Class, by intervention in such Insolvency Proceeding or otherwise:
(a) file and prove a claim for the whole amount owing and unpaid with respect to the Notes issued hereunder and file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee, its agents and counsel) and of the Noteholders allowed in such Insolvency Proceeding; and
(b) collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator, or sequestrator (or other similar official) in any such Insolvency Proceeding is hereby authorized by each Noteholder to make such payments to the Indenture Trustee and, in the event that the Indenture Trustee shall, upon written direction from the Noteholders, consent to the making of such payments directly to the Noteholders, to pay to the Indenture Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee, its agents and counsel, and any other amounts due the Indenture Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize and consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment, or composition affecting any of the Notes or the rights of any Noteholder thereof, or to authorize the Indenture Trustee to vote with respect to the claim of any Noteholder in any such Insolvency Proceeding.
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Section 9.04. Indenture Trustee May Enforce Claim Without Possession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any Proceeding relating thereto, and any such Proceeding instituted by the Indenture Trustee shall be brought in its own name as trustee for the benefit of the Noteholders, and any recovery of judgment shall be applied first, to the payment of the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee, its agents and counsel and any other amounts due the Indenture Trustee under Section 7.07 (provided that, any indemnification by the Issuer under Section 7.07 shall be paid only in the priority set forth in the Priority of Payments) and second, for the ratable benefit of the Noteholders for all amounts due to such Noteholders.
Section 9.05. Knowledge of Indenture Trustee. Any references herein to the knowledge of the Indenture Trustee shall mean and refer to actual knowledge of a Responsible Officer of the Indenture Trustee.
Section 9.06. Limitation on Suits. No Holder of any Note shall have any right to institute any Proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder unless:
(a) such Holder has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(b) the Majority Noteholders of the Controlling Class shall have made written request to the Indenture Trustee to institute Proceedings with respect to such Event of Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for 30 days after its receipt of such notice, request and offer of security or indemnity has failed to institute any such Proceedings; and
(e) no direction inconsistent with such written request has been given to the Indenture Trustee during such 30-day period by the Majority Noteholders of the Controlling Class;
it being understood and intended that no one or more Holders of Notes shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Notes, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided.
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Section 9.07. Unconditional Right of Noteholders to Receive Principal and Interest. The Holders of the Notes shall have the right, which is absolute and unconditional, subject to the express terms of this Indenture, to receive payment of principal and interest on such Notes, subject to the respective relative priorities provided for in this Indenture, as such principal and interest becomes due and payable from the Trust Estate and, subject to Section 9.06 to institute Proceedings for the enforcement of any such payment, and such right shall not be impaired except as expressly permitted herein without the consent of such Holders.
Section 9.08. Restoration of Rights and Remedies. If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Indenture Trustee or to such Noteholder, then, and in every case, the Issuer, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
Section 9.09. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.09, no right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 9.10. Delay or Omission; Not Waiver. No delay or omission of the Indenture Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article IX or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
Section 9.11. Control by Noteholders. Other than as set forth herein, the Majority Noteholders of the Controlling Class shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee or exercising any trust or power conferred on the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture including, without limitation, any provision hereof which expressly provides for approval by a greater percentage of the aggregate principal amount of all Outstanding Notes;
(b) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee which is not inconsistent with such direction; provided, however, that, subject to Section 7.01, the Indenture Trustee need not take any action which a Responsible Officer or Officers of the Indenture Trustee in good faith determines might involve it in liability (unless the Indenture Trustee is furnished with the reasonable indemnity referred to in Section 9.11(c)); and
(c) the Indenture Trustee has been furnished reasonable indemnity against costs, expenses and liabilities which it might incur in connection therewith.
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Section 9.12. Waiver of Certain Events by Less Than All Noteholders. The Super-Majority Noteholders of the Controlling Class may, on behalf of the Holders of all the Notes, waive any past Default, Event of Default or Transaction Manager Termination Event, and its consequences, except:
(a) a Default in the payment of the principal of or interest on any Note, or a Default caused by the Issuer becoming subject to registration as an "investment company" under the 1940 Act, or
(b) with respect to a covenant or provision hereof which under Article X cannot be modified or amended without the consent of the Holder of each Outstanding Note affected.
Upon any such waiver, such Default, Event of Default or Transaction Manager Termination Event shall cease to exist, and any Default, Event of Default or Transaction Manager Termination Event or other consequence arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default, Event of Default or Transaction Manager Termination Event or impair any right consequent thereon.
Section 9.13. Undertaking for Costs. All parties to this Indenture agree, and each Noteholder and each Note Owner by its acceptance of a Note, shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 9.13 shall not apply to any suit instituted by the Indenture Trustee or to any suit instituted by any Noteholder for the enforcement of the payment of the principal of or interest on any Note on or after the Rated Final Maturity expressed in such Note.
Section 9.14. Waiver of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not, at any time, insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 9.15. Sale of Trust Estate.
(a) The power to effect any sale of any portion of the Trust Estate pursuant to this Article IX shall not be exhausted by any one or more sales as to any portion of the Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate securing the Notes shall have been sold or all amounts payable on the Notes and under this Indenture with respect thereto shall have been paid. The Indenture Trustee, acting on its own or through an agent, may from time to time postpone any sale by public announcement made at the time and place of such sale.
(b)The Indenture Trustee shall not, in any private sale, sell to a third party the Trust Estate, or any portion thereof unless the Super-Majority Noteholders of the Controlling Class direct the Indenture Trustee, in writing, to make such sale or unless either (i) the proceeds of such sale or liquidation are sufficient to discharge in full the amounts then due and unpaid upon
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the Notes for principal and accrued interest and the fees and all other amounts required to be paid pursuant the Priority of Payments or (ii) the Holders of 100% of the principal amount of each Class of Notes then Outstanding consent thereto. Notwithstanding the foregoing, prior to the consummation of any sale of the Trust Estate (either private or public), the Indenture Trustee shall first offer the Originator the opportunity to purchase the Trust Estate for a purchase price equal to the greater of (x) the fair market value of the Trust Estate and (y) the aggregate outstanding note balance of the Notes, plus accrued interest thereon and fees owed thereto (such right, the "Right of First Refusal"). If the Originator does not exercise its Right of First Refusal within two Business Days of receipt thereof, then the Indenture Trustee shall sell the Trust Estate as otherwise set forth in this Section 9.15; provided, further, that if the Originator does not exercise its Right of First Refusal and the Indenture Trustee elects to sell the Trust Estate in a private sale to a third party, then prior to the sale thereof, the Indenture Trustee shall offer the Originator the opportunity to purchase the Trust Estate for the purchase price being offered by such third party, and the Originator shall have two Business Days to accept such offer.
(c)The Indenture Trustee or any Noteholder may bid for and acquire any portion of the Trust Estate in connection with a public or private sale thereof, and in lieu of paying cash therefor, any Noteholder may make settlement for the purchase price by crediting against amounts owing on the Notes of such Holder or other amounts owing to such Holder secured by this Indenture, that portion of the net proceeds of such sale to which such Holder would be entitled, after deducting the reasonable costs, charges and expenses incurred by the Indenture Trustee or the Noteholders in connection with such sale. The Notes need not be produced in order to complete any such sale, or in order for the net proceeds of such sale to be credited against the Notes. The Indenture Trustee or the Noteholders may hold, lease, operate, manage or otherwise deal with any property so acquired in any manner permitted by law.
(d)The Indenture Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Trust Estate in connection with a sale thereof. In addition, the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey its interest in any portion of the Trust Estate in connection with a sale thereof, pursuant to this Section 9.15, and to take all action necessary to effect such sale. No purchaser or transferee at such a sale shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies.
(e)The method, manner, time, place and terms of any sale of all or any portion of the Trust Estate shall be commercially reasonable.
(f)This Section 9.15 is subject to Section 7.01(i).
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Section 9.16. Action on Notes. The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the Lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Trust Estate or upon any of the assets of the Issuer.
ARTICLE X
Supplemental Indentures
Section 10.01. Supplemental Indentures Without Noteholder Approval.
(a) Without the consent of the Noteholders, provided that (w) the Issuer shall have provided written notice to the Rating Agency of such modification, (x) the Indenture Trustee shall have received an Opinion of Counsel that such modification is permitted under the terms of this Indenture and that all conditions precedent to the execution of such modification have been satisfied and (y) the Indenture Trustee shall have received a Tax Opinion, the Issuer and the Indenture Trustee, when authorized and directed by an Issuer Order, at any time and from time to time, may enter into one or more amendments or indentures supplemental hereto, in form satisfactory to the Indenture Trustee, for any of the following purposes:
(i)to correct, amplify or add to the description of any property at any time subject to the Lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the Lien of this Indenture, or to subject to the Lien of this Indenture additional property; provided that such action pursuant to this clause (i) shall not adversely affect the interests of the Noteholders in any respect;
(ii)to evidence the succession of another Person to either the Issuer or the Indenture Trustee in accordance with the terms of this Indenture, and the assumption by any such successor of the covenants of the Issuer or the Indenture Trustee contained herein and in the Notes;
(iii) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or to conform the provisions herein to the descriptions set forth in the Offering Circular;
(iv) to add to the covenants of the Issuer or the Indenture Trustee, for the benefit of the Noteholders or to surrender any right or power herein conferred upon the Issuer; or
(v)to effect any matter specified in Section 10.06.
(b) Promptly after the execution by the Issuer and the Indenture Trustee of any amendment or supplemental indenture pursuant to this Section 10.01, the Indenture Trustee shall make available to the Noteholders and the Rating Agency a copy of such supplemental indenture. Any failure of the Indenture Trustee to make available such copy shall not, however, in any way impair or affect the validity of any such amendment or supplemental indenture.
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Section 10.02. Supplemental Indentures with Consent of Noteholders.
(a) With the prior written consent of each Noteholder affected thereby, prior written notice to the Rating Agency and receipt by the Indenture Trustee of a Tax Opinion, the Issuer and the Indenture Trustee, when authorized and directed by an Issuer Order, at any time and from time to time, may enter into an amendment or a supplemental indenture for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Noteholders under this Indenture for the following purposes:
(i)to change the Rated Final Maturity of any Note, or the due date of any payment of interest on any Note, or reduce the principal amount thereof, or the interest rate thereon, change the place of payment where, or the coin or currency in which any Note or any interest thereon is payable, or impair the right to institute suit for the enforcement of the payment of interest due on any Note on or after the due date thereof or for the enforcement of the payment of the entire remaining unpaid principal amount of any Note on or after the Rated Final Maturity thereof or change any provision of Article VI regarding the amounts payable upon any Voluntary Prepayment of the Notes;
(ii)to reduce the percentage of the Outstanding Note Balance of any Class of Notes, the consent of the Noteholders of which is required to approve any such supplemental indenture; or the consent of the Noteholders of which is required for any waiver of compliance with provisions of this Indenture, Events of Default or Transaction Manager Termination Events under this Indenture or under the Transaction Management Agreement and their consequences provided for in this Indenture or for any other purpose hereunder;
(iii)to modify any of the provisions of this Section 10.02;
(iv)to modify or alter the provisions of the proviso to the definition of the term "Outstanding"; or
(v)to permit the creation of any other Lien with respect to any part of the Trust Estate or terminate the Lien of this Indenture on any property at any time subject hereto or, except with respect to any action which would not have a material adverse effect on any Noteholder (as certified by the Issuer), deprive the Noteholder of the security afforded by the Lien of this Indenture.
(b) With the prior written consent of the Majority Noteholders of the Controlling Class, and receipt by the Indenture Trustee of a Tax Opinion, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more amendments or indentures supplemental hereto, in form and substance satisfactory to the Indenture Trustee (acting at the direction of the Majority Noteholders of the Controlling Class) for the purpose of modifying, eliminating or adding to the provisions of this Indenture; provided, that such supplemental indentures shall not have any of the effects described in paragraphs (i) through (v) of Section 10.02(a).
(c) Promptly after the execution by the Issuer and the Indenture Trustee of any amendment or supplemental indenture pursuant to this Section 10.02, the Indenture Trustee shall make available to the Noteholders and the Rating Agency a copy of such supplemental indenture. Any failure of the Indenture Trustee to make available such copy shall not, however, in any way impair or affect the validity of any such supplemental indenture.
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(d) Whenever the Issuer or the Indenture Trustee solicits a consent to any amendment or supplement to this Indenture, the Issuer shall fix a record date in advance of the solicitation of such consent for the purpose of determining the Noteholders entitled to consent to such amendment or supplement. Only those Noteholders at such record date shall be entitled to consent to such amendment or supplement whether or not such Noteholders continue to be Holders after such record date.
Section 10.03. Execution of Amendments and Supplemental Indentures. In executing, or accepting the additional trusts created by, any amendment or supplemental indenture permitted by this Article X or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel (i) describing that the execution of such supplemental indenture is authorized or permitted by this Indenture and (ii) in accordance with Section 3.06(a) hereof. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Indenture Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 10.04. Effect of Amendments and Supplemental Indentures. Upon the execution of any amendment or supplemental indenture under this Article X, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes which have theretofore been or thereafter are authenticated and delivered hereunder shall be bound thereby.
Section 10.05. Reference in Notes to Amendments and Supplemental Indentures. Notes authenticated and delivered after the execution of any amendment or supplemental indenture pursuant to this Article X may, and if required by the Issuer shall, bear a notation as to any matter provided for in such supplemental indenture. If the Issuer shall so determine, new Notes so modified as to conform to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
Section 10.06. Indenture Trustee to Act on Instructions. Notwithstanding any provision herein to the contrary (other than Section 10.02), in the event the Indenture Trustee is uncertain as to the intention or application of any provision of this Indenture or any other agreement to which it is a party, or such intention or application is ambiguous as to its purpose or application, or is, or appears to be, in conflict with any other applicable provision thereof, or if this Indenture or any other agreement to which it is a party permits or does not prohibit any determination by the Indenture Trustee, or is silent or incomplete as to the course of action which the Indenture Trustee is required or is permitted or may be permitted to take with respect to a particular set of facts or circumstances, the Indenture Trustee shall, at the expense of the Issuer, be entitled to request and rely upon the following: (a) written instructions of the Issuer directing the Indenture Trustee to take certain actions or refrain from taking certain actions, which written instructions shall contain a certification that the taking of such actions or refraining from taking certain actions is in the best interest of the Noteholders and (b) prior written consent of the Majority Noteholders of the Controlling Class. In such case, the Indenture Trustee shall have no liability to the Issuer or the Noteholders for, and the Issuer shall hold harmless the Indenture Trustee from, any liability, costs or expenses arising from or relating to any action taken by the Indenture Trustee acting upon such instructions, and the Indenture Trustee shall have no responsibility to the Noteholders with respect to any such liability, costs or expenses. The Issuer shall provide a copy of such written instructions to the Rating Agency.
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ARTICLE XI
[Reserved]
ARTICLE XII
Miscellaneous
Section 12.01. Compliance Certificates and Opinions; Furnishing of Information. Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture (except with respect to ordinary course actions under this Indenture and except as otherwise specifically provided in this Indenture), the Issuer, at the request of the Indenture Trustee, shall furnish to the Indenture Trustee a certificate describing that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel describing that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of certificates and Opinions of Counsel are specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or Opinion of Counsel need be furnished.
Section 12.02. Form of Documents Delivered to Indenture Trustee.
(a) If several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(b)Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by outside counsel, unless such Authorized Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion or any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Authorized Officer of any relevant Person, describing that the information with respect to such factual matters is in the possession of such Person, unless such officer or counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Any Opinion of Counsel may be based on the written opinion of other counsel, in which event such Opinion of Counsel shall be accompanied by a copy of such other counsel’s opinion and shall include a statement to the effect that such counsel believes that such counsel and the Indenture Trustee may reasonably rely upon the opinion of such other counsel.
(c)Where any Person is required to make, give or execute two or more applications, requests, consents, notices, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
(d)Wherever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer or the Transaction Manager shall deliver any document as a condition of the granting of such application, or as evidence of the
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Issuer’s or the Transaction Manager’s compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such notice or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such notice or report. The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Section 7.01(b)(ii).
(e)Wherever in this Indenture it is provided that the absence of the occurrence and continuation of a Default, an Event of Default or a Transaction Manager Termination Event is a condition precedent to the taking of any action by the Indenture Trustee at the request or direction of the Issuer, then notwithstanding that the satisfaction of such condition is a condition precedent to the Issuer’s or the Indenture Trustee’s right to make such request or direction, the Indenture Trustee shall be protected in acting in accordance with such request or direction if a Responsible Officer of the Indenture Trustee does not have actual knowledge of the occurrence and continuation of such Default, Event of Default or Transaction Manager Termination Event.
Section 12.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 12.03.
(b)The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Whenever such execution is by an officer of a corporation or a member of a limited liability company or a partnership on behalf of such corporation, limited liability company or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c)The ownership of Notes shall be proved by the Note Register.
(d)Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Notes shall bind the Holder of every Note issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof, with respect to anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Notes.
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Section 12.04. Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver or act of Noteholders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be in writing and shall be delivered personally, mailed by first-class registered or certified mail, postage prepaid, by facsimile transmission or electronic transmission in PDF format or overnight delivery service, postage prepaid, and received by, a Responsible Officer of the Indenture Trustee at its Corporate Trust Office listed below; or
(b) any other Person shall be in writing and shall be delivered personally or by facsimile transmission, electronic transmission in PDF format or prepaid overnight delivery service at the address listed below or at any other address subsequently furnished in writing to the Indenture Trustee by the applicable Person.
| | | | | |
| To the Indenture Trustee: | Wilmington Trust, National Association Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 Attention: Corporate Trust Administration Phone: (302) 636-6704 Fax: (302) 636-4140 |
| |
| To the Issuer: | Sunnova Sol IV Issuer, LLC 20 East Greenway Plaza, Suite 540 Houston, Texas 77046 Attention: Chief Financial Officer Email: robert.lane@sunnova.com and notices@sunnova.com Phone: (281) 417-0916 Fax: (281) 985-9907 |
| |
| with a copy to: | Sunnova Energy Corporation 20 East Greenway Plaza, Suite 540 Houston, Texas 77046 Attention: Chief Financial Officer Email: robert.lane@sunnova.com and notices@sunnova.com Phone: (281) 417-0916 Fax: (281) 985-9907 |
| |
| To KBRA: | Kroll Bond Rating Agency, LLC
805 Third Avenue, 29th Floor
New York, NY 10022 Attention: ABS Surveillance
Email: abssurveillance@kbra.com
|
| |
Notices delivered to the Rating Agency shall be by electronic delivery to the email address set forth above where information is available in electronic format. In addition, upon the written request of any beneficial owner of a Note, the Indenture Trustee shall provide to such beneficial owner copies of such notices, reports or other information delivered, in one or more of
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the means requested, by the Indenture Trustee hereunder to other Persons as such beneficial owner may reasonably request.
Section 12.05. Notices and Reports to Noteholders; Waiver of Notices.
(a) Where this Indenture provides for notice to Noteholders of any event or the mailing of any report to the Noteholders, such notice or report shall be written and shall be sufficiently given (unless otherwise herein expressly provided) if mailed, first-class, postage-prepaid, to each Noteholder affected by such event or to whom such report is required to be mailed or sent via electronic mail, at the address or electronic mail address of such Noteholder as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or the mailing of such report. In any case where a notice or report to Noteholders is mailed in the manner provided above, neither the failure to mail such notice or report, nor any defect in any notice or report so mailed, to any particular Noteholder shall affect the sufficiency of such notice or report with respect to other Noteholders, and any notice or report which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided.
(b)Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(c)If, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to the Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.
(d)The Indenture Trustee shall, on or before each Payment Date, make available to each Noteholder each Quarterly Transaction Report and, unless directed to do so under any other provision of this Indenture or any other Transaction Document (in which case no request shall be necessary), a copy of all reports, financial statements and notices received by the Indenture Trustee pursuant to this Indenture and the other Transaction Documents, but only with the use of a password provided by the Indenture Trustee; provided, however, the Indenture Trustee shall have no obligation to provide such information described in this Section 12.05 until it has received the requisite information from the Issuer or the Transaction Manager. The Indenture Trustee will make no representation or warranties as to the accuracy or completeness of such documents and will assume no responsibility therefor. The Indenture Trustee’s internet website will initially be located at www.wilmingtontrustconnect.com or at such other address as the Indenture Trustee shall notify the parties to the Indenture from time to time. In connection with providing access to the Indenture Trustee’s website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee shall not be liable for the dissemination of information in accordance with this Indenture.
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Section 12.06. Rules by Indenture Trustee. The Indenture Trustee may make reasonable rules for any meeting of Noteholders.
Section 12.07. Issuer Obligation. Each of the Indenture Trustee and each Noteholder accepts that the enforcement against the Issuer under this Indenture and under the Notes shall be limited to the assets of the Issuer, whether tangible or intangible, real or person (including the Trust Estate) and the proceeds thereof. No recourse may be taken, directly or indirectly, against (a) any member, manager, officer, employee, trustee, agent or director of the Issuer or of any predecessor of the Issuer, (b) any member, manager, beneficiary, officer, employee, trustee, agent, director or successor or assign of a holder of a member or limited liability company interest in the Issuer, or (c) any incorporator, subscriber to capital stock, stockholder, officer, director, employee or agent of the Indenture Trustee or any predecessor or successor thereof, with respect to the Issuer’s obligations with respect to the Notes or any of the statements, representations, covenants, warranties or obligations of the Issuer under this Indenture or any Note or other writing delivered in connection herewith or therewith.
Section 12.08. Enforcement of Benefits. The Indenture Trustee for the benefit of the Noteholders shall be entitled to enforce and, at the written direction (electronic means shall be sufficient) of and with indemnity by the requisite Noteholders pursuant to the applicable Transaction Document, the Indenture Trustee shall enforce the covenants and agreements of the Transaction Manager contained in the Transaction Management Agreement, the Transaction Transition Manager contained in the Manager Transition Agreement, the Custodian contained in the Custodial Agreement, the Depositor and Sunnova Sol III Holdings contained in the Contribution Agreement, the Performance Guarantor contained in the Performance Guaranty and each other Sunnova Entity contained in the Transaction Documents.
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[***] = 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.
Section 12.09. Effect of Headings and Table of Contents. The Section and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 12.10. Successors and Assigns. All covenants and agreements in this Indenture by the Issuer and the Indenture Trustee shall bind their respective successors and assigns, whether so expressed or not.
Section 12.11. Separability; Entire Agreement. If any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Indenture, a provision as similar in its terms and purpose to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. This Indenture reflects the entire agreement with respect to the matters covered by this Indenture and supersedes any prior agreements, commitments, drafts, communication, discussions and understandings, oral or written, with respect thereto.
Section 12.12. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any separate trustee or co-trustee appointed under Section 7.13 and the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 12.13. Legal Holidays. If the date of any Payment Date or any other date on which principal of or interest on any Note is proposed to be paid or any date on which mailing of notices by the Indenture Trustee to any Person is required pursuant to any provision of this Indenture, shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment or mailing of such notice need not be made on such date, but may be made or mailed on the next succeeding Business Day with the same force and effect as if made or mailed on the nominal date of any such Payment Date or other date for the payment of principal of or interest on any Note, or as if mailed on the nominal date of such mailing, as the case may be, and in the case of payments, no interest shall accrue for the period from and after any such nominal date, provided such payment is made in full on such next succeeding Business Day.
Section 12.14. Governing Law; Jurisdiction; Waiver of Jury Trial. (a) This Indenture and each Note shall be construed in accordance with and governed by the substantive laws of the State of New York (including New York General Obligations Laws §§ 5-1401 and 5-1402, but otherwise without regard to conflicts of law provisions thereof, except with regard to the UCC) applicable to agreements made and to be performed therein.
(b) The parties hereto agree to the non-exclusive jurisdiction of the Commercial Division, New York State Supreme Court, and federal courts in the borough of Manhattan in the City of New York in the State of New York.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO AND EACH NOTEHOLDER BY ACCEPTANCE OF A NOTE IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION PROCEEDING OR COUNTERCLAIM BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS INDENTURE, ANY OTHER DOCUMENT IN CONNECTION HEREWITH OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
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[***] = 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.
Section 12.15. Electronic Signatures and Counterparts. This Indenture shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC, in each case to the extent applicable. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any electronic signature or faxed, scanned, or photocopied manual signature of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. Notwithstanding the foregoing, with respect to any notice provided for in this Indenture or any instrument required or permitted to be delivered hereunder, any party hereto receiving or relying upon such notice or instrument shall be entitled to request execution thereof by original manual signature as a condition to the effectiveness thereof.
Section 12.16. Recording of Indenture. If this Indenture is subject to recording in any appropriate public recording offices, the Issuer shall effect such recording at its expense in compliance with an Opinion of Counsel to the effect that such recording is necessary either for the protection of the Noteholders or any other person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture or any other Transaction Document.
Section 12.17. Further Assurances. The Issuer agrees to do and perform, from time to time, any and all acts and to execute any and all further instruments required or reasonably requested by the Indenture Trustee to effect more fully the purposes of this Indenture, including, without limitation, the execution of any financing statements or continuation statements relating to the Trust Estate for filing under the provisions of the UCC of any applicable jurisdiction.
Section 12.18. No Bankruptcy Petition Against the Issuer. The Indenture Trustee agrees (and each Noteholder and each Note Owner by its acceptance of a Note shall be deemed to agree) that, prior to the date that is one year and one day after the payment in full of all amounts payable with respect to the Notes, it will not institute against the Issuer, or join any other Person in instituting against the Issuer, any Insolvency Proceeding or other Proceedings under the laws of the United States or any State of the United States. This Section 12.18 shall survive the termination of this Indenture.
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[***] = 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.
Section 12.19. Rule 15Ga-1 Compliance.
(a) To the extent a Responsible Officer of the Indenture Trustee receives a demand for the repurchase of a Solar Asset owned by a Non-Tax Equity Project Company based on a breach of a representation or warranty made by the Depositor of such Solar Asset (each, a "Demand"), the Indenture Trustee agrees (i) if such Demand is in writing, promptly to forward such Demand to the Depositor, the Transaction Manager and the Issuer, and (ii) if such Demand is oral, to instruct the requesting party to submit such Demand in writing to the Indenture Trustee and the Issuer.
(b) In connection with the repurchase of a Solar Asset owned by a Non-Tax Equity Project Company pursuant to a Demand, any dispute with respect to a Demand, or the withdrawal or final rejection of a Demand by the Depositor of such Solar Asset, the Indenture Trustee agrees, to the extent a Responsible Officer of the Indenture Trustee has actual knowledge thereof, promptly to notify the Issuer, the Manager and the Depositor, in writing.
(c) The Indenture Trustee will (i) notify the Issuer, the Transaction Manager and the Depositor as soon as practicable and in any event within three Business Days of the receipt thereof and in the manner set forth in Exhibit D hereof, of all Demands and provide to the Issuer any other information reasonably requested to facilitate compliance by it with Rule 15Ga-1 under the Exchange Act ("Rule 15Ga-1 Information"), and (ii) if requested in writing by the Issuer or the Depositor, provide a written certification no later than ten days following any calendar quarter or calendar year that the Indenture Trustee has not received any Demands for such period, or if Demands have been received during such period, that the Indenture Trustee has provided all the information reasonably requested under clause (i) above with respect to such Demands. For purposes of this Indenture, references to any calendar quarter shall mean the related preceding calendar quarter ending in January, April, July and October, as applicable. The Indenture Trustee has no duty or obligation to undertake any investigation or inquiry related to any repurchases of Solar Assets, or otherwise assume any additional duties or responsibilities, other than those express duties or responsibilities of the Indenture Trustee hereunder or under the Transaction Documents, and no such additional obligations or duties are otherwise implied by the terms of this Indenture. The Issuer has full responsibility for compliance with all related reporting requirements associated with the transaction completed by the Transaction Documents and for all interpretive issues regarding this information.
Section 12.20. Multiple Roles. The parties expressly acknowledge and consent to Wilmington Trust, National Association, acting in the multiple roles of Indenture Trustee and Transaction Transition Manager. Wilmington Trust, National Association may, in such capacities, discharge its separate functions fully, without hindrance or regard to conflict of interest principles or other breach of duties to the extent that any such conflict or breach arises from the performance by Wilmington Trust, National Association of express duties set forth in this Indenture in any of such capacities, all of which defenses, claims or assertions are hereby expressly waived by the other parties hereto except in the case of negligence (other than errors in judgment), bad faith or willful misconduct by Wilmington Trust, National Association.
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[***] = 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.
Section 12.21. PATRIOT Act. The parties hereto acknowledge that in accordance with the Customer Identification Program (CIP) requirements established under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107 56 (signed into law October 26, 2001) and its implementing regulations (collectively, the "USA PATRIOT Act"), the Indenture Trustee in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Indenture Trustee. Each party hereby agrees that it shall provide the Indenture Trustee with such information as the Indenture Trustee may request from time to time in order to comply with any applicable requirements of the Patriot Act.
ARTICLE XIII
Termination
Section 13.01. Termination of Indenture.
(a) This Indenture shall terminate on the Termination Date. The Servicer shall promptly notify the Indenture Trustee in writing of any prospective termination pursuant to this Article XIII.
(a)Notice of any prospective termination (other than pursuant to Section 6.01(a) with respect to Voluntary Prepayments in full), specifying the Payment Date for payment of the final payment and requesting the surrender of the Notes for cancellation, shall be given promptly by the Indenture Trustee by letter to the Noteholders as of the applicable Record Date and the Rating Agency upon the Indenture Trustee receiving written notice of such event from the Issuer or the Transaction Manager. The Issuer or the Transaction Manager shall give such notice to the Indenture Trustee not later than the 5th day of the month of the final Payment Date describing (i) the Payment Date upon which final payment of the Notes shall be made, (ii) the amount of any such final payment, and (iii) the location for presentation and surrender of the Notes. Surrender of the Notes that are Definitive Notes shall be a condition of payment of such final payment.
[Signature Page Follows]
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[***] = 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 Issuer and the Indenture Trustee have caused this Indenture to be duly executed as of the day and year first above written.
| | |
Sunnova Sol IV Issuer, LLC, as Issuer |
|
|
By /s/Robert L. Lane _ |
Name: Robert L. Lane Title: Executive Vice President, Chief Financial Officer |
|
Wilmington Trust, National Association, as
Indenture Trustee |
|
By /s/Clarice Wright _ |
| Name: Clarice Wright |
| Title: Vice President |
|
|
|
Sunnova TE Management, LLC
as Transaction Manager
By /s/Robert L. Lane _
Name: Robert L. Lane
Title: Executive Vice President, Chief Financial Officer
Sunnova Energy Corporation
with respect to Section 5.09
By /s/Robert L. Lane _
Name: Robert L. Lane
Title: Executive Vice President, Chief Financial Officer
Signature Page to Sunnova 2022-1 Indenture
[***] = 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.
Annex A
Standard Definitions
[see attached]
A-1
[***] = 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.
FINAL
Annex A
Standard Definitions
Rules of Construction. In these Standard Definitions and with respect to the Transaction Documents (as defined below), (a) the meanings of defined terms are equally applicable to the singular and plural forms of the defined terms, (b) in any Transaction Document, the words "hereof," "herein," "hereunder" and similar words refer to such Transaction Document as a whole and not to any particular provisions of such Transaction Document, (c) any subsection, Section, Article, Annex, Schedule and Exhibit references in any Transaction Document are to such Transaction Document unless otherwise specified, (d) the term "documents" includes any and all documents, instruments, agreements, certificates, indentures, notices and other writings, however evidenced (including electronically), (e) the term "including" is not limiting and (except to the extent specifically provided otherwise) shall mean "including (without limitation)", (f) unless otherwise specified, in the computation of periods of time from a specified date to a later specified date, the word "from" shall mean "from and including," the words "to" and "until" each shall mean "to but excluding," and the word "through" shall mean "to and including", (g) the words "may" and "might" and similar terms used with respect to the taking of an action by any Person shall reflect that such action is optional and not required to be taken by such Person, and (h) references to an agreement or other document include references to such agreement or document as amended, restated, reformed, supplemented and/or otherwise modified in accordance with the terms thereof.
"17g-5 Information" has the meaning set forth in Section 12.19 of the Indenture. "17g-5 Website" has the meaning set forth in Section 12.19 of the Indenture.
"1940 Act" means the Investment Company Act of 1940, as amended, including the rules and regulations thereunder.
"Account Property" means the Accounts and all proceeds of the Accounts, including, without limitation, all amounts and investments held from time to time in any Account (whether in the form of deposit accounts, book-entry securities, uncertificated securities, security entitlements (as defined in Section 8-102(a)(17) of the UCC as enacted in the State of New York), financial assets (as defined in Section 8-102(a)(9) of the UCC), or any other investment property (as defined in Section 9-102(a)(49) of the UCC).
"Accountant's Report" has the meaning set forth in Section 4.3(a) of the Transaction Management Agreement.
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.
"Accounts" means collectively, the Collection Account, the Liquidity Reserve Account and the Supplemental Reserve Account.
"Acknowledgment" means, with respect to each Project Company, an agreement entered into among the related Tax Equity Investor Member, the related Managing Member and the Indenture Trustee whereby the Tax Equity Investor Member consents to (i) the transfers from the related Original Managing Member Owner of the membership interests of the related Managing Member through various intermediary entities to the Issuer, (ii) the pledge by (a) the Issuer of the of the related Managing Member Membership Interests and all proceeds thereof and (b) the related Managing Member of the Class B membership interests and any proceeds thereof, in each case, to the Indenture Trustee for the benefit of the Noteholders, (iii) the right, but not the obligation, of the Indenture Trustee, upon the direction of the requisite Noteholders pursuant to the Indenture, to exercise its rights and remedies in respect of its security interest in all or any portion of such membership interests, (iv) any direct or indirect transfer of such membership interests by the Indenture Trustee to a subsequent owner resulting from the exercise of remedies by the Indenture Trustee, and (v) any subsequent assignment of all or any portion of such membership interests by such subsequent owner upon and after the exercise of remedies by the Indenture Trustee, in each case, without any further approval of, consent by, or other action by or of the related Tax Equity Investor Member; provided that the Designated Transfer Restrictions are satisfied in respect of any transfer described in clauses (iv) and (v) above.
"Acquisition Price" has the meaning set forth in the Contribution Agreement.
"Act" has the meaning set forth in Section 12.03 of the Indenture.
"Additional Principal Amount" means, with respect to any Payment Date, an amount equal to 50% of all Available Funds remaining after payment of clauses (i) through (viii) of the Priority of Payments.
"Administrative Services" means the specified administrative services required to be performed by the Project Company Servicer pursuant to the terms of the related Project Company Servicing Agreement.
"Affiliate" means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, a Person shall be deemed to "control" another Person if the controlling Person owns 5% or more of any class of voting securities of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. For the avoidance of doubt, each Tax Equity Investor Member is deemed not to be an Affiliate of the related Project Company solely as a result of owning a membership interest in such Project Company.
"Agent Member" has the meaning set forth in Section 2.02(a) of the Indenture.
"Aggregate Discounted Solar Asset Balance" means, as of any date of determination, the sum of the Discounted Solar Asset Balances of all Solar Assets as of such date of determination.
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.
"Aggregate Outstanding Note Balance" means, as of any date of determination, the sum of the Outstanding Note Balances of all Classes of Notes.
"Allocated Services Provider Fee" means for a Solar Asset, the product of (1) 1/12, (2) the DC kW of installed nameplate capacity of the related PV System and (3) the Allocated Services Provider Fee Base Rate.
"Allocated Services Provider Fee Base Rate" on the Closing Date will be (i) $[***] plus (ii) if the Solar Asset has Energy Storage Systems, the quotient of (a) $[***] divided by (b) the DC kW of installed nameplate capacity of the related PV System plus (iii) if the Solar Asset is subject to a New Home Solar Service Agreement, the quotient of (a) $[***] divided by (b) the DC kW of installed nameplate capacity of the related PV System, and on each December Determination Date commencing in December 2022 the fees described in clause (i) and (ii) shall each be increased by 2.00%. The Allocated Services Provider Fee Base Rate is used solely for the calculation of a Solar Asset's Discounted Solar Asset Balance and is not representative of a Project Company's actual Project Company Expenses.
"Ancillary Solar Service Agreement" means, in respect of each Host Customer Solar Asset, all agreements and documents ancillary to the Solar Service Agreement associated with such Host Customer Solar Asset, which are entered into with a Host Customer in connection therewith.
"Anticipated Repayment Date" means the Payment Date occurring in July 2029.
"Applicable Law" means all applicable laws of any Governmental Authority, including, without limitation, laws relating to consumer leasing and protection and any ordinances, judgments, decrees, injunctions, writs and orders or like actions of any Governmental Authority and rules and regulations of any federal, regional, state, county, municipal or other Governmental Authority.
"Applicable Procedures" has the meaning set forth in Section 2.08(a) of the Indenture.
"Attached Home" means a duplex or triplex, townhome, condo or manufactured or modular home that is an improvement to real property.
"Authorized Officer" means, with respect to any Person, the Chairman, Co-Chairman or Vice Chairman of the Board of Directors, the President, any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer or any other authorized officer of the Person who is authorized to act for the Person and whose name appears on a list of such authorized officers furnished by the Person to the Indenture Trustee (containing the specimen signature of such officers), as such list may be amended or supplemented from time to time.
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.
"Available Funds" means, with respect to any Payment Date, the aggregate Managing Member Distributions, together with (i) earnings on Eligible Investments, (ii) amounts deposited by the Depositor pursuant to the Contribution Agreement, or the Performance Guarantor pursuant to the Performance Guaranty, (iii) amounts transferred from the Supplemental Reserve Account or the Liquidity Reserve Account (including in each case, proceeds of a draw on a Letter of Credit that have been deposited into either such account), (iv) all distributions made by a Project Company to the Issuer upon the related Managing Members' acquisition of the related Tax Equity Investor Member's membership interest in such Project Company, (v) if a Voluntary Prepayment Date is the same date as a Payment Date, amounts received in connection with a Voluntary Prepayment, in each case on deposit in the Collection Account, (vi) any Equity Cure Payment made by Sunnova Energy during a Potential Equity Cure Event on deposit in the Collection Account, (vii) any SREC Proceeds (to the extent the Transaction Manager has not withdrawn such SREC Proceeds from the Collection Account prior to the related Determination Date), PBI Payments and TREC Payments on deposit in the Collection Account and (viii) deposits made to the Collection Account by the Transaction Manager pursuant to the Transaction Management Agreement, minus any amounts released from the Collection Account for payment of the TEP V-E Withdrawal Amount; provided, however, that any amounts due during a Collection Period but deposited into the Collection Account within ten (10) Business Days after the end of such Collection Period may, at the Transaction Manager's option upon notice to the Indenture Trustee, be treated as if such amounts were on deposit in the Collection Account as of the end of such prior Collection Period and if so treated, such amounts shall not be considered Available Funds for any other Payment Date. Additionally, Managing Member Distributions in respect of any Collection Period that are collected or distributed after a Collection Period but prior to the Determination Date related to the Payment Date for such Collection Period shall be deemed to be received or distributed during such Collection Period and shall constitute Available Funds for such Collection Period. For the avoidance of doubt, Host Customer Security Deposits on deposit in the Host Customer Deposit Account and Grid Services Net Revenue are not Available Funds.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. Section 101, et seq., as amended.
"Benefit Plan Investor" has the meaning set forth in Section 2.07(c)(vi) of the Indenture.
"Bill Credit" means a service credit received by a Host Customer as a result of a failure of such Host Customer’s PV System to generate the guaranteed or estimated energy for the applicable period in accordance with the related Production Guaranty or True-Up Obligation.
"Book-Entry Notes" means a beneficial interest in the Notes, ownership and transfers of which shall be made through book entries by a Securities Depository as described in Section 2.02 of the Indenture.
"Business Day" means any day other than (i) a Saturday or Sunday, or (ii) a day on which banking institutions in New York City, the city in which the Transaction Manager is located, the city in which the Custodian administers the Custodial Agreement or the city in which the
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.
Corporate Trust Office of the Indenture Trustee is located are authorized or obligated by law or executive order to be closed.
"Buyout Right" means the right of a member of a Partnership Flip Project Company to purchase the membership interests of the other member of such Partnership Flip Project Company upon the occurrence of certain specified events under the related Partnership Flip Project Company LLCA.
"Calculation Date" means, with respect to any Payment Date, unless the context requires otherwise, the close of business on the last day of the related Collection Period.
"Call Date" means the earliest date on which a Purchase Option may be exercised. "Certifications" has the meaning set forth in Section 4(d) of the Custodial Agreement.
"Class" means all of the Notes of a series having the same Rated Final Maturity, interest rate, priority of payments and designation.
"Class A Make Whole Determination Date" means the Payment Date occurring in July 2026.
"Class A Notes" means the 4.95% Class A Solar Asset Backed Notes, Series 2022-1 issued pursuant to the Indenture.
"Class B Deferred Interest" means, with respect to the Class B Notes and any Payment Date that occurs during a Sequential Interest Amortization Period when the Class A Notes are Outstanding, an amount equal to the sum of (i) interest accrued during the related Interest Accrual Period at the related Note Rate on the Outstanding Note Balance of the Class B Notes immediately prior to such Payment Date and (ii) the amount of unpaid Class B Deferred Interest from prior Payment Dates plus, to the extent permitted by law, interest thereon at the related Note Rate.
"Class B Make Whole Determination Date" means the Payment Date occurring in January 2026.
"Class B Notes" means the 6.35% Class B Solar Asset Backed Notes, Series 2022-1 issued pursuant to the Indenture.
"Clearstream" has the meaning set forth in Section 2.02(a) of the Indenture.
"Closing Date" means the date on which the conditions set forth in Section 6 of the Note Purchase and Placement Agency Agreement are satisfied and the Notes are issued, which date shall be June 27, 2022.
"Closing Date Certification" has the meaning set forth in Section 4(a) of the Custodial Agreement.
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.
"Closing Date Delinquent Solar Asset" means a Host Customer Solar Asset for which the related Host Customer is more than 60 days past due on any portion of a contractual payment due under the related Solar Service Agreement on the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended, including any successor or amendatory statutes and U.S. Department of the Treasury regulations promulgated thereunder.
"Collection Account" has the meaning set forth in Section 5.01(a) of the Indenture.
"Collection Period" means, with respect to a January Payment Date, the immediately preceding three-month period beginning on and including October 1 and ending on and including December 31; with respect to an April Payment Date, the immediately preceding three-month period beginning on and including January 1 and ending on and including March 31; with respect to a July Payment date, the immediately preceding three-month period beginning on and including April 1 and ending on and including June 30 and with respect to an October Payment Date, the immediately preceding three-month period beginning on and including July 1 and ending on and including September 30. Notwithstanding the foregoing, the initial Collection Period will be the period from, but not including, the Initial Cut-Off Date through, and including, June 30, 2022.
"Consumer Protection Law" means all Applicable Laws and implementing regulations protecting the rights of consumers, including but not limited to those Applicable Laws enforced or administered by the Consumer Financial Protection Bureau, the Federal Trade Commission, and any other federal or state Governmental Authority (such as, by way of example, the California Department of Consumer Affairs) empowered with similar responsibilities.
"Contribution Agreement" means, the sale and contribution agreement, dated as of the Closing Date, by and among Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor and the Issuer.
"Controlling Class" means the Class A Notes until the Outstanding Note Balance thereof has been reduced to zero, then the Class B Notes.
"Conveyed Property" has the meaning set forth in the Contribution Agreement.
"Corporate Trust Office" means the office of the Indenture Trustee at which its corporate trust business shall be administered, which office on the Closing Date shall be for note transfer purposes and for purposes of presentment and surrender of the Notes for the final distributions thereon, as well as for all other purposes, Wilmington Trust, National Association, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration, or such other address as shall be designated by the Indenture Trustee in a written notice to the Issuer and the Transaction Manager.
"Credit and Underwriting Policy" means Sunnova Energy’s standardized protocol and set policies to qualify potential customers.
7
[***] = 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.
"Custodial Agreement" means that certain custodial agreement, dated as of the Closing Date, among the Custodian, the Transaction Manager, the Indenture Trustee and the Issuer.
"Custodian" means U.S. Bank as custodian of the Custodian Files pursuant to the terms of the Custodial Agreement, and its permitted successors and assigns.
"Custodian Fee" means, for each Payment Date (in accordance with and subject to the Priority of Payments) an amount equal to $[***].
"Custodian File" means (i) a PDF copy of the related Solar Service Agreement executed by a Host Customer, including any amendments thereto, provided that if an amendment to a Solar Service Agreement is not fully executed, the Custodian File shall only be deemed to contain such Solar Service Agreement without giving effect to such amendment, (ii) to the extent not incorporated within the related Solar Service Agreement, a fully executed copy of the related Production Guaranty and/or Customer Warranty Agreement, if any, (iii) an executed electronic copy of the related Interconnection Agreement to which Sunnova Energy is a party, if any, (iv) an executed copy of the related Net Metering Agreement, if any, to which Sunnova Energy is a party, if separate from the Interconnection Agreement, (v) documents evidencing Permits to operate the related PV System and, if applicable, Energy Storage System, if any, (vi) an executed copy of the related Payment Facilitation Agreement, if any, (vii) all customer information with respect to ACH payments, if any, and (viii) any other documents the Project Company Manager routinely keeps on file, in accordance with its customary procedures, relating to such Solar Asset or the related Host Customer, which may include documents evidencing permission to operate a PV System from the related utility or Governmental Authority, as applicable, or Rebates, if any. For purposes of clause (i) of this definition, "executed by a Host Customer" does not require the signature of any co-owner.
"Customer Warranty Agreement" means (a) with respect to a PV System and, if applicable, an Energy Storage System, any separate warranty agreement provided by Sunnova Energy to a Host Customer (which may be an exhibit to a Solar Service Agreement) in connection with the performance and installation of the related PV System and, if applicable, Energy Storage System (which, in the case of a PV System, may include a Production Guaranty); and (b) with respect to an Energy Storage System, any separate warranty agreement provided by Sunnova Energy to a Host Customer pursuant to which Sunnova Energy or its agents have agreed to repair or replace an Energy Storage System in accordance with the terms of the Manufacturer's Warranty attached to such agreement.
"Cut-Off Date" means the Initial Cut-Off Date or a Subsequent Cut-Off Date, as applicable.
"Dealer" means a third party with whom the Originator or any of its affiliates contracts to source potential customers and to design, install and service PV Systems and/or Energy Storage Systems.
8
[***] = 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.
"Dealer Warranty" means a Dealer's workmanship warranty under which the Dealer is obligated, at its sole cost and expense, to correct defects in its installation work for a period of at least ten years and provide a roof warranty of at least five years, in each case, from the date of installation.
"Default" means any event which results, or which with the giving of notice or the lapse of time or both would result, in an Event of Default or a Transaction Manager Termination Event.
"Defaulted Solar Asset" means (i) in the case of a Host Customer Solar Asset, (A) the related Host Customer is more than 120 days past due on any portion of a contractual payment due under the related Solar Service Agreement and (B) the related Solar Service Agreement has not been brought current or the related PV System and, if applicable, Energy Storage System has not been removed and/or the related Solar Service Agreement re-assigned (or a replacement Solar Service Agreement executed) within 240 days after the end of such 120 day period; provided that, for the avoidance of doubt, any past due amounts owed by an original Host Customer after reassignment to or execution of a replacement Solar Service Agreement with a new Host Customer will not cause the Host Customer Solar Asset to be deemed to be a Defaulted Solar Asset and (ii) in the case of a TREC, (A) the TREC Obligor is more than 60 days past due on any portion of amounts due under such TREC or (B) the related TREC is terminated without payment for any reason.
"Defective Solar Asset" means a Designated Solar Asset with respect to which it is determined by the Indenture Trustee (acting at the written direction of the Majority Noteholders of the Controlling Class) or the Transaction Manager, at any time, that the Depositor or the Issuer breached one or more of the applicable representations or warranties regarding eligibility of such Solar Asset contained in Schedule I to the Contribution Agreement as of the related Cut-Off Date (or as of the Closing Date or related Transfer Date, as so provided in Schedule I to the Contribution Agreement), which breach has a material adverse effect on the Noteholders and has not been cured within the applicable grace period or waived by the Majority Noteholders of the Controlling Class.
"Deferred Post-ARD Additional Note Interest" has the meaning set forth in Section 2.03(c) of the Indenture.
"Definitive Notes" has the meaning set forth in Section 2.02(c) of the Indenture.
"Delivery" when used with respect to Account Property means:
(i)(A) with respect to bankers' acceptances, commercial paper, negotiable certificates of deposit and other obligations that constitute "instruments" within the meaning of Section 9-102(a)(47) of the UCC, transfer thereof:
(1)by physical delivery to the Indenture Trustee, indorsed to, or registered in the name of, the Indenture Trustee or its nominee or indorsed in blank;
9
[***] = 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)by the Indenture Trustee continuously maintaining possession of such instrument; and
(3)by the Indenture Trustee continuously indicating by book-entry that such instrument is credited to the related Account;
(B) with respect to a "certificated security" (as defined in Section 8-102(a)(4) of the UCC), transfer thereof:
(1) by physical delivery of such certificated security to the Indenture Trustee, provided that if the certificated security is in registered form, it shall be indorsed to, or registered in the name of, the Indenture Trustee or indorsed in blank;
(2) by the Indenture Trustee continuously maintaining possession of such certificated security; and
(3) by the Indenture Trustee continuously indicating by book-entry that such certificated security is credited to the related Account;
(C) with respect to any security issued by the U.S. Treasury, the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association that is a book-entry security held through the Federal Reserve System pursuant to Federal book entry regulations, the following procedures, all in accordance with Applicable Law, including applicable federal regulations and Articles 8 and 9 of the UCC, transfer thereof:
(1)by (x) book-entry registration of such property to an appropriate book-entry account maintained with a Federal Reserve Bank by a securities intermediary which is also a "depositary" pursuant to applicable federal regulations and issuance by such securities intermediary of a deposit advice or other written confirmation of such book-entry registration to the Indenture Trustee of the purchase by the securities intermediary on behalf of the Indenture Trustee of such book-entry security; the making by such securities intermediary of entries in its books and records identifying such book-entry security held through the Federal Reserve System pursuant to Federal book-entry regulations as belonging to the Indenture Trustee and continuously indicating that such securities intermediary holds such book-entry security solely as agent for the Indenture Trustee or (y) continuous book-entry registration of such property to a book-entry account maintained by the Indenture Trustee with a Federal Reserve Bank; and
(2)by the Indenture Trustee continuously indicating by book-entry that property is credited to the related Account;
10
[***] = 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.
(D) with respect to any asset in the Accounts that is an "uncertificated security"
(as defined in Section 8-102(a)(18) of the UCC) and that is not governed by clause (C) above or clause (E) below:
(1) transfer thereof:
(a)by registration to the Indenture Trustee as the registered owner thereof, on the books and records of the issuer thereof; or
(b)by another Person (not a securities intermediary) who either becomes the registered owner of the uncertificated security on behalf of the Indenture Trustee, or having become the registered owner, acknowledges that it holds for the Indenture Trustee; or
(2) the issuer thereof has agreed that it will comply with instructions originated by the Indenture Trustee with respect to such uncertificated security without further consent of the registered owner thereof; or
(E) in the case of each security in the custody of or maintained on the books of a clearing corporation (as defined in Section 8-102(a)(5) of the UCC) or its nominee, by causing:
(1)the relevant clearing corporation to credit such security to a securities account of the Indenture Trustee at such clearing corporation; and
(2)the Indenture Trustee to continuously indicate by book-entry that such security is credited to the related Account;
(F) with respect to a "security entitlement" (as defined in Section 8-102(a)(17) of the UCC) to be transferred to or for the benefit of a collateral agent and not governed by clauses (C) or (E) above: if a securities intermediary (1) indicates by book entry that the underlying "financial asset" (as defined in Section 8-102(a)(9) of the UCC) has been credited to be the Indenture Trustee's "securities account" (as defined in Section 8-501(a) of the UCC), (2) receives a financial asset from the Indenture Trustee or acquires the underlying financial asset for the Indenture Trustee, and in either case, accepts it for credit to the Indenture Trustee's securities account or (3) becomes obligated under other law, regulation or rule to credit the underlying financial asset to the Indenture Trustee's securities account, the making by the securities intermediary of entries on its books and records continuously identifying such security entitlement as belonging to the Indenture Trustee; and continuously indicating by book-entry that such securities entitlement is credited to the Indenture Trustee's securities account; and by the Indenture Trustee continuously indicating by book-entry that such security entitlement (or all rights and
11
[***] = 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.
property of the Indenture Trustee representing such securities entitlement) is credited to the related Account; and/or
(ii) In the case of any such asset, such additional or alternative procedures as are now or may hereafter become appropriate to effect the complete transfer of ownership of, or control over, any such assets in the Accounts to the Indenture Trustee free and clear of any adverse claims, consistent with changes in Applicable Law or the interpretation thereof. In each case of Delivery contemplated by the Indenture, the Indenture Trustee shall make appropriate notations on its records, and shall cause the same to be made on the records of its nominees, indicating that securities are held in trust pursuant to and as provided in the Indenture.
"Depositor" means Sunnova Sol IV Depositor, LLC, a Delaware limited liability company.
"Depositor Financing Statement" means a UCC-1 financing statement naming the Issuer as the secured party and the Depositor as debtor.
"Designated Solar Asset" means, as of the Closing Date (with respect to the Initial Solar Assets) and as of the Transfer Date (with respect to any Qualified Substitute Solar Assets), the Solar Assets (other than those Solar Assets identified on the Schedule of Solar Assets as Non-Advanced Solar Assets or Closing Date Delinquent Solar Assets) listed on the Schedule of Solar Assets.
"Designated Transfer Restrictions" means, for each Partnership Flip Project Company, the restrictions on the transfer of such Managing Member Membership Interests and the related membership interests in each Project Company, as set forth in the related Partnership Flip Project Company LLCA.
"Determination Date" means, with respect to any Payment Date, the close of business on the third Business Day prior to such Payment Date.
"Discount Rate" means 5.00%.
"Discounted Solar Asset Balance" means, as of any date of determination, (i) with respect to a Host Customer Solar Asset, an amount equal to the present value of the remaining and unpaid stream of Net Scheduled Payments for such Host Customer Solar Asset on or after such date of determination, based upon discounting such Net Scheduled Payments to such date of determination at an annual rate equal to the Discount Rate and (ii) a TREC is equal to the present value of the remaining and unpaid stream of Projected TREC Payments for such TREC on or after such date of determination, based upon discounting such Projected TREC Payments to such date of determination at an annual rate equal to the Discount Rate; provided, however, that in the case of the foregoing, any Non-Advanced Solar Asset, Defective Solar Asset, Defaulted Solar Asset or Terminated Host Customer Solar Asset, as applicable, will be deemed to have a
12
[***] = 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.
Discounted Solar Asset Balance equal to zero ($0); provided, further, that in the case of a Qualified Substitute Solar Asset, the Discounted Solar Asset Balance for such Qualified Substitute Solar Asset will be equal to the present value of the remaining and unpaid stream of Net Scheduled Payments for such Host Customer Solar Asset for the period beginning on such date of determination and ending on the earlier of (A) the Rated Final Maturity and (B) the date of the last Net Scheduled Payment for such Host Customer Solar Asset based upon discounting such Net Scheduled Payments to such date of determination at an annual rate equal to the Discount Rate. Prepaid Solar Service Agreements and Closing Date Delinquent Solar Assets may have a negative Discounted Solar Asset Balance because of allocation of a pro rata share of certain costs to such Solar Service Agreements.
"Distributable Cash" means, with respect to any Project Company, "Distributable Cash" as set forth in the related Project Company LLCA, respectively.
"Distribution Date" means the fifteenth (15th) day after the last day of any calendar quarter.
"Dollars", "$", "U.S. Dollars" or "U.S. $" shall mean (a) United States dollars or (b) denominated in United States dollars.
"DSCR" means for any Determination Date an amount equal to:
(i) (a) the sum of (1) the aggregate Host Customer Payments received during the
related Collection Period (excluding (x) any amounts paid by the related Host Customer associated with the prepayment or buyout of expected future cash flows for future Collection Periods and (y) the sum of (I) any amounts paid by the related Host Customer in respect of sales, use or property taxes and (II) any amounts received by the Project Companies in respect of SREC Proceeds, tax refunds, rebates or credit received in the related Collection Period), (2) the aggregate PBI Payments and TREC Payments received during the related Collection Period, and (3) the portion of Insurance Proceeds received during the related Collection Period in respect of lost Host Customer Payments, PBI Payments, TREC Payments or business interruption insurance; provided, however, that any amounts due during a Collection Period but deposited into the Collection Account within ten (10) Business Days after the end of such Collection Period may, at the Transaction Manager's option upon notice to the Indenture Trustee, be treated as if such amounts were on deposit in the Collection Account as of the end of such prior Collection Period and if so treated, such amounts shall not be considered received during any other Collection Period; minus (b) the sum of (1) the aggregate Project Company Expenses paid or reserved for during the related Collection Period with respect to all Project Companies, (2) the Tax Equity Investor Distributions in respect of the related Collection Period, (3) the aggregate indemnity payments, if any, paid or reserved for by the Managing Members to the Tax Equity Investor Members (without duplication of any amounts distributed to the Tax Equity Investor Members as a result of the occurrence of a Limited Step-up Event) or the Starlane Lessor, as applicable, in respect of the related Collection Period (other than to the extent paid from proceeds of the Tax
13
[***] = 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.
Loss Insurance Policies), and (4) the sum of the Transaction Manager Fee, the Transaction Transition Manager Fee, the Custodian Fee and the Indenture Trustee Fee, in each case payable on the related Payment Date, divided by
(ii) the Total Debt Service for the related Payment Date.
Upon timely payment and deposit of the Equity Cure Payment into the Collection Account, the Equity Cure Payment shall be added to the sum specified in clause (i)(A) of the definition of "DSCR" for purposes of calculating the DSCR as of the applicable Determination Date.
"DTC" means The Depository Trust Company, a New York corporation and its successors and assigns.
"Early Amortization Period" means the period commencing on any Determination Date if (in each case, except during the continuance of a Sequential Interest Amortization Period):
(i)the DSCR is less than or equal to 1.15 for such Determination Date and the immediately preceding Determination Date;
(ii)the insurance required to be maintained by any Project Company under the related Project Company LLCA is not in effect;
(iii)on any date after the Anticipated Repayment Date, the Aggregate Outstanding Note Balance is greater than zero; or
(iv)the commencement of: (a) a voluntary case by the Starlane Lessor under the Bankruptcy Code or (b) an involuntary case against the Starlane Lessor under the Bankruptcy Code (or other debtor relief laws) and the related petition is not controverted or dismissed within sixty (60) consecutive days after commencement of the case.
An Early Amortization Period of the type described in clause (i) shall continue until the DSCR is greater than 1.15 for two (2) consecutive Determination Dates. An Early Amortization Period of the type described in clause (ii) shall continue until all insurance required to be maintained by any Project Company under the Project Company LLCA is in effect. An Early Amortization Period of the type described in clause (iii) will continue until the Aggregate Outstanding Note Balance has been reduced to zero. An Early Amortization Period of the type described in clause (iv) will continue until the earlier of (a) the date on which the court in the case (1) approves an assumption by the debtor of the Starlane Master Lease or (2) determines that Solar Service Agreements of the Starlane Owner Project Company and the Starlane Owner Project Company's leasehold interest under the Starlane Master Lease in the Starlane PV Systems remain the property of the Starlane Owner Project Company and (b) the Aggregate Outstanding Note Balance has been reduced to zero.
14
[***] = 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.
"Electronic Copy" means the electronic form into which Sunnova Energy, in the ordinary course of its business and in compliance with its document storage policy, originates in an electronic form or converts into an electronic form all Solar Service Agreements, PBI Documents and Lease Agreements.
"Eligible Account" means either (i) a segregated trust account or accounts maintained with an institution whose deposits are insured by the Federal Deposit Insurance Corporation, the unsecured and uncollateralized long-term debt obligations of which institution shall be rated investment grade or higher by S&P and the short-term debt obligations of which are at least investment grade by S&P, and which is (A) a federal savings and loan association duly organized, validly existing and in good standing under the federal banking laws, (B) an institution duly organized, validly existing and in good standing under the applicable banking laws of any State, (C) a national banking association duly organized, validly existing and in good standing under the federal banking laws or (D) a subsidiary of a bank holding company, and as to which the Rating Agency has indicated that the use of such account shall not cause the withdrawal of its rating on any Notes, (ii) a segregated trust account or accounts maintained with the trust department of a federal or State chartered depository institution, having capital and surplus of not less than $[***], acting in its fiduciary capacity, and acceptable to the Rating Agency or (iii) with respect to the Host Customer Deposit Account, JPMorgan Chase Bank, N.A.
"Eligible Investments" means any one or more of the following obligations or securities:
(i) (A) direct interest-bearing obligations of, and interest-bearing obligations
guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality of the United States the obligations of which are backed by the full faith and credit of the United States; (B) direct interest-bearing obligations of, and interest-bearing obligations guaranteed as to payment of principal and interest by, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, but only if, at the time of investment, such obligations are assigned the highest credit rating by S&P; and (C) evidence of ownership of a proportionate interest in specified obligations described in (A) and/or (B) above;
(ii)demand, time deposits, money market deposit accounts, certificates of deposit of, and federal funds sold by, depository institutions or trust companies (including the Indenture Trustee acting in its commercial capacity) incorporated under the laws of the United States of America or any State thereof (or domestic branches of foreign banks), subject to supervision and examination by federal or state banking or depository institution authorities, and having, at the time of the Issuer's investment or contractual commitment to invest therein, a short term unsecured debt rating of "[***]" by S&P, or such lower rating as will not result in the downgrading, qualification or withdrawal of the rating on any Note by the Rating Agency;
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.
(iii)securities bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any State thereof which have a rating of no less than "[***]” by S&P and a maturity of no more than 365 days;
(iv)commercial paper (including both non-interest bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the closing date thereof) of any corporation (other than the Issuer, but including the Indenture Trustee, acting in its commercial capacity), incorporated under the laws of the United States of America or any State thereof, that, at the time of the investment or contractual commitment to invest therein, a rating of "[***]" by the S&P, or such lower rating as will not result in the downgrading, qualification or withdrawal of the rating on any Note by the Rating Agency;
(v)money market mutual funds, including, without limitation, those of the Indenture Trustee or any Affiliate thereof, or any other mutual funds registered under the 1940 Act which invest only in other Eligible Investments, having a rating, at the time of such investment, in the highest rating category by S&P, including any fund for which the Indenture Trustee, or an Affiliate thereof serves as an investment advisor, administrator, shareholder servicing agent, and/or custodian or subcustodian, notwithstanding that (A) the Indenture Trustee or an affiliate thereof, charges and collects fees and expenses from such funds for services rendered, (B) the Indenture Trustee or an affiliate thereof, charges and collects fees and expenses for services rendered under the Transaction Documents and (C) services performed for such funds and pursuant to the Transaction Documents may converge at any time;
(vi)money market deposit accounts, demand deposits, time deposits or certificates of deposit of any depository institution or trust company incorporated under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking or depository institution authorities; provided, however, that at the time of the investment or contractual commitment to invest therein, the commercial paper or other short-term unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) thereof shall be rated "[***]” by S&P;
(vii)any investment approved in writing by the Issuer, and with respect to which the Issuer provides written evidence that such investment will not result in a downgrading, qualification or withdrawal of the rating on any Note by the Rating Agency;
(viii)repurchase agreements with respect to obligations of, or guaranteed as to principal and interest by, the United States of America or any agency or instrumentality thereof when such obligations are backed by the full faith and credit of the United States of America; provided, however, that the unsecured obligations of the party agreeing to repurchase such obligations at the time have a credit rating of no less than the [***] by S&P; and
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.
(ix)any investment agreement (including guaranteed investment certificates,
forward delivery agreements, repurchase agreements or similar obligations) with an entity which on the date of acquisition has a credit rating of no less than the [***] by S&P.
The Indenture Trustee, or an Affiliate thereof may charge and collect such fees from such funds as are collected customarily for services rendered to such funds (but not to exceed investments earnings thereon).
The Indenture Trustee may purchase from or sell to itself or an Affiliate, as principal or agent, the Eligible Investments listed above. All Eligible Investments in an Account shall be made in the name of the Indenture Trustee for the benefit of the Noteholders.
"Eligible Letter of Credit Bank" means a financial institution having total assets in excess of $[***] and with a long term rating of at least "[***]” by S&P and a short term rating of at least "[***]” by S&P.
"Eligible Solar Asset" means a Designated Solar Asset meeting, as of the related Cut-Off Date (or as of the Closing Date or related Transfer Date where so provided), all of the requirements set forth in Schedule I of the Contribution Agreement.
"Energy Storage System" means an energy storage system capable of delivering electricity to the location where installed without regard to connection to or operability of the electric grid in such location and to be used in connection with a PV System, including all equipment related thereto (including any battery management system, wiring, conduits and any replacement or additional parts included from time to time).
"Equity Cure Payment" has the meaning set forth in Section 5.07(a) of the Indenture. "ERISA" has the meaning set forth in Section 2.07(c)(vi) of the Indenture.
"EU Risk Retention, Due Diligence and Transparency Requirements" means Articles 5, 6 and 7 of the EU Securitization Regulation.
"EU Securitization Regulation" means Regulation (EU) 2017/2402 of the European Parliament and of the Council of December 12, 2017, as amended.
"Euroclear" has the meaning set forth in Section 2.02(a) of the Indenture. "Event of Default" has the meaning set forth in Section 9.01 of the Indenture.
"Event of Loss" means, with respect to a PV System or Energy Storage System, a loss that is deemed to have occurred with respect to a PV System or Energy Storage System if such PV System or Energy Storage System, as applicable, is damaged or destroyed by fire, theft or other
17
[***] = 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.
casualty and such PV System or Energy Storage System, as applicable, has become inoperable because of such event.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Home Lease Agreement" means a Lease Agreement that is not a New Home Solar Service Agreement.
"FATCA" means Sections 1471 through 1474 of the Code, official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement, and any amendments made to any of the foregoing after the Closing Date.
"FATCA Withholding Tax" means any withholding or deduction made pursuant to FATCA in respect of any payment.
"Financing Statements" means, collectively, the Sunnova Intermediate Holdings Financing Statement, the Sunnova Intermediate Holdings Solar Asset Financing Statement, the Sunnova Sol IV Holdings Financing Statement, the Depositor Financing Statement, the Issuer Financing Statement, the Sol Owner Managing Member Solar Asset Financing Statement, the Sol Owner Financing Statement, the Starlane Owner Financing Statement and the Managing Member Financing Statements.
"Flip Date" means the date after which the proportion of Distributable Cash distributable to the applicable Tax Equity Investor Member in a Partnership Flip Project Company is reduced pursuant to the related Partnership Flip Project Company LLCA; provided, that with respect to the TEP IV-F Project Company and TEP V-D Project Company, the proportion of Distributable Cash distributable to the applicable Tax Equity Investor Member is not reduced after the related Flip Date.
"Force Majeure Event" means any event or circumstances beyond the reasonable control of and without the fault or negligence of the Person claiming Force Majeure. It shall include, without limitation, failure or interruption of the production, delivery or acceptance of electricity due to: an act of god; war (declared or undeclared); sabotage; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out; explosion; fire; epidemic; pandemic; earthquake; abnormal weather condition or actions of the elements; hurricane; flood; lightning; wind; drought; the binding order of any Governmental Authority (provided that such order has been resisted in good faith by all reasonable legal means); the failure to act on the part of any Governmental Authority (provided that such action has been timely requested and diligently pursued); unavailability of electricity from the utility grid, equipment, supplies or products (but not to the extent that any such availability of any of the foregoing results from the failure of the Person
18
[***] = 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.
claiming Force Majeure to have exercised reasonable diligence); and failure of equipment not utilized by or under the control of the Person claiming Force Majeure.
"GAAP" means (i) generally accepted accounting principles in the United States of America as in effect from time to time, consistently applied and (ii) upon mutual agreement of the parties, internationally recognized generally accepted accounting principles, consistently applied.
"Global Notes" means, individually and collectively, the Regulation S Temporary Global Note, the Regulation S Permanent Global Note and the Rule 144A Global Note.
"Governmental Authority" means any national, State or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau or entity, (including any zoning authority, the Federal Regulatory Energy Commission, the relevant State commissions, the Federal Deposit Insurance Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
"Grant" means to pledge, create and grant a security interest in and with regard to property. A Grant shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including without limitation the immediate and continuing right to claim for, collect, receive and give receipts for principal and interest payments in respect of such collateral and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring proceedings in the name of the granting party or otherwise, and generally to do and receive anything which the granting party is or may be entitled to do or receive thereunder or with respect thereto.
"Grid Services" means any grid services (including but not limited to resource adequacy, operating reserves and load relief), energy services (including but not limited to demand reduction, energy injection and energy consumption) and ancillary services (including but not limited to primary and secondary frequency response, frequency regulation and voltage support); provided however, Grid Services shall not include the sale of SRECs or the sale of energy to a Host Customer pursuant to the related Solar Service Agreement.
"Grid Services Agreement" has the meaning set forth in the definition of Payment Facilitation Agreement.
"Grid Services Customer Payment Amount" means, in respect of Grid Services Revenue, the amount required to be paid by the Project Company Servicer or its Affiliate to a Host Customer from the proceeds of Grid Services Revenue in consideration of such Host Customer's participation or enrollment in a Grid Services program.
19
[***] = 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.
"Grid Services Net Revenue" means an amount equal to (i) Grid Services Revenue, less (ii) any reduction, credit or discount provided with respect to a Host Customer’s monthly bill in consideration of such Host Customer’s participation in a Grid Services program (which amount described in clause (ii) will be treated as Distributable Cash in accordance with applicable general distribution ratios set forth in the related Project Company LLCA), less (iii) with respect to the TEP-IV D Project Company, TEP IV-E Project Company and TEP IV-G Project Company, any Grid Services Customer Payment Amounts.
"Grid Services Revenue" means payments or revenue received by a Project Company from the sale or provision of Grid Services from a PV System and/or Energy Storage System to public utilities, independent power producers, retail energy providers, regional transmission organizations, energy trading companies, or other entities from time to time.
"Highest Lawful Rate" has the meaning set forth in the Contribution Agreement.
"Holder" means a Noteholder.
"Host Customer" means a customer under a Solar Service Agreement.
"Host Customer Deposit Account" means the segregated trust account with that name established with JPMorgan Chase Bank, N.A. (or such successor bank, if applicable) in the name of the Originator and maintained pursuant to Section 5.01 of the Indenture.
"Host Customer Payments" means, with respect to a PV System, an Energy Storage System and a Solar Service Agreement, all payments due under or in respect of such Solar Service Agreement, including any amounts attributable to sales, use or property tax. Grid Services Revenue retained by a Project Company in connection with any reduction, credit or discount provided with respect to a Host Customer's participation in a Grid Services program shall constitute Host Customer Payments. For the avoidance of doubt, Host Customer Security Deposits will not constitute Host Customer Payments.
"Host Customer Purchased Solar Asset" means a Host Customer Solar Asset for which the related Host Customer has exercised its option, if any, to purchase the related PV System or Energy Storage System prior to the expiration of the term of the related Solar Service Agreement.
"Host Customer Security Deposit" means any security deposit that a Host Customer must provide in accordance with such Host Customer's Solar Service Agreement or Sunnova Energy's Credit and Underwriting Policy.
"Host Customer Solar Asset" means (i) a PV System and, if applicable, an Energy Storage System installed on a residential property, (ii) all related real property rights, Permits and Manufacturer Warranties (in each case, to the extent transferable), (iii) all rights and remedies of the lessor/seller under the related Solar Service Agreement, including all Host Customer Payments on and after the related Cut-Off Date and any related security therefor (other than Host
20
[***] = 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.
Customer Security Deposits), (iv) all rights and remedies of the payee under any PBI Documents related to such PV System, including all PBI Payments on and after the related Cut-Off Date and (v) all documentation in the Custodian File and other documents maintained by the Custodian related to such PV System and, if applicable, Energy Storage System, the PBI Documents and the Solar Service Agreement, if any.
"Indenture" means the indenture between the Issuer and the Indenture Trustee, dated as of the Closing Date, as supplemented or amended by one or more indentures supplemental thereto entered into pursuant to the applicable provisions thereof.
"Indenture Trustee" means Wilmington Trust, until a successor Person shall have become the Indenture Trustee pursuant to the applicable provisions of the Indenture, and thereafter "Indenture Trustee" means such successor Person in its capacity as indenture trustee.
"Indenture Trustee Fee" means, for each Payment Date (in accordance with and subject to the Priority of Payments) an amount equal to $[***].
"Independent Accountant" means a nationally recognized firm of public accountants selected by the Transaction Manager; provided, that such firm is independent with respect to the Transaction Manager within the meaning of the Securities Act.
"Initial Cut-Off Date" means March 1, 2022.
"Initial Outstanding Note Balance" means for the Class A Notes and the Class B Notes, $317,000,000 and $38,000,000, respectively.
"Initial Purchaser" means Credit Suisse Securities (USA) LLC and its successors and assigns, in its capacity as initial purchaser under the Note Purchase and Placement Agency Agreement.
"Initial Solar Assets" means a portfolio of Host Customer Solar Assets and TRECs owned or leased by the Issuer or the Project Companies and identified on the Schedule of Solar Assets on the Closing Date.
"Insolvency Event" means, with respect to any Person:
(i)the commencement of: (a) a voluntary case by such Person under the Bankruptcy Code or (b) the seeking of relief by such Person under other debtor relief laws in any jurisdiction outside of the United States;
(ii)the commencement of an involuntary case against such Person under the Bankruptcy Code (or other debtor relief laws) and the petition is not controverted or dismissed within 60 days after commencement of the case;
21
[***] = 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.
(iii)a custodian (as defined in the Bankruptcy Code) (or equal term under any other debtor relief law) is appointed for, or takes charge of, all or substantially all of the property of such Person;
(iv)such Person commences (including by way of applying for or consenting to the appointment of, or the taking of possession by, a rehabilitator, receiver, custodian, trustee, conservator or liquidator (or any equal term under any other debtor relief laws) (collectively, a "conservator") of such Person or all or any substantial portion of its property) any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, liquidation, rehabilitation, conservatorship or similar law of any jurisdiction whether now or hereafter in effect relating to such Person;
(v)such Person is adjudicated by a court of competent jurisdiction to be insolvent or bankrupt;
(vi)any order of relief or other order approving any such case or proceeding referred to in clauses (i) or (ii) above is entered;
(vii)such Person suffers any appointment of any conservator or the like for it or any substantial part of its property that continues undischarged or unstayed for a period of sixty (60) days; or
(viii)such Person makes a compromise, arrangement or assignment for the benefit of creditors or generally does not pay its debts as such debts become due.
"Insolvency Proceeding" means any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, composition or other judicial proceedings.
"Insurance Proceeds" means any funds, moneys or other net proceeds received by or on behalf of a Project Company as the payee in connection with the physical loss or damage to a PV System and/or Energy Storage System, a loss of revenue associated with a PV System and/or Energy Storage System or any other insurable event, including any incident that will be covered by the insurance coverage paid for and maintained by the Project Company Manager on the Project Company's behalf.
"Interconnection Agreement" means, with respect to a PV System and, if applicable, an Energy Storage System, a contractual obligation between a utility and a Host Customer (and, in some cases, the owner of the related PV System and, if applicable, Energy Storage System) that allows the Host Customer to interconnect such PV System and, if applicable, any related Energy Storage System to the utility electrical grid.
"Interest Accrual Period" means for each Payment Date, the period from and including the immediately preceding Payment Date to but excluding such Payment Date and in each case
22
[***] = 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.
will be deemed to be a period of 90 days, except that the Interest Accrual Period for the initial Payment Date shall be the number of days (assuming twelve 30-day calendar months) from and including the Closing Date to, but excluding, the initial Payment Date. For purposes of this calculation, all Payment Dates will be deemed to occur on the 30th calendar day of January, April, July and October, as applicable.
"Inverter" means, with respect to a PV System, the necessary device(s) required to convert the variable direct electrical current (DC) output from a Solar Photovoltaic Panel into a utility frequency alternating electrical current (AC) that can be used by a Host Customer's home or property, or that can be fed back into a utility electrical grid pursuant to an Interconnection Agreement.
"Issuer" means Sunnova Sol IV Issuer, LLC, a Delaware limited liability company.
"Issuer Financing Statement" means a UCC-1 financing statement naming the Indenture Trustee as the secured party and the Issuer as the debtor.
"Issuer Operating Agreement" means that certain Amended and Restated Limited Liability Company Agreement of the Issuer dated the Closing Date.
"Issuer Order" means a written order or request signed in the name of the Issuer by an Authorized Officer and delivered to the Indenture Trustee.
"Issuer Secured Obligations" means all amounts and obligations which the Issuer may at any time owe to or on behalf of the Indenture Trustee for the benefit of the Noteholders under the Indenture or the Notes.
"ITC" has the meaning ascribed to the term "ITC" in the applicable Project Company Documents.
"KBRA" means Kroll Bond Rating Agency, LLC, and its successors and assigns.
"Lease Agreement" means an agreement between the owner of the PV System and/or Energy Storage System (or, in the case of a Solar Asset subject to the Starlane Master Lease, the Starlane Owner Project Company) and a Host Customer whereby the Host Customer leases a PV System and/or Energy Storage System from such owner (or, in the case of a Solar Asset subject to the Starlane Master Lease, the Starlane Owner Project Company) for fixed or escalating monthly payments.
"LeasePlus Agreement" means a Lease Agreement pursuant to which Sunnova Energy leases a PV System to the related Host Customer at a fixed monthly rate for the entirety of the term of the lease and which contains a performance guaranty pursuant to which Sunnova Energy will credit the related Host Customer if the PV System fails to meet a guaranteed minimal level of power production on an annual basis.
23
[***] = 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.
"Lennar" means Lennar Corporation, a Delaware corporation. "LEN X" means LEN X, LLC, a Florida limited liability company.
"Letter of Credit" means any letter of credit issued by an Eligible Letter of Credit Bank and provided by the Issuer to the Indenture Trustee in lieu of or in substitution for moneys otherwise required to be deposited in the Liquidity Reserve Account or the Supplemental Reserve Account,
as applicable, which Letter of Credit is to be held as an asset of the Liquidity Reserve Account or the Supplemental Reserve Account, as applicable.
"Lien" means, with respect to any asset, any mortgage, deed of trust, lien, pledge, charge, security interest, easement or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected or effective under Applicable Law.
"Limited Step-Up Event" means events set forth in a Partnership Flip Project Company LLCA that adjust the amount or ratio of the related Tax Equity Investor Member will receive of the Distributable Cash that otherwise would be payable to the related Managing Member.
"Liquidated Damages Amount" means, as of any date of determination, for a Defective Solar Asset an amount equal to the Securitization Share of DSAB of such Solar Asset immediately prior to becoming a Defective Solar Asset. For the avoidance of doubt the Liquidated Damages Amount will not be less than zero ($0).
"Liquidity Reserve Account" has the meaning set forth in Section 5.01(a) of the Indenture.
"Liquidity Reserve Account Floor Amount" means, with respect to each Payment Date, an amount equal to the sum of (A) the product of (i) [***]% and (ii) the Note Rate with respect to the Class A Notes multiplied by the Outstanding Note Balance of the Class A Notes (before giving effect to principal payments on such Payment Date) and (B) the product of (i) [***]% and (ii) the Note Rate with respect to the Class B Notes multiplied by the Outstanding Note Balance of the Class B Notes (before giving effect to principal payments on such Payment Date); provided, however, that with respect to the Closing Date, the Liquidity Reserve Account Floor Amount will be calculated using the Initial Outstanding Note Balance of the Class A Notes and the Class B Notes, respectively.
"MA SMART Payments" means with respect to a PV System, all payments due by the related PBI Obligor under the MA SMART Program.
"MA SMART Program" means the "Solar Massachusetts Renewable Target (SMART) Program" developed by the Massachusetts Department of Energy Resources.
24
[***] = 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.
"Majority Noteholders" means Noteholders representing not less than 51% of the Outstanding Note Balance of, as the context shall require, a Class of Notes or all Classes of Notes then Outstanding.
"Make Whole Amount" means, with respect to a Voluntary Prepayment of a Class of Notes prior to its Make Whole Determination Date, for such Class of Notes is an amount (not less than zero) equal to (i) for the Class A Notes, (1) using the Reinvestment Yield, the sum of the discounted present values of the scheduled payments of principal and interest remaining until the Class A Make Whole Determination Date for the portion of the Class A Notes being prepaid (assuming prepayment of the remaining principal balance of such prepaid Notes on the Class A Make Whole Determination Date and calculated prior to the application of the related Voluntary Prepayment and assuming a Regular Amortization Period is in effect), minus (2) the amount of principal that will be repaid by such Voluntary Prepayment made on the Class A Notes; and (ii) for the Class B Notes, (1) using the Reinvestment Yield, the sum of the discounted present values of the scheduled payments of principal and interest remaining until the Class B Make Whole Determination Date for the portion of the Class B Notes being prepaid (assuming prepayment of the remaining principal balance of such prepaid Notes on the Class B Make Whole Determination Date and calculated prior to the application of the related Voluntary Prepayment and assuming a Regular Amortization Period is in effect), minus (2) the amount of principal that will be repaid by such Voluntary Prepayment made on the Class B Notes.
"Make Whole Determination Date" means the Class A Make Whole Determination Date and the Class B Make Whole Determination Date, as applicable.
"Management Standard" means the standard by which the Project Company Servicer and Project Company Manager have agreed to provide the Administrative Services or O&M Services, as applicable, under the related Project Company Servicing Agreement or Project Company Management Agreement, which includes, at a particular time, in the exercise of reasonable judgment in light of the facts known at the time a decision was made, those practices, standards, designs, methods, means, techniques, equipment and acts that would require a person to: (a) perform its duties in good faith and as a reasonably prudent manager of a third party operator of residential rooftop solar photovoltaic energy projects, (b) perform its duties in material compliance with the requirements of the applicable Solar Service Agreements and applicable laws, (c) exercise such care, skill and diligence as a reasonably prudent business company of established reputation engaged in the residential rooftop solar photovoltaic energy business would exercise in the conduct of its business and for the advancement or protection of its own interests, and (d) use sufficient and properly trained and skilled personnel, in each case, taking into account all of the costs, expenses and benefits of operation of the PV Systems and/or Energy Storage Systems and their respective Solar Service Agreements.
"Manager Transition Agreement" means that certain manager transition agreement, dated as of the Closing Date, by and among the Transaction Manager, the Transaction Transition Manager, the Issuer and the Indenture Trustee.
25
[***] = 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.
"Managing Member" means, with respect to each Project Company, a Delaware limited liability company that is an indirect wholly-owned subsidiary of the Sponsor that acts as the manager of such Project Company and, as of the Closing Date, acts as the managing member of such Project Company, consisting of: (i) with respect to the TEP IV-D Project Company, Sunnova TEP IV-D Manager; (ii) with respect to the TEP IV-E Project Company, Sunnova TEP IV-E Manager; (iii) with respect to the TEP IV-F Project Company, Sunnova TEP IV-F Manager; (iv) with respect to the TEP IV-G Project Company, Sunnova TEP IV-G Manager; (v) with respect to the TEP V-D Project Company, Sunnova TEP V-D Manager; (vi) with respect to the TEP V-E Project Company, Sunnova TEP V-E Manager; (vii) with respect to the Starlane Owner Project Company, Starlane Owner Managing Member; and (viii) with respect to the Sol Owner Project Company, Sunnova Sol IV Manager.
"Managing Member Distributions" means all distributions to be made by a Project Company to the related Managing Member.
"Managing Member Financing Statements" means a UCC-1 financing statement naming the Indenture Trustee as the secured party and the relevant Managing Member as the debtor.
"Managing Member LLCA" means, with respect to a Managing Member, the limited liability company operating agreement of such Managing Member.
"Managing Member Membership Interest" means all right, title and interest of the member (as defined in the limited liability company agreement of a Managing Member) in the related Managing Member, including, without limitation, (i) the right to manage the business and affairs of such Managing Member, to vote on, consent to or approve matters requiring the vote, consent or approval of the members of such Managing Member and the right to dissolve such Managing Member, (ii) the right to distributions from such Managing Member and the right to allocations of profits or losses, the "limited liability company interest" (as defined in Section 18-101(10) of the Delaware Limited Liability Company Act), and (iii) status as a "member" (as defined in Section 18-101(13) of the Delaware Limited Liability Company Act) of such Managing Member.
"Manufacturer Warranty" means any warranty given by a manufacturer of a PV System or Energy Storage System relating to such PV System or Energy Storage System or, in each case, any part or component thereof.
"Master Purchase Agreement" means a master development, purchase and sale agreement by and between a Partnership Flip Project Company and the Seller pursuant to which the Seller agreed to arrange for the design, procurement and installation of certain PV Systems and Energy Storage Systems for such Partnership Flip Project Company and such Project Company agreed to purchase such PV Systems and/or Energy Storage Systems from the Seller and to take assignment of the associated Solar Service Agreements.
"Material Adverse Effect" means, with respect to any Person, any event or circumstance, individually or in the aggregate, having a material adverse effect on any of the following: (i) the
26
[***] = 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.
business, property, operations or financial condition of such Person or the Trust Estate, (ii) the ability of such Person to perform its respective obligations under the Transaction Documents (including the obligation to make any payments) or (iii) the priority or enforceability of any Lien in favor of the Indenture Trustee.
"Minimum Denomination" means, with respect to any Note, one hundred thousand dollars ($100,000).
"Moonroad Servicer" means MoonRoad Services Group, LLC, a Delaware limited liability company.
"Net Metering Agreement" means, with respect to a PV System, as applicable, a contractual obligation between a utility and a Host Customer (and, in some cases, the owner of the related PV System and, if applicable, Energy Storage System) that allows the Host Customer to offset its regular utility electricity purchases by receiving a bill credit at a specified rate for energy generated by such PV System that is exported to the utility electrical grid and not consumed by the Host
Customer on its property. A Net Metering Agreement may be embedded or acknowledged in an Interconnection Agreement.
"Net Scheduled Payment" means, for any calendar month, an amount equal to (i) the sum of (A) the Scheduled Host Customer Payment for such Solar Asset (except for a Closing Date Delinquent Solar Asset, which shall have a Scheduled Host Customer Payment of $0) during such calendar month and (B) the Scheduled PBI Payment for such Solar Asset during such calendar month, minus (ii) the Allocated Services Provider Fee for such Solar Asset during such calendar month. The Scheduled Host Customer Payments exclude any amounts attributable to sales, use or property taxes to be collected from Host Customers.
"New Home Lease Agreement" means a Lease Agreement that is a New Home Solar Service Agreement.
"New Home Solar Service Agreement" means a Solar Service Agreement originated in connection with the construction of a new single-family home, duplex or triplex, townhome, condo or manufactured or modular home that is an improvement to real property.
"New York UCC" shall have the meaning set forth in Section 5.02(g)(ii)(F) of the Indenture.
"Non-Advanced Solar Asset" means a Solar Asset that does not meet one or more of the criteria required to be an Eligible Solar Asset as of the date the Depositor makes the representation with respect thereto. For purposes of calculating the Liquidated Damages Amount and Repurchase Price, each Non-Advanced Solar Asset will be deemed to have a Securitization Share of DSAB and Discounted Solar Asset Balance of $0.
27
[***] = 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.
"Non-Sequential Interest Amortization Period" means any period in which a Sequential Interest Amortization Period is not in effect.
"Non-Tax Equity Project Company" means, each Wholly-Owned Project Company and each Partnership Flip Project Company after the related Managing Member has acquired the membership interests of the Tax Equity Investor Member after exercise of the Purchase Option, the TEP V-E Withdrawal Right, the TEP IV-G Right of First Offer, or otherwise, as applicable; provided that the term "Non-Tax Equity Project Company" as used in the Contribution Agreement shall not include the Starlane Owner Project Company.
"Note" or "Notes" means, collectively, the 4.95% Solar Asset Backed Notes, Series 20221 and the 6.35% Solar Asset Backed Notes, Series 2022-1, issued pursuant to the Indenture.
"Note Depository Agreement" means the letter of representations dated June 21, 2022, by the Issuer to DTC, as the initial Securities Depository, relating to the Book-Entry Notes.
"Note Interest" means (i) with respect to the Class A Notes and any Payment Date, an amount equal to the sum of (a) interest accrued during the related Interest Accrual Period at the related Note Rate on the Outstanding Note Balance of the Class A Notes immediately prior to such Payment Date and (b) the amount of unpaid Note Interest for the Class A Notes from prior Payment Dates plus, to the extent permitted by law, interest thereon at the related Note Rate. and (ii) with respect to the Class B Notes and (a) any Payment Date occurring during a Non-Sequential Interest Amortization Period or occurring during a Sequential Interest Amortization Period when the Class A Notes are not Outstanding, an amount equal to the sum of (1) interest accrued during the related Interest Accrual Period at the related Note Rate on the Outstanding Note Balance of the Class B Notes immediately prior to such Payment Date and (2) the amount of unpaid Note Interest for the Class B Notes from prior Payment Dates plus, to the extent permitted by law, interest thereon at the related Note Rate, and (b) any Payment Date occurring during a Sequential Interest Amortization Period when the Class A Notes are Outstanding, an amount equal to zero.
"Note Owner" means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Securities Depository or on the books of a Person maintaining an account with such Securities Depository (directly as a Securities Depository Participant or as an indirect participant, in each case in accordance with the rules of such Securities Depository) or the Person who is the beneficial owner of such Book-Entry Note, as reflected in the Note Register in accordance with Section 2.07 of the Indenture.
"Note Purchase Agreement" means that certain note purchase agreement dated June 17, 2022 among the Issuer, the Depositor, Sunnova Energy and GoodFinch SPV III NPL, LLC, as purchaser.
28
[***] = 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.
"Note Purchase and Placement Agency Agreement" means that certain note purchase and placement agency agreement dated June 17, 2022 among the Issuer, the Depositor, Sunnova Energy, the Initial Purchaser and the Placement Agent.
"Note Rate" means for the Class A Notes and the Class B Notes, an annual rate of 4.95% and 6.35%, respectively.
"Note Register" and "Note Registrar" have the meanings set forth in Section 2.07 of the Indenture.
"Noteholder" means the Person in whose name a Note is registered in the Note Register.
"Noteholder FATCA Information" means information sufficient to eliminate the imposition of, or determine the amount of FATCA Withholding Tax.
"Noteholder Tax Identification Information" means properly completed, duly executed and valid tax certifications (generally, in the case of U.S. federal income tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a "United States person" within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a person that is not a "United States person" within the meaning of Section 7701(a)(30) of the Code).
"Notice of Prepayment" means the notice in the form of Exhibit C to the Indenture. "NRSRO" means a nationally recognized statistical rating organization.
"NRSRO Certification" means a certification by a NRSRO that permits it to access a 17g5 Website.
"O&M Services" means the operations and maintenance services of the PV Systems and/or Energy Storage Systems required to be performed by the Project Company Manager pursuant to the terms of the related Project Company Management Agreement.
"OFAC" has the meaning set forth in Section 3.12(u) of the Indenture.
"Offering Circular" means that certain confidential offering circular dated June 17, 2022 related to the Notes.
"Officer's Certificate" means a certificate signed by an Authorized Officer or a Responsible Officer, as the case may be.
29
[***] = 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.
"Opinion of Counsel" means a written opinion of counsel who may be outside counsel for the Issuer or the Indenture Trustee or other counsel and who shall be reasonably satisfactory to the Indenture Trustee, which shall comply with any applicable requirements of Section 12.02 of the Indenture and which shall be in form and substance satisfactory to the Indenture Trustee.
"Ordinary Course of Business" means the ordinary conduct of business consistent with custom and practice for, as the context may require, the rooftop and ground mounted solar businesses (including with respect to quantity and frequency) of the Issuer and its Affiliates.
"Original Managing Member Owner" means, with respect to (i) the Managing Member of a Partnership Flip Project Company, Sunnova TEP Holdings, LLC, (ii) the Managing Member of the Starlane Owner Project Company, Sunnova TEP Resources, LLC, and (iii) the Sol Owner Project Company, Sunnova Intermediate Holdings, each, a Delaware limited liability company and a wholly-owned, direct or indirect subsidiary of Sunnova Energy.
"Originator" means Sunnova Energy.
"Outstanding" means, as of any date of determination, all Notes theretofore authenticated and delivered under the Indenture except:
(i)Notes theretofore canceled by the Note Registrar or delivered to the Note Registrar for cancellation;
(ii)Notes or portions thereof for whose payment money in the necessary amount in redemption thereof has been theretofore deposited with the Indenture Trustee in trust for the Holders of such Notes;
(iii)Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to the Indenture; and
(iv) Notes alleged to have been destroyed, lost or stolen for which replacement
Notes have been issued as provided for in Section 2.09 of the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a bona fide purchaser;
provided, however, that in determining whether the Noteholders of the requisite percentage of the Outstanding Note Balance have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by Sunnova Energy, the Issuer or any Affiliate thereof shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, or waiver, only Notes which the Indenture Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be
30
[***] = 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.
regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee, in its sole discretion, the pledgee's right so to act with respect to such Notes and that the pledgee is not Sunnova Energy, the Issuer or an Affiliate thereof.
"Outstanding Note Balance" means, with respect to any Class of Notes, as of any date of determination, the Initial Outstanding Note Balance of such Class of Notes, less the sum of all scheduled and unscheduled note principal payments (including any portion of Voluntary Prepayments attributable to principal payments) actually distributed to the Noteholders of such Class of Notes on or prior to such date.
"Ownership Interest" means, with respect to any Note, any ownership interest in such Note, including any interest in such Note as the Noteholder thereof and any other interest therein, whether direct or indirect, legal or beneficial.
"Partnership Flip Project Company Account Control Agreement" means, with respect to each Partnership Flip Transaction, an account control agreement of the related Partnership Flip Project Company in which the related Tax Equity Investor Member’s capital contributions are deposited (other than with respect to the TEP IV-F Project Company and TEP V-D Project Company).
"Partnership Flip Project Company" means, each of Sunnova TEP IV-D Project Company, TEP IV-E Project Company, TEP IV-F Project Company, TEP IV-G Project Company, TEP V-D Project Company and TEP V-E Project Company, each a Delaware limited liability company that owns PV Systems and/or Energy Storage Systems, related Solar Service Agreements and other related Solar Assets.
"Partnership Flip Project Company Guaranty" means, with respect to each Partnership Flip Transaction, a guaranty issued by the Tax Equity Project Company Guarantor to the related Tax Equity Investor Member.
"Partnership Flip Project Company LLCA" means, with respect to a Partnership Flip Project Company, the limited liability company operating agreement of such Partnership Flip Project Company.
"Partnership Flip Transaction" means, a partnership flip tax equity transaction pursuant to which a Partnership Flip Project Company owns PV Systems and/or Energy Storage Systems, related Solar Service Agreements and other related assets.
"Payment Date" means the 30th day of each January, April, July and October, beginning in July 2022; provided, however, that if any such day is not a Business Day, then the payments due thereon shall be made on the next succeeding Business Day.
31
[***] = 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.
"Payment Facilitation Agreement" means each modification, waiver or amendment agreement (including a replacement Solar Service Agreement) entered into by the Project Company Servicer on behalf of the Issuer relating to a Solar Service Agreement.
"Payment Facilitation Agreement Standard" means a Payment Facilitation Agreement which meets the following criteria: (i) such Payment Facilitation Agreement is entered into for a commercially reasonable purpose in an arm's-length transaction on market terms and in accordance with the Management Standard, and (ii) either (a)(I) in the reasonable judgment of the Project Company Servicer, the Payment Facilitation Agreement is in the best interest of the related Project Company and does not adversely impact the value of such Host Customer Solar Asset relative to the value of such Host Customer Solar Asset had such Payment Facilitation Agreement not been completed, and (II) there is a default under the related Solar Service Agreement or in the judgment of the Project Company Servicer, the Host Customer related to such Host Customer Solar Asset could reasonably be expected to stop making the Host Customer Payments due under the related Solar Service Agreement but for such Payment Facilitation Agreement or (b) in connection with arrangements that the Project Company Servicer (or its affiliates) may enter into with public utilities, independent power producers, regional transmission organizations, energy trading companies, retail energy providers or other entities from time to time, for which such Host Customer Solar Asset is being made available for Grid Services or similar programs (in each case, a "Grid Services Agreement").
"Payment Facilitation Amount" means, with respect to any Host Customer Solar Asset (other than any Non-Advanced Solar Asset or Closing Date Delinquent Solar Asset) for which a Payment Facilitation Agreement has been completed, an amount equal to the excess, if any, of (i) the Securitization Share of DSAB of such Host Customer Solar Asset immediately prior to such Payment Facilitation Agreement being completed (which includes any past due amounts), over (ii) the Securitization Share of DSAB of such Host Customer Solar Asset immediately after completion of such Payment Facilitation Agreement. For the avoidance of doubt, the Scheduled Host Customer Payments to be used in the calculation of clause (ii) will be determined in accordance with the terms of the Payment Facilitation Agreement.
"PBI Documents" means, with respect to a PV System, (i) all applications, forms and other filings required to be submitted to a PBI Obligor in connection with the performance based incentive program maintained by such PBI Obligor and the procurement of PBI Payments, and (ii) all approvals, agreements and other writings evidencing (a) that all conditions to the payment of PBI Payments by the PBI Obligor have been met, (b) that the PBI Obligor is obligated to pay PBI Payments, and (c) the rate and timing of such PBI Payments.
"PBI Obligor" means a utility or Governmental Authority that maintains or administers a renewable energy program (including the MA SMART Program) designed to incentivize the installation of PV Systems and/or Energy Storage Systems and use of solar generated electricity that has approved and is obligated to make PBI Payments to the owner of the related PV System and/or Energy Storage System.
32
[***] = 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.
"PBI Payments" means, with respect to a PV System and the related PBI Documents, all payments due by the related PBI Obligor under or in respect of such PBI Documents (including MA SMART Payments); provided that PBI Payments do not include Rebates or SRECs or amounts received, if any, in respect of SRECs (including SREC Proceeds).
"Perfection UCCs" means, with respect to the Conveyed Property, the Sol Owner Conveyed Property, the Trust Estate and the assets pledged pursuant to the Pledge and Security Agreement, (i) the date-stamped copy of the filed Sunnova Intermediate Holdings Financing Statement, Sunnova Sol IV Holdings Financing Statement and Depositor Financing Statement covering the Conveyed Property, (ii) the date-stamped copy of the filed Sunnova Intermediate Holdings Solar Asset Financing Statement and the Sol Owner Managing Member Solar Asset Financing Statement covering the Sol Owner Conveyed Property, (iii) the date-stamped copy of the filed Issuer Financing Statement covering the Trust Estate, (iv) the date-stamped copy of the filed Sol Owner Financing Statement covering all assets of the Sol Owner Project Company, (v) the date-stamped copy of the filed Starlane Owner Financing Statement covering all assets of the Starlane Owner Project Company, (vi) the date-stamped copy of each filed Managing Member Financing Statement covering the assets of such Managing Member pledged under the Pledge and Security Agreement, and (vii) the date-stamped copy of the filed Termination Statements releasing the Liens held by creditors of Sunnova Energy, its Affiliates or any other Person (other than as expressly contemplated by the Transaction Documents) covering the Conveyed Property and the Sol Owner Conveyed Property, or, in the case of this clause (viii) above, a copy of search results performed and certified by a national search company indicating that such Termination Statements have been filed in the UCC filing offices of the States in which the Financing Statements being terminated were originally filed.
"Performance Guarantor" means Sunnova Energy.
"Performance Guaranty" means the performance guaranty, dated as of the Closing Date, made by the Performance Guarantor in favor of the Issuer and the Indenture Trustee.
"Permits" means, with respect to any PV System or Energy Storage System, the applicable permits, franchises, leases, orders, licenses, notices, certifications, approvals, exemptions, qualifications, rights or authorizations from or registration, notice or filing with any Governmental Authority required to operate such PV System or Energy Storage System.
"Permitted Liens" means (i) any lien for taxes, assessments and governmental charges or levies not yet due and payable or which are being contested in good faith by appropriate proceedings, (ii) any other lien or encumbrance arising under or permitted by the Transaction Documents, (iii) to the extent a PV System or Energy Storage System constitutes a fixture, any conflicting interest of an encumbrancer or owner of the real property that has or would have priority over the applicable UCC Fixture Filing (or, in Guam, its jurisdictional equivalent) and (iv) with respect to Solar Assets leased by the Starlane Owner Project Company, the interest of the Starlane Lessor therein.
33
[***] = 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.
"Person" means any individual, corporation, partnership, joint venture, association, limited liability company, limited liability partnership, joint stock company, trust (including any beneficiary thereof), unincorporated organization or Governmental Authority.
"Placed Notes" means certain Class B Notes sold directly by the Issuer to certain institutional accredited investors (within the meaning of Rule 501(a)(1), (2), (3), (7) or (9) of the Securities Act) pursuant to the Note Purchase Agreement.
"Placement Agent" means Credit Suisse Securities (USA) LLC and its successors and assigns, in its capacity as placement agent under the Note Purchase and Placement Agency Agreement.
"Pledge and Security Agreement" means the pledge and security agreement, dated as of the Closing Date, by each Managing Member, the Sol Owner Project Company, the Starlane Owner Project Company and each other Non-Tax Equity Project Company that becomes a party thereto in accordance with its terms, in favor of the Indenture Trustee.
"Post-ARD Additional Interest Rate" means, for a Class of Notes, an annual rate determined by the Transaction Manager to be the greater of (i) [***]%; and (ii) the amount, if any, by which the sum of the following exceeds the related Note Rate: (A) the yield to maturity (adjusted to a "mortgage equivalent basis" pursuant to the standards and practices of the Securities Industry and Financial Markets Association) on the Anticipated Repayment Date of the United States Treasury Security having a term closest to ten (10) years, plus (B) [***]%, plus (C) the related Post-ARD Spread.
"Post-ARD Additional Note Interest" has the meaning set forth in Section 2.03(c) of the Indenture.
"Post-ARD Spread" means for the Class A Notes and the Class B Notes, [***]% and [***]%, respectively.
"Post-Closing Date Certification" has the meaning set forth in Section 4(b) of the Custodial Agreement.
"Potential Equity Cure Event" has the meaning set forth in Section 5.07(a) of the Indenture.
"Power Purchase Agreement" means an agreement between the owner of the PV System and a Host Customer whereby the Host Customer agrees to purchase electricity produced by such PV System.
"Predecessor Notes" means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 2.09 of the
34
[***] = 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.
Indenture in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed or stolen Note.
"Prepayment Amount" has the meaning set forth in Section 6.01(b) of the Indenture. "Priority of Payments" has the meaning set forth in Section 5.06(a) of the Indenture.
"Proceeding" means any suit in equity, action at law or other judicial or administrative proceeding.
"Production Guaranty" means, with respect to a PV System, an agreement in the form of a production warranty between the Host Customer and Sunnova Energy, that specifies a minimum level of solar energy production, as measured in kWh, for a specified time period. A Production Guaranty stipulates the terms and conditions under which the related Host Customer could be compensated or receive a production credit if the related PV System does not meet the electricity production minimums.
"Project Company" or "Project Companies" means each of the Partnership Flip Project Companies or the Wholly-Owned Project Companies, as applicable.
"Project Company Back-Up Servicer" means GreatAmerica Portfolio Services Group LLC, an Iowa limited liability company.
"Project Company Back-Up Servicing Fee" means the fee owed by the Project Company to the Project Company Back-Up Servicer under the related Project Company Servicing Agreement.
"Project Company Documents" means, (i) with respect to each Partnership Flip Project Company, the related (1) Partnership Flip Project Company LLCA, (2) Master Purchase Agreement, (3) Partnership Flip Project Company Guaranty, (4) Project Company Management Agreement, (5) Project Company Servicing Agreement, (6) Partnership Flip Project Company Account Control Agreement, if applicable, with respect to one or more bank accounts of such Partnership Flip Project Company, (7) transfer documentation among the Sponsor, one or more affiliates of the Sponsor and the Seller and between the Seller and such Project Company, (8) Solar Service Agreements, and (9) Tax Loss Insurance Policy; (ii) with respect to the Starlane Owner Project Company, the related (1) Project Company LLCA, (2) Project Company Management Agreement, (3) Project Company Servicing Agreement, (4) Starlane Master Lease, (5) Starlane Master Lease Supplement, (6) Starlane Master Lease Side Letter, (7) Starlane SNDA, (8) Starlane Servicing Agreements Side Letter, (9) Starlane Tenant Guaranty, (10) the Starlane Lessor Guaranty, and (11) Starlane Owner Project Company Control Agreements; and (iii) with respect to the Sol Owner Project Company, the related (1) Project Company LLCA, (2) Project Company Management Agreement, (3) Project Company Servicing Agreement, and (4) Sol Owner Project Company Control Agreement.
35
[***] = 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.
"Project Company Expenses" means, except to the extent payable by the Project Company Manager or Project Company Servicer and not reimbursable by a Project Company pursuant to a Project Company Management Agreement or Project Company Servicing Agreement, all expenses incurred for the operation of any Project Company or the PV Systems and/or Energy Storage Systems and any reserves that, in the reasonable judgment of the related Managing Member, are necessary or appropriate for payment of such expenses, including but not limited to (i) to the extent not reimbursed from the Supplemental Reserve Account, the amount payable in respect of any invoice received under the related Project Company Management Agreement or Project Company Servicing Agreement (other than in respect of the fees described in clauses (iii) and (iv) below), (ii) expenses and/or premiums related to insurance required pursuant to the related Project Company Documents, (iii) the Project Company Manager Fees and the fees and expenses under the related Project Company Management Agreement or those of any replacement manager, (iv) the Project Company Servicer Fees, Project Company Back-Up Servicing Fees, any Project Company Transition Manager Fees and the fees and expenses under the related Project Company Servicing Agreement or those of any replacement operator, (v) costs due to tax preparation or audit services for such Project Company and any other expense incurred for any taxes or filing fees of such Project Company and (vi) funding of any operation and maintenance reserve accounts in accordance with the related Project Company Documents. In no event shall Tax Equity Investor Distributions be deemed to be Project Company Expenses.
"Project Company LLCA" means, the Sol Owner Project Company LLCA, the Starlane Owner Project Company LLCA or a Partnership Flip Project Company LLCA, as applicable.
"Project Company Management Agreement" means, with respect to each Project Company, the management agreement that such Project Company has entered into with the Project Company Manager, pursuant to which such affiliate is responsible, primarily at its cost and expense, for performing specified O&M Services.
"Project Company Manager" means Sunnova Management.
"Project Company Manager Fee" means, the fee owed by each Project Company to the Project Company Manager for O&M Services, and is payable in accordance with the related Project Company Management Agreement.
"Project Company Members" means, with respect to (i) each Partnership Flip Project Company, the related Managing Member and the Tax Equity Investor Member, and (ii) each Wholly-Owned Project Company, the related Managing Member.
"Project Company Reduction Amount" means for any Payment Date, in connection with any Project Company with respect to which any Project Company Reduction Event has occurred during the related Collection Period, the product of (i) 85% and (ii) the sum of the Securitization Share of DSAB of all Solar Assets owned by such Project Company (other than the Non-Advanced Solar Assets or Closing Date Delinquent Solar Assets), measured as of the last day of the Collection Period during which such event occurred; provided that if the related Project
36
[***] = 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.
Company Reduction Event has been cured or waived in accordance with the Indenture, then such Project Company Reduction Amount (or any unpaid portion thereof) shall thereupon be reduced to zero dollars ($0).
"Project Company Reduction Event" means, with respect to any Project Company: (i) if any of several actions relating to the insolvency of such Project Company or the related Managing Member shall have occurred, including the appointment of a conservator or receiver or liquidator relating to such Project Company or such Managing Member or all or substantially all of their respective property which is consented to or remains in effect; (ii) if the Tax Equity Investor Member shall have removed the related Managing Member as managing member pursuant to the related Project Company LLCA, provided that such Project Company Reduction Event shall be deemed cured if a replacement managing member of such Project Company is appointed pursuant to the related Project Company LLCA and approved by the Majority Noteholders of the Controlling Class; (iii) if such Project Company or the related Managing Member shall become taxable as an association (or a publicly traded partnership taxable as a corporation) for U.S. federal income tax purposes; (iv) there shall remain in force, undischarged, unsatisfied, and unstayed for more than 30 consecutive days, any final non-appealable judgment in the amount of $100,000 or more not covered by insurance against such Project Company or the related Managing Member; or (v) with respect to the Starlane Owner Project Company, the Starlane Lease is terminated (other than as a result of its expiration at the end of the Starlane Master Lease Term).
"Project Company Servicer" means Sunnova Management.
"Project Company Servicing Agreement" means, with respect to each Project Company, the servicing agreement that such Project Company has entered into with the related Project Company Servicer and Project Company Back-Up Servicer (and, with respect to the TEP IV-D Project Company, the Project Company Transition Manager), pursuant to which such affiliate is responsible, primarily at its cost and expense, for performing specified Administrative Services.
"Project Company Successor Servicer" means any Person that succeeds the Project Company Servicer in such capacity under and pursuant to the related Project Company Servicing Agreement.
"Project Company Servicer Fee" means, the fee owed by each Project Company to the related Project Company Servicer for Administrative Services, and is payable in accordance with the related Project Company Servicing Agreement.
"Project Company Transition Manager" means, in the case of TEP IV-D Project Company, GreatAmerica Portfolio Services Group LLC, an Iowa limited liability company.
"Project Company Transition Manager Fee" means a fee owed by the TEP IV-D Project Company to the Project Company Transition Manager under the related Project Company Servicing Agreement.
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[***] = 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.
"Projected Tax Equity Investor Distributions" for any calendar quarter are the amounts projected to be distributed to the Tax Equity Investor Member based on Scheduled Host Customer Payments, Scheduled PBI Payments and Projected TREC Payments assuming that the Purchase Option (and to the extent applicable, the TEP V-E Withdrawal Right) is not exercised and no Limited Step-up Events occur.
"Projected TREC Payments" for any calendar month and a TREC, the TREC Payments expected to be received from the TREC Obligor during each calendar month as set forth on Schedule IV to the Indenture.
"PTO" means, with respect to a PV System or Energy Storage System, receipt of a letter or functional equivalent from the connecting utility authorizing such PV System or Energy Storage System, as applicable, to be operated.
"Purchase Option" means, with respect to the terms of each Partnership Flip Project Company LLCA (other than for the TEP IV-G Project Company), the option of the related Managing Member to purchase all of the related the Tax Equity Investor Member's membership interest in such Partnership Flip Project Company.
"Purchase Option Period" means the period when a Purchase Option is exercisable pursuant to the related Project Company LLCA.
"Purchase Option Price" means the purchase price payable by the applicable Managing Member upon its exercise of the related Purchase Option, as calculated in accordance with the related Partnership Flip Project Company LLCA.
"PV System" means, a photovoltaic system, including Solar Photovoltaic Panels, Inverters, Racking Systems, wiring and other electrical devices, as applicable, conduits, weatherproof housings, hardware, remote monitoring equipment, connectors, meters, disconnects and over current devices (including any replacement or additional parts included from time to time).
"QIB" means qualified institutional buyer within the meaning of Rule 144A.
"Quarterly Data Tape" means the data tape delivered on or before each Determination Date by the Transaction Manager to the Transaction Transition Manager containing the information set forth on Exhibit A to the Manager Transition Agreement.
"Quarterly Transaction Report" has the meaning set out in Section 4.1 of the Transaction Management Agreement.
"Qualified Service Provider" means an Independent Accountant or other service provider.
"Qualified Service Provider Report" has the meaning set forth in Section 4.3(b) of the Transaction Management Agreement.
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[***] = 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.
"Qualified Substitute Solar Asset" means a Host Customer Solar Asset that meets each of the following criteria as of the related Transfer Date:
(i) qualifies as an Eligible Solar Asset;
(ii)the Host Customers related to the Qualified Substitute Solar Assets transferred to the related Project Company on such Transfer Date have a weighted average FICO score as of the date of origination of the Qualified Substitute Solar Assets (measured on the related Transfer Date) greater than or equal to the weighted average FICO score of the related Host Customers related to the subject Replaced Solar Assets as of the date of origination of the Replaced Solar Assets (measured on the related Transfer Date);
(iii)the Qualified Substitute Solar Assets transferred to the related Project Company on such Transfer Date shall not cause the percentage concentration of all Solar Assets owned or leased by the Issuer (through its subsidiary Project Companies) on such Transfer Date (including for the avoidance of doubt, the Qualified Substitute Solar Assets transferred to the Issuer on such Transfer Date) in any one state or territory to exceed the percentage concentration of the Initial Solar Assets on the Closing Date in such state or territory by more than [***]%;
(v)the Qualified Substitute Solar Assets transferred to the related Project Company on such Transfer Date shall not cause the weighted average PV System size (kW DC) of all Solar Assets owned or leased by the Issuer (through its subsidiary Project Companies) on such Transfer Date (including, for the avoidance of doubt, the Qualified Substitute Solar Assets transferred to the applicable Project Company on such Transfer Date) to deviate from the weighted average PV System size (kW DC) of the Solar Assets on the Closing Date by more than [***]%; and
(vi)the Qualified Substitute Solar Assets transferred to the related Project Company on such Transfer Date have semi-annual cash flows measured over the course of a Collection Period that are greater than or equal to such semi-annual cash flows related to the subject Replaced Solar Assets.
"Racking System" means, with respect to a PV System, the hardware required to mount and securely fasten a Solar Photovoltaic Panel onto the Host Customer site where the PV System is located.
"Rated Final Maturity" means the Payment Date occurring in April 2057. "Rating Agency" means KBRA.
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[***] = 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.
"Rating Agency Confirmation" means with respect to any request, action, event or circumstance a confirmation from the Rating Agency that the fulfillment of such requests or the taking of such action or the occurrence of such event of circumstance will not itself result in (i) a withdrawal of the credit rating on a Class of Notes by the Rating Agency or (ii) the assignment of a credit rating on a Class of Notes by the Rating Agency below the lower of (a) the then-current credit rating on such Class of Notes or (b) the initial credit rating assigned to such Class of Notes by the Rating Agency (in each case, without negative implications).
"Real Property Rights" means all real property rights contained in the Solar Service Agreement.
"Rebate" means any rebate by a PBI Obligor, electric distribution company, or state or local governmental authority or quasi-governmental agency as an inducement to install or use a PV System, paid upon such PV System being placed in service.
"Record Date" means, with respect to any Payment Date or Voluntary Prepayment Date, (i) for Notes in book-entry form, the close of business on the Business Day immediately preceding such Payment Date or Voluntary Prepayment Date, and (ii) for Definitive Notes the close of business on the last Business Day of the calendar month immediately preceding the calendar month in which such Payment Date or Voluntary Prepayment Date occurs.
"Regular Amortization Period" means any period other than an Early Amortization Period or a Sequential Interest Amortization Period.
"Regulation S" means Regulation S, as amended, promulgated under the Securities Act.
"Regulation S Global Note" means the Regulation S Temporary Global Note or the Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means the permanent global note, evidencing Notes, in the form of the Note attached to the Indenture as Exhibit A, that is deposited with and registered in the name of the Securities Depository or its nominee, representing the Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Note" means a single temporary global note, evidencing Notes, in the form of the Note attached to the Indenture as Exhibit A, that is deposited with and registered in the name of the Securities Depository or its nominee, representing the Notes sold in reliance on Regulation S.
"Reinvestment Yield" means, with respect to any Class of Notes, the yield on United States Treasury securities having a remaining term to maturity that is closest to the weighted average remaining life of such Class of Notes (calculated to the applicable Make Whole Determination Date) plus 0.50%. Should more than one United States Treasury security have a term to maturity
40
[***] = 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.
that is closest to the weighted average life of such Class of Notes, then the yield of the United States Treasury security quoted closest to par will be used in the calculation.
"Replaced Solar Asset" means a Defective Solar Asset, a Defaulted Solar Asset or a Terminated Host Customer Solar Asset for which the Depositor has substituted a Qualified Substitute Solar Asset pursuant to the Contribution Agreement.
"Repurchase Price" means, for a Solar Asset and as of any date of determination, an amount equal to the Securitization Share of DSAB of such Solar Asset immediately prior to its repurchase. The Liquidated Damages Amount, if any, previously paid pursuant to the Contribution Agreement with respect to any Defective Solar Asset shall be deemed to satisfy the Repurchase Price with respect to such Solar Asset in full. For the avoidance of doubt the Repurchase Price will not be less than zero ($0).
"Replacement Transaction Manager" means any Person appointed to replace the Transaction Manager and to assume the obligations of Transaction Manager under the Transaction Management Agreement (other than such obligations with respect to the Tax Loss Insurance Policies to the extent such Person does not agree to assume such obligations).
"Responsible Officer" means when used with respect to the Indenture Trustee and Transaction Transition Manager, any President, Vice President, Assistant Vice President, Assistant Secretary, Assistant Treasurer or Corporate Trust Officer, or any other officer in the Corporate Trust Office customarily performing functions similar to those performed by any of the above designated officers, in each case having direct responsibility for the administration of the Indenture. When used with respect to any Person other than the Indenture Trustee or the Transaction Transition Manager that is not an individual, the President, Chief Executive Officer, Chief Financial Officer, Chief Marketing Officer, Chief Strategy Officer, Treasurer, any Vice-President, Assistant Vice-President or the Controller of such Person, or any other officer or employee having similar functions.
"Rule 17g-5" means Rule 17g-5 under the Exchange Act.
"Rule 144A" means the rule designated as "Rule 144A" promulgated by the Securities and Exchange Commission under the Securities Act.
"Rule 144A Global Note" means the permanent global note, evidencing Notes, in the form of the Note attached to the Indenture as Exhibit A, that is deposited with and registered in the name of the Securities Depository or its nominee, representing (i) the Notes sold in reliance on Rule 144A and (ii) the Placed Notes.
"S&P" means S&P Global Ratings, a business unit of Standard & Poor's Financial Services, LLC.
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[***] = 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 of Solar Assets" means the schedule of Solar Assets related to PV Systems and, if applicable, Energy Storage Systems owned (or, in the case of the Starlane PV Systems, leased) by the Project Companies, as such schedule may be amended from time to time (in accordance with the terms of the Transaction Documents).
"Scheduled Host Customer Payments" means for each Host Customer Solar Asset, the Host Customer Payments expected to be received from the related Host Customer during each calendar month in respect of the initial term of the related Solar Service Agreement, as set forth on Schedule II to the Indenture, as the same may be adjusted by the Transaction Manager to reflect that such Host Customer Solar Asset has become a Defaulted Solar Asset, a Terminated Host Customer Solar Asset, a Defective Solar Asset, a Replaced Solar Asset or if a Payment Facilitation Agreement has been executed in connection with such Host Customer Solar Asset. The Scheduled Host Customer Payments exclude any amounts attributable to sales, use or property taxes to be collected from Host Customers.
"Scheduled Note Principal Payment" for a Class of Notes and a Payment Date means an amount equal to the sum of: (i) any unpaid portion of the Scheduled Note Principal Payments from prior Payment Dates, and (ii) the product of (A) (1) the Scheduled Outstanding Note Balance of such Class of Notes for the prior Payment Date minus (2) the Scheduled Outstanding Note Balance of such Class of Notes for such Payment Date; and; and (B) a fraction (1) the numerator of which is equal to the Outstanding Note Balance of such Class of Notes (without taking into account any distributions to be made on such Payment Date) minus the unpaid portion of the Scheduled Note Principal Payments of such Class of Notes from prior Payment Dates and (2) the denominator of which is the Scheduled Outstanding Note Balance of such Class of Notes for the prior Payment Date.
"Scheduled Outstanding Note Balance" means for each Payment Date and each Class of Notes, the amount set forth as the Scheduled Outstanding Note Balance on Schedule VI to the Indenture.
"Scheduled PBI Payments" means for each Designated Solar Asset for each calendar month, the payments scheduled to be paid by a PBI Obligor during such calendar month, if any, as set forth on Schedule III to the Indenture, as the same may be adjusted by the Transaction Manager to reflect that such Designated Solar Asset has become a Defaulted Solar Asset, a Terminated Host Customer Solar Asset, a Defective Solar Asset, a Replaced Solar Asset or if a Payment Facilitation Agreement has been executed in connection with such Host Customer Solar Asset.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Depository" means an organization registered as a "Securities Depository" pursuant to Section 17A of the Exchange Act.
42
[***] = 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.
"Securities Depository Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Securities Depository effects book-entry transfers and pledges of securities deposited with the Securities Depository.
"Securitization Share of DSAB" means, with respect to a Solar Asset as of any date of determination, the amount equal to the product of (i) the Discounted Solar Asset Balance of such Solar Asset and (ii) for any Solar Asset (a) owned by a Partnership Flip Project Company, [***]%; and (b) owned or leased by the Starlane Owner Project Company or the Sol Owner Project Company, [***]%.
"SEI" means Sunnova Energy International Inc., a Delaware corporation and sole stockholder of Sunnova Energy.
"Sequential Interest Amortization Period" means the period commencing on any Determination Date where:
(i)prior to the Anticipated Repayment Date, the DSCR is less than or equal to 1.00 for such Determination Date;
(ii)an Event of Default shall have occurred; or
(iii) as a result of the replacement of the Project Company Manager or Project Company
Servicer of any Project Company, the aggregate Project Company Expenses for all of the Project Companies in respect of the related Collection Period are more than 25% greater than what the Project Company Expenses would have been for such Collection Period had the Project Company Manager or Project Company Servicer for any Project Company not been replaced.
A Sequential Interest Amortization Period of the type described in clause (i) above will continue until the next Determination Date on which the DSCR is greater than 1.00. A Sequential Interest Amortization Period of the type described in clause (ii) above will continue until all Events of Default have been cured or waived in accordance with the Indenture. A Sequential Interest Amortization Period of the type described in clause (iii) shall continue until the next Determination Date on which the aggregate Project Company Expenses for all of the Project Companies in respect of the related Collection Period are no longer more than 25% greater than what the Project Company Expenses would have been for such Collection Period had the Project Company Manager or Project Company Servicer for any Project Company not been replaced. Notwithstanding the foregoing, a Sequential Interest Amortization Period may not be cured after the Anticipated Repayment Date. Notwithstanding the foregoing, a Sequential Interest Amortization Period may not be cured after the Anticipated Repayment Date.
"Seller" means Sunnova TEP Developer, LLC, as seller under the Master Purchase Agreement.
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[***] = 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.
"Settlement Statement" has the meaning set forth in the Contribution Agreement.
"Similar Law" has the meaning set forth in Section 2.07(c)(vi) of the Indenture.
"Solar Asset" means the Initial Solar Assets and any Qualified Substitute Solar Assets.
"Solar Asset Management Files" means such files, documents, and computer files (including those documents comprising the Custodian File) necessary for the Transaction Manager to perform the Transaction Management Services.
"Solar Benefits Agreement" means a Lease Agreement pursuant to which Sunnova Energy leases a PV System to the related Host Customer at a fixed monthly rate for the entirety of the term of the lease and which contains a savings tracker pursuant to which Sunnova Energy will pay to the related Host Customer on an annual basis any amount by which the total amount paid under the Lease Agreement and to the local utility is greater than the amount the related Host Customer would have paid if such PV System had not been installed.
"Solar Photovoltaic Panel" means, with respect to a PV System, the necessary hardware component that uses wafers made of silicon, cadmium telluride, or any other suitable material, to generate a direct electrical current (DC) output using energy from the sun's light.
"Solar Service Agreement" means, in respect of a PV System and/or an Energy Storage System, a Lease Agreement or a Power Purchase Agreement entered into with a Host Customer
and all ancillary agreements and documents related thereto, including any related Payment Facilitation Agreements, but excluding any Production Guaranty or Customer Warranty Agreement.
"Sol Owner Project Company" means Sunnova Sol IV Owner, LLC, a Delaware limited liability company.
"Sol Owner Solar Assets" means the Solar Assets to be owned by the Sol Owner Project Company.
"Sol Owner Contribution Agreement" means, the sale and contribution agreement, dated as of the Closing Date, by and among Sunnova Intermediate Holdings, Sol Owner Managing Member and Sol Owner Project Company.
"Sol Owner Financing Statement" means a UCC-1 financing statement naming the Indenture Trustee as the Secured Party and the Sol Owner Project Company as the debtor.
44
[***] = 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.
"Sol Owner Conveyed Property" means the "Conveyed Property" defined in the Sol Owner Contribution Agreement.
"Sol Owner Managing Member" Sunnova Sol IV Manager, LLC, a Delaware limited liability company.
"Sol Owner Managing Member Solar Asset Financing Statement" means a UCC-1 financing statement naming the Sol Owner Project Company as the secured party and Sol Owner Managing Member as debtor.
"Sol Owner Project Company" means Sunnova Sol IV Owner, LLC, a Delaware limited liability company.
"Sol Owner Project Company Control Agreement" means the blocked account control agreement, dated as of the Closing Date, by and among the Sol Owner Project Company, the Indenture Trustee, as secured party, and JPMorgan Chase Bank, N.A., as depositary.
"Sol Owner Project Company LLCA" means the limited liability company operating agreement of the Sol Owner Project Company.
"Sponsor" means Sunnova Energy.
"SREC" means a solar renewable energy certificate representing environmental credits, benefits, emissions reductions, offsets and allowances, howsoever entitled, that are created or otherwise arise from a PV System's generation of electricity, including, but not limited to, a solar renewable energy certificate issued to comply with a state's renewable portfolio standard (including, for the avoidance of doubt, a Solar Renewable Energy Certificate-II issued under New Jersey's Successor Solar Incentive Program). For the avoidance of doubt, SRECs do not include any renewable energy certificates that are the basis for PBI Payments or TREC Payments or to which a PBI Obligor or a TREC Obligor is given title to under a performance-based incentive program.
"SREC Proceeds" means all cash proceeds actually received by the Issuer or a Project Company from the sale of SRECs.
"Starlane Lessor" means Energy Asset Holdco LLC, a Delaware limited liability company.
"Starlane Lessor Guaranty" means the amended and restated guaranty, dated as of June 2, 2022, issued by Lennar to Starlane Owner Project Company.
"Starlane Lease Transaction" means the transaction in which the Starlane Owner Project Company (i) leases certain PV Systems from the Starlane Lessor under the Starlane Master Lease, as supplemented by the Starlane Master Lease Supplement, and (ii) is the assignee of the Starlane
45
[***] = 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.
Lessor of all right, title and interest in, and obligations under, the related Solar Service Agreements.
"Starlane Master Lease " means certain Amended and Restated Master Lease, dated as of June 2, 2022, pursuant to which Starlane Owner Project Company leases PV Systems from Starlane Lessor.
"Starlane Master Lease Side Letter" means the amended and restated side letter to the Starlane Master Lease, dated as of June 2, 2022, among Starlane Owner Project Company, Starlane Lessor and the other parties thereto.
"Starlane Master Lease Supplement" means that certain Lease Supplement No. 1 dated as of November 4, 2021 to the Starlane Master Lease.
"Starlane Owner Financing Statement" means a UCC-1 financing statement naming the Indenture Trustee as the Secured Party and the Starlane Owner Project Company as the debtor.
"Starlane Owner Managing Member" means Starlane Manager, LLC a Delaware limited liability company.
"Starlane Owner Project Company" means Starlane Owner, LLC, a Delaware limited liability company.
"Starlane Owner Project Company Control Agreements" means the Starlane Owner Project Company Legacy Control Agreement (until terminated in accordance with the applicable Transaction Documents) and the Starlane Owner Project Company Continuing Control Agreement.
"Starlane Owner Project Company Continuing Control Agreement" means the blocked account control agreement, dated as of the Closing Date, by and among the Starlane Owner Project Company, the Indenture Trustee, as secured party, and JPMorgan Chase Bank, N.A., as depositary.
"Starlane Owner Project Company Legacy Control Agreement" means the deposit account control agreement, dated as of the Closing Date, by and among the Starlane Owner Project Company, the Indenture Trustee, as secured party, and Wells Fargo Bank, National Association, as depositary.
"Starlane Owner Project Company LLCA" means, the limited liability company operating agreement of the Starlane Owner Project Company.
"Starlane PV System" means a PV System subject to the Starlane Lease Transaction.
46
[***] = 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.
"Starlane Tenant Guarantor" means Sunnova Energy International, Inc., a Delaware corporation.
"Starlane Tenant Guaranty" means the amended and restated guaranty, dated as of June 2, 2022, issued by the Starlane Tenant Guarantor to Starlane Lessor.
"Starlane Servicing Agreement Side Letter" means the amended and restated servicing agreements side letter, dated as of June 2, 2022, between MoonRoad Servicer, Starlane Lessor and Starlane Owner Project Company.
"Starlane SNDA" means a subordination and non-disturbance agreement, dated as of the Closing Date, by and among the Indenture Trustee, the Starlane Owner Project Company, Starlane Lessor, Lennar, LEN X, LLC, the Starlane Tenant Guarantor and MoonRoad Services.
"State" means any one or more of the states comprising the United States and the District of Columbia.
"Subcontractor" means any person to whom the Transaction Manager subcontracts any of its obligations under the Transaction Management Agreement, including the vendors and any person to whom such obligations are further subcontracted of any tier.
"Subsequent Cut-Off Date" means, with respect to any Qualified Substitute Solar Asset, (i) the close of business on the last day of the calendar month immediately preceding the related Transfer Date or (ii) such other date designated by the Transaction Manager.
"Substitution Shortfall Amount" means an amount in cash equal to the amount by which (i) the sum of (a) the Securitization Share of DSAB of the Replaced Solar Asset (measured as if such Solar Asset were not a Defective Solar Asset, Defaulted Solar Asset or Terminated Host Customer Solar Asset, as applicable) and (b) if the Replaced Solar Asset is not transferred from the related Project Company to the Depositor or its affiliates, an amount equal to the product of the Allocated Service Provider Fee attributable to the Replaced Solar Asset and the percentage attributable to such Replaced Solar Asset in the definition of Securitization Share of DSAB exceeds (ii) the Securitization Share of DSAB of the Qualified Substitute Solar Asset as of the related Transfer Date. For the avoidance of doubt the Substitution Shortfall Amount will not be less than zero ($0).
"Sunnova Energy" means Sunnova Energy Corporation, a Delaware corporation.
"Sunnova Entities" means each of Sunnova Energy, Sunnova Management, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Depositor, the Issuer, the Managing Members and the Project Companies.
"Sunnova Intermediate Holdings" means Sunnova Intermediate Holdings, LLC, a Delaware Limited liability company.
47
[***] = 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.
"Sunnova Intermediate Holdings Financing Statement" means a UCC-1 financing statement naming Sunnova Sol IV Holdings as the secured party and Sunnova Intermediate Holdings as the debtor.
"Sunnova Intermediate Holdings Solar Asset Financing Statement" means a UCC-1 financing statement naming Sol Owner Managing Member as the secured party and Sunnova Intermediate Holdings as the debtor.
"Sunnova Management" means Sunnova TE Management, LLC, a Delaware limited liability company.
"Sunnova Sol IV Holdings" means Sunnova Sol IV Holdings, LLC, a Delaware limited liability company.
"Sunnova Sol IV Holdings Financing Statement" means a UCC-1 financing statement naming the Depositor as the secured party and Sunnova Sol IV Holdings as the debtor.
"Sunnova TEP IV-D Manager" means Sunnova TEP IV-D Manager, LLC, a Delaware limited liability company.
"Sunnova TEP IV-E Manager" means Sunnova TEP IV-E Manager, LLC, a Delaware limited liability company.
"Sunnova TEP IV-F Manager" means Sunnova TEP IV-F Manager, LLC, a Delaware limited liability company.
"Sunnova TEP IV-G Manager" means Sunnova TEP IV-G Manager, LLC, a Delaware limited liability company.
"Sunnova TEP V-D Manager" means Sunnova TEP V-D Manager, LLC, a Delaware limited liability company.
"Sunnova TEP V-E Manager" means Sunnova TEP V-E Manager, LLC, a Delaware limited liability company.
"Sunnova Sol IV Manager" means Sunnova Sol IV Manager, LLC, a Delaware limited liability company.
"SunStreet" means SunStreet Energy Group, LLC, a Delaware limited liability company.
"Super-Majority Noteholders" means Noteholders representing not less than 66-2/3% of the Outstanding Note Balance of, as the context shall require, a Class of Notes or all Classes of Notes then Outstanding.
48
[***] = 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.
"Supplemental Reserve Account" has the meaning set forth in Section 5.01(a) of the Indenture.
"Supplemental Reserve Account Closing Date Deposit" means an amount equal to $[***].
"Supplemental Reserve Account Deposit" means, on each Payment Date after the July 2027 Payment Date, an amount equal to the sum of (i) any Supplemental Reserve Account Deposit amounts from prior periods not deposited into the Supplemental Reserve Account and (ii) the lesser of (a) the sum of (x) the product of (A) one-fourth of $[***] and (B) the aggregate DC nameplate capacity (measured in kW) of all the PV Systems owned (or, in the case of Starlane PV Systems, leased) by the Project Companies (excluding Defaulted Solar Assets that are not operational and not in the process of being removed or redeployed) on the related Determination Date and (y) the product of (A) one-fourth of $[***] and (B) the aggregate storage capacity (measured in kWh) of the batteries included in Energy Storage Systems owned or leased by the Project Companies (excluding Defaulted Solar Assets that are not operational and not in the process of being removed or redeployed) on the related Determination Date that have related Solar Service Agreements with remaining terms that exceed the remaining terms of the related manufacturer warranty for such Energy Storage System and (b) (i) the Supplemental Account Required Amount as of the related Determination Date, minus (ii) the sum of the amount on deposit in the Supplemental Reserve Account as of the related Determination Date, and the amount, if any, being deposited into the Supplemental Reserve Account on such Payment Date pursuant to clause (i). Notwithstanding the foregoing, the Supplemental Reserve Account Deposit will be zero for any Payment Date on which the sum of Available Funds is greater than or equal to the sum of (i) the payments and distributions required under clauses (i) through (v) in the Priority of Payments, (ii) the Aggregate Outstanding Note Balance as of such Payment Date prior to any distributions made on such Payment Date and (iii) all accrued and unpaid interest on the Notes (including any Class B Deferred Interest, Post-ARD Additional Note Interest or Deferred Post-ARD Additional Note Interest).
"Supplemental Reserve Required Amount" means, on each Payment Date, an amount equal to the sum of (i) the product of (a) $[***] and (b) the aggregate DC nameplate capacity (measured in kW) of all PV Systems owned (or, in the case of Starlane PV Systems, leased) by the Project Companies (excluding Defaulted Solar Assets that are not operational and not in the process of being removed or redeployed) on the related Determination Date that have related Solar Service Agreements with remaining terms that exceed the remaining terms of the related Manufacturer Warranty for the Inverter associated with such PV System, (ii) the product of (a) $300 and (b) the aggregate storage capacity (measured in kWh) of the batteries included in Energy Storage Systems owned or leased by the Project Companies (excluding Defaulted Solar Assets that are not operational and not in the process of being removed or redeployed) on the related Determination Date that have related Solar Service Agreements with remaining terms that exceed the remaining terms of the related manufacturer warranty for such Energy Storage System and (iii) the deductibles under the Tax Loss Insurance Policies.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means:
49
[***] = 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.
(i)any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, unclaimed property or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and
(ii)any liability for the payment of amounts with respect to payment of a type described in clause (i), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement, but excluding any liability arising under any commercial agreement the primary purpose of which does not relate to Taxes.
"Tax Equity Investor Distributions" means the aggregate distributions made by the Partnership Flip Project Companies to the Tax Equity Investor Members in respect of the related Collection Period, including any distribution of cash to the applicable Tax Equity Investor Member in respect of the related Collection Period as a result of the occurrence of a Limited Step-up Event; provided that distributions that are scheduled to be paid to the Tax Equity Investor Members in respect of any Collection Period shall be treated as having been paid during such Collection Period so long as such distributions are made no later than the related Determination Date.
"Tax Equity Investor Member" means with respect to the Partnership Flip Project Companies, the member to whom substantially all of the tax benefits of ownership of the related PV Systems and Energy Storage Systems and a portion of cash are allocated.
"Tax Equity Project Company Guarantor" means Sunnova Energy, under the relevant Tax Equity Project Company Guaranty.
"Tax Loss Insurer" means a certain syndicate of Lloyd's, London.
"Tax Loss Insurance Policy" means a tax loss insurance policy issued by a certain syndicate of Lloyd's, London, with respect to each Partnership Flip Project Company.
"Tax Opinion" means an Opinion of Counsel to the effect that an amendment or modification of the Indenture will not materially adversely affect the federal income tax characterization of any Note, or adversely affect the federal tax classification status of the Issuer.
"Tax Return" means any return, report or similar statement required to be filed with respect to any Taxes (including attached schedules), including any information return, claim for refund, amended return or declaration of estimated Tax.
50
[***] = 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.
"TEP IV-D Project Company" means Sunnova TEP IV-D, LLC, a Delaware limited liability project company.
"TEP IV-E Project Company" means Sunnova TEP IV-E, LLC, a Delaware limited liability project company.
"TEP IV-F Project Company" means Sunnova TEP IV-F, LLC, a Delaware limited liability project company.
"TEP IV-G Project Company" means Sunnova TEP IV-G, LLC, a Delaware limited liability project company.
"TEP IV-G Right of First Offer" means, in the event any member of the TEP IV-G Project Company desires to transfer (excluding transfers in connection with a foreclosure or in lieu of such foreclosure, but including any subsequent transfer) any of its membership interests in the TEP IV-G Project Company to any permitted third party, the requirement that such transferring member offer such membership interests to the other members of the TEP IV-G Project Company in accordance with its Project Company LLCA.
"TEP V-D Project Company" means Sunnova TEP V-D, LLC, a Delaware limited liability project company.
"TEP V-E Project Company" means Sunnova TEP V-E, LLC, a Delaware limited liability project company.
"TEP V-E Withdrawal Amount" means, with respect to the TEP V-E Withdrawal Right, the amount required to be paid by Sunnova TEP V-D Manager to the related Tax Equity Investor Member upon its exercise of the TEP V-E Withdrawal Right.
"TEP V-E Withdrawal Right" means the right, pursuant to the terms of the Project Company LLCA of the TEP V-E Project Company, the Tax Equity Investor Member has to resign as a member of the TEP E-V Project Company at any time during the 180-day period commencing after the last day of the related Purchase Option Period by giving irrevocable written notice of such exercise to the related Managing Member.
"Terminated Host Customer Solar Asset" means a Host Customer Solar Asset for which the related PV System and, if applicable, Energy Storage System (i) has experienced an Event of Loss and is not repaired, restored, replaced or rebuilt to substantially the same condition as it existed immediately prior to the Event of Loss within 180 days of such Event of Loss or (ii) is deemed to be a Terminated Host Customer Solar Asset by the Transaction Manager in accordance with the Transaction Management Agreement.
"Termination Date" means the date on which the Indenture Trustee shall have received payment and performance of all Issuer Secured Obligations.
51
[***] = 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.
"Termination Statement" has the meaning set forth in Section 2.12(i) of the Indenture.
"Total Debt Service" means, for a Payment Date, an amount equal to the sum of (i) the Note Interest with respect to the Class A Notes plus the Note Interest with respect to the Class B Notes (in all cases, assuming a Non-Sequential Interest Amortization Period for such Payment Date) and (ii) the aggregate Scheduled Note Principal Payment for the Class A Notes and the Class B Notes, in each case for such Payment Date.
"Transaction Documents" means, collectively, the Indenture, the Contribution Agreement, the Sol Owner Contribution Agreement, the Performance Guaranty, the Transaction Management Agreement, the Manager Transition Agreement, the Pledge and Security Agreement, the Note Purchase and Placement Agency Agreement, the Note Purchase Agreement, the Custodial Agreement, the Acknowledgments, the Note Depository Agreement, the Starlane SNDA and the other transaction documents identified therein.
"Transaction Management Agreement" means that certain Transaction Management Agreement, dated as of the Closing Date, between the Transaction Manager and the Issuer.
"Transaction Management Services" has the meaning set forth in Section 2.1(a) of the Transaction Management Agreement.
"Transaction Management Standard" has the meaning set forth in Section 2.1(a) of the Transaction Management Agreement.
"Transaction Manager" means Sunnova Management as the initial Transaction Manager or any other Replacement Transaction Manager acting as Transaction Manager pursuant to the Transaction Management Agreement. Unless the context otherwise requires, "Transaction Manager" also refers to any successor Transaction Manager appointed pursuant to the Transaction Management Agreement.
"Transaction Manager Fee" means for each Payment Date (in accordance with and subject to the Priority of Payments) an amount equal to $[***].
"Transaction Manager Termination Event" has the meaning set forth in Section 5.1 of the Transaction Management Agreement.
"Transaction Transition Manager" means Wilmington Trust in its capacity as the Transaction Transition Manager under the Manager Transition Agreement.
"Transaction Transition Manager Expenses" means (i) any reasonable and documented out-of-pocket expenses incurred in taking any actions required in its role as Transaction Transition Manager and (ii) any indemnities owed to the Transaction Transition Manager in accordance with the Manager Transition Agreement.
52
[***] = 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.
"Transaction Transition Manager Fee" means for each Payment Date (in accordance with and subject to the Priority of Payments), an amount equal to $[***].
"Transfer" means any direct or indirect transfer or sale of any Ownership Interest in a Note.
"Transfer Date" means, with respect to a Qualified Substitute Solar Asset, the date upon which the Non-Tax Equity Project Company acquires such Qualified Substitute Solar Asset.
"Transfer Date Certification" shall have the meaning set forth in Section 4(c) of the Custodial Agreement.
"Transferee" means any Person who is acquiring by Transfer any Ownership Interest in a Note.
"Transferee Letter" means a letter in the form of Exhibit B to the Indenture executed by a Transferee in connection with a Transfer.
"TREC" means transition renewable energy credits generated in respect of a PV System under the Transition Incentive Program adopted by the New Jersey Clean Energy Program.
"TREC Payments" means with respect to a PV System, all payments due by the related TREC Obligor under or in respect of TRECs.
"TREC Obligor" means InClime, as the program administrator or its successor, or a New Jersey electric distribution company required to make payments with respect to TRECs.
"True-Up Obligation" means, with respect to a PV System, a true-up obligation between the Host Customer and the owner of the PV System that specifies a minimum level of solar energy production, as measured in kWh, for a specified time period. A True-Up Obligation stipulates the terms and conditions under which the related Host Customer could be compensated or receive a production credit if the related PV System does not meet the electricity production estimates.
"Trust Estate" means all property and rights of the Issuer Granted to the Indenture Trustee pursuant to the Granting Clause of the Indenture for the benefit of the Noteholders.
"U.S. Bank" means U.S. Bank National Association.
"U.S. Risk Retention Rules" means the final rules, which require a "sponsor" of a securitization transaction (or a majority-owned affiliate of the sponsor) to retain a portion of the credit risk of the asset-backed securities transaction, adopted in October 2014 by the Federal Deposit Insurance Company, the Federal Housing Finance Agency, the Office of the Comptroller of the Currency of the Department of the Treasury, the SEC, the Board of Governors of the
53
[***] = 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.
Federal Reserve System and the U.S. Department of Housing and Urban Development to implement the credit risk retention requirements of Section 15G of the Exchange Act as added by Section 941 of the Dodd-Frank Act.
"UCC" means the Uniform Commercial Code as adopted in the State of New York or in any other State having jurisdiction over the assignment, transfer, pledge of the Solar Assets from the Originator to the Depositor, the Depositor to the Issuer or of the Trust Estate from the Issuer to the Indenture Trustee.
"UCC Fixture Filing" means a "fixture filing" as defined in Section 2-A-309 of the UCC covering a PV System naming the initial Project Company Servicer as secured party on behalf of the related Project Company.
"UK Risk Retention, Due Diligence and Transparency Requirements" means the risk retention, transparency and due diligence requirements set out in the EU Securitization Regulation as it forms part of domestic law by virtue of the EUWA and as amended by the UK Securitization Regulation which contain due diligence requirements that apply to certain types of "institutional investor" as defined in the UK Securitization Regulation, which include insurance and reinsurance undertakings, occupational pension schemes as defined in section 1(1) of the Pension Schemes Act 1993, AIFMs (as defined in regulation 4(1) of the Alternative Investment Fund Managers Regulations 2013) which market or manage an AIF (as defined in regulation 3 of those Regulations) in the UK, management companies as defined in section 237(2) of the FSMA, UCITS as defined by section 236A of FSMA which are authorised open ended investment companies as defined in section 237(3) of FSMA, investment firms and credit institutions which are CRR firms as defined in Article 4(1)(2A) of Regulation (EU) No 575/2013 as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2018.
"UK Securitization Regulation" means Securitisation (Amendment) (EU Exit) Regulations 2019/660.
"Underwritten Notes" means the Notes sold by the Issuer to the Initial Purchaser pursuant to the Note Purchase and Placement Agency Agreement.
"Unscheduled Note Principal Payment" means for a Payment Date means an amount equal to the sum of (without duplication):
(i) the product of (a) [***]% and (b) the sum of:
(a)the sum of the applicable Securitization Share of DSAB of each Host Customer Solar Asset (other than any Non-Advanced Solar Asset or Closing Date Delinquent Solar Assets) and TREC that became a Defaulted Solar Asset during the related Collection Period other than any Defaulted Solar Assets that are replaced with Qualified Substitute Solar Assets at least three (3) Business Days prior to the related Determination Date (such
54
[***] = 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.
Securitization Share of DSAB measured immediately prior to the Host Customer Solar Asset becoming a Defaulted Solar Asset);
(b)the sum of the applicable Securitization Share of DSAB of each Host Customer Solar Asset (other than any Non-Advanced Solar Asset or Closing Date Delinquent Solar Assets) that became a Terminated Host Customer Solar Asset during the related Collection Period other than any Terminated Host Customer Solar Assets that are replaced with Qualified Substitute Solar Assets at least three (3) Business Days prior to the related Determination Date (such Securitization Share of DSAB measured immediately prior to such Host Customer Solar Asset becoming a Terminated Host Customer Solar Asset);
(c)the sum of, for each Host Customer Solar Asset (other than any Non-Advanced Solar Asset or Closing Date Delinquent Solar Assets) as to which all or any portion of any remaining expected payments due under or in respect of the related Solar Service Agreement, PBI Agreement or TREC Payments has been prepaid in advance of the expected Collection Period by or on behalf of a Host Customer, PBI Obligor or TREC Obligor (including pursuant to a Grid Services Agreement), the excess of (i) the applicable Securitization Share of DSAB of such Host Customer Solar Asset (measured immediately prior to such prepayment) over (ii) the applicable Securitization Share of DSAB of such Host Customer Solar Asset (measured immediately after such prepayment);
(d)the sum of the applicable Securitization Share of DSAB of each Host Customer Solar Asset (other than any Non-Advanced Solar Asset or Closing Date Delinquent Solar Assets) that became a Host Customer Purchased Solar Asset during the related Collection Period (such Securitization Share of DSAB measured immediately prior to the exercise of such purchase option); and
(e)any Payment Facilitation Amounts with respect to the related Collection Period;
(ii)any Project Company Reduction Amount with respect to the related Collection Period;
(iii)Liquidated Damages Amounts paid for any Solar Assets during the related Collection Period;
(iv)Repurchase Price amounts actually received during the related Collection Period;
55
[***] = 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.
(v)all Substitution Shortfall Amounts actually received for any Solar Assets at least three (3) Business Days prior to the related Determination Date for the related Collection Period; and
(vi)any unpaid portion of Unscheduled Note Principal Payments from prior Payment Dates.
"Vice President" means, with respect to Sunnova Energy, any vice president, whether or not designated by a number or a word or words added before or after the title "vice president."
"Voluntary Prepayment" has the meaning set forth in Section 6.01(a) of the Indenture. "Voluntary Prepayment Date" has the meaning set forth in Section 6.01(a) of the Indenture.
"Voluntary Prepayment Transaction Manager Report" has the meaning set forth in Section 4.4 of the Transaction Management Agreement.
"Wholly-Owned Project Company" means each of Sunnova Sol IV Owner and the Starlane Owner Project Company.
"Wilmington Trust" means Wilmington Trust, National Association, a national banking association.
56
[***] = 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 I
Schedule of Solar Assets
[see attached]
I-1
[***] = 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
Scheduled Host Customer Payments
[see attached]
II-1
[***] = 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 III
Scheduled PBI Payments
[see attached]
III-1
[***] = 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 IV
Projected TREC Payments
[see attached]
IV-1
[***] = 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 V
[Reserved]
V-1
[***] = 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 VI
Scheduled Outstanding Note Balance
| | | | | | | | |
| Payment Date | Class A Scheduled Outstanding Note Balance ($) | Class B Scheduled Outstanding Note Balance ($) |
| Closing Date | [***] | [***] |
| July 2022 | [***] | [***] |
| October 2022 | [***] | [***] |
| January 2023 | [***] | [***] |
| April 2023 | [***] | [***] |
| July 2023 | [***] | [***] |
| October 2023 | [***] | [***] |
| January 2024 | [***] | [***] |
| April 2024 | [***] | [***] |
| July 2024 | [***] | [***] |
| October 2024 | [***] | [***] |
| January 2025 | [***] | [***] |
| April 2025 | [***] | [***] |
| July 2025 | [***] | [***] |
| October 2025 | [***] | [***] |
| January 2026 | [***] | [***] |
| April 2026 | [***] | [***] |
| July 2026 | [***] | [***] |
| October 2026 | [***] | [***] |
| January 2027 | [***] | [***] |
| April 2027 | [***] | [***] |
| July 2027 | [***] | [***] |
| October 2027 | [***] | [***] |
| January 2028 | [***] | [***] |
| April 2028 | [***] | [***] |
| July 2028 | [***] | [***] |
| October 2028 | [***] | [***] |
| January 2029 | [***] | [***] |
| April 2029 | [***] | [***] |
| July 2029 | [***] | [***] |
VI-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
Schedule VII
Projected Tax Equity Investor Distributions
| | | | | |
| Year | Tax Equity Investor Distributions ($) |
| 2022 | [***] |
| 2023 | [***] |
| 2024 | [***] |
| 2025 | [***] |
| 2026 | [***] |
| 2027 | [***] |
| 2028 | [***] |
| 2029 | [***] |
| 2030 | [***] |
| 2031 | [***] |
| 2032 | [***] |
| 2033 | [***] |
| 2034 | [***] |
| 2035 | [***] |
| 2036 | [***] |
| 2037 | [***] |
| 2038 | [***] |
| 2039 | [***] |
| 2040 | [***] |
| 2041 | [***] |
| 2042 | [***] |
| 2043 | [***] |
| 2044 | [***] |
| 2045 | [***] |
| 2046 | [***] |
| 2047 | [***] |
| 2048 | [***] |
| 2049 | [***] |
| 2050 | [***] |
| 2051 | [***] |
| 2052 | [***] |
| 2053 | [***] |
VII-1
[***] = 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-1
Form of Class A Note
Note Number: [__]
Unless this Global Note is presented by an authorized representative of the Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its Agent for registration of transfer, exchange or payment, and any global note issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC) any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
Transfers of this Global Note shall be limited to transfers in whole, but not in part, to nominees of DTC or to a successor thereof or such successor’s nominee and transfers of portions of this Global Note shall be limited to transfers made in accordance with the restrictions set forth in the Indenture referred to herein.
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE OR INTEREST HEREIN MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
EACH PURCHASER AND TRANSFEREE (AND IF THE PURCHASER OR TRANSFEREE IS A BENEFIT PLAN INVESTOR OR PLAN SUBJECT TO SIMILAR LAW, ITS FIDUCIARY) BY ITS PURCHASE OF THIS NOTE OR INTEREST HEREIN IS DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) IT IS NOT ACQUIRING THE NOTE OR INTEREST THEREIN FOR OR ON BEHALF OF OR WITH THE ASSETS OF, ANY EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") THAT IS SUBJECT TO TITLE I OF ERISA OR ANY OTHER "PLAN" AS DEFINED IN SECTION 4975(E)(1) OF THE CODE THAT IS SUBJECT TO SECTION 4975 OF THE CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS (WITHIN THE MEANING OF 29 CFR SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN SUCH ENTITY (EACH A "BENEFIT PLAN INVESTOR"), OR ANY PLAN THAT IS SUBJECT TO ANY LAW SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"), OR (2) IF PURCHASER OR TRANSFEREE IS A BENEFIT PLAN INVESTOR OR A PLAN THAT IS SUBJECT TO SIMILAR LAW, THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE OR INTEREST HEREIN DOES NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE OR NON-EXEMPT VIOLATION OF SIMILAR LAW AND WILL BE CONSISTENT WITH ANY APPLICABLE
A-1-1
[***] = 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.
FIDUCIARY DUTIES THAT MAY BE IMPOSED UPON THE PURCHASER OR TRANSFEREE.
THE HOLDER OF THIS NOTE OR ANY INTEREST HEREIN AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE AND ANY INTEREST HEREIN MAY ONLY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN MINIMUM DENOMINATIONS OF $100,000 AND IN INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF, AND ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A (ACTING FOR ITS OWN ACCOUNT AND NOT FOR THE ACCOUNT OF OTHERS, OR AS A FIDUCIARY OR AGENT FOR OTHER QIBS TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A), (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE AND EVIDENCED BY AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER AND THE INDENTURE TRUSTEE), IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. NOTWITHSTANDING THE FOREGOING RESTRICTION, ANY NOTE THAT HAS ORIGINALLY BEEN PROPERLY ISSUED IN AN AMOUNT NO LESS THAN THE MINIMUM DENOMINATION, OR ANY INTEREST THEREIN, MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN A DENOMINATION LESS THAN THE MINIMUM DENOMINATION IF SUCH LESSER DENOMINATION IS SOLELY A RESULT OF A REDUCTION OF PRINCIPAL DUE TO PAYMENTS MADE IN ACCORDANCE WITH THE INDENTURE.
[For Regulation S Temporary Global Note, add the following:
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT WHICH IS EXCHANGEABLE FOR A REGULATION S PERMANENT GLOBAL NOTE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE INDENTURE REFERRED TO HEREIN.]
THE PURCHASER UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN THE NOTES FROM THE SECURITIES DEPOSITORY.
Sections 2.07 and 2.08 of the Indenture contain further restrictions on the transfer and resale of this Note (or interest therein). Each Transferee of this Note, by acceptance hereof, is deemed to have accepted this Note subject to the foregoing restrictions on transferability.
Each Noteholder or Note Owner, by its acceptance of this Note (or interest therein), covenants and agrees that such Noteholder or Note Owner, as the case may be, shall not, prior to the date that is one year and one day after the termination of the Indenture, acquiesce, petition or otherwise invoke or cause the Issuer to invoke the process of any court or governmental authority for the purpose of commencing or sustaining a case against the Issuer under any federal or state
A-1-2
[***] = 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.
bankruptcy, insolvency, reorganization or similar law or appointing a receiver, liquidator, assignee, indenture trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Issuer. The principal of this Note is payable in installments as set forth herein. Accordingly, the outstanding principal amount of this Note at any time may be less than the amount shown on the face hereof. Any person acquiring this security may ascertain its current principal amount by inquiry of the Indenture Trustee.
This Note has been issued with Original Issue Discount ("OID") for United States Federal Income Tax Purposes. The Issue Price, Amount of OID, Issue Date, Accrual Periods, Yield to Maturity, the Comparable Yield and Projected Payment Schedule of this Note for United States Federal Income Tax Purposes may be obtained by writing to the Issuer at Sunnova Sol IV Issuer, LLC, 20 East Greenway Plaza, Suite 540, Houston, Texas 77046, Attention: Chief Financial Officer.
A-1-3
[***] = 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.
Sunnova Sol IV Issuer, LLC
Solar Asset Backed Notes, Series 2022-1
Class A Note
[RULE 144A GLOBAL NOTE]
[REGULATION S TEMPORARY GLOBAL NOTE]
[REGULATION S PERMANENT GLOBAL NOTE]
| | | | | | | | |
| | |
| Original Issue date | Rated Final Maturity | Issue Price |
| June 27, 2022 | April 30, 2057 | 96.45080% |
Registered Owner: Cede & Co.
Initial Principal Balance: Up to $317,000,000
CUSIP No. [86744XAA5] [U8677RAA0]
ISIN No. [US86744XAA54] [USU8677RAA06]
This Certifies That Sunnova Sol IV Issuer, LLC, a Delaware limited liability company (hereinafter called the "Issuer"), which term includes any successor entity under the Indenture, dated as of June 27, 2022 (the "Indenture"), between the Issuer and Wilmington Trust, National Association, as indenture trustee (together with any successor thereto, hereinafter called the "Indenture Trustee"), for value received, hereby promises to pay to the Registered Owner named above or registered assigns, subject to the provisions hereof and of the Indenture, (A) the interest based on the Interest Accrual Period at the applicable Note Rate defined in the Indenture, on each Payment Date beginning in July 2022 (or, if such day is not a Business Day, the next succeeding Business Day), and (B) principal on each Payment Date in the manner and subject to the Priority of Payments as set forth in the Indenture; provided, however, that the Notes are subject to prepayment as set forth in the Indenture. This note (this "Class A Note") is one of a duly authorized series of Class A Notes of the Issuer designated as its Sunnova Sol IV Issuer, LLC, 4.95% Solar Asset Backed Notes, Series 2022-1, Class A (the "Class A Notes"). The Indenture authorizes the issuance of up to $317,000,000 in Outstanding Note Balance of Class A Notes and up to $38,000,000 in Outstanding Note Balance of Sunnova Sol IV Issuer, LLC, 6.35% Solar Asset Backed Notes, Series 2022-1, Class B (the "Class B Notes" and together with the Class A Notes, the "Notes"). The Indenture provides that the Notes will be entitled to receive payments in reduction of the Outstanding Note Balance, in the amounts, from the sources, and at the times more specifically as set forth in the Indenture. The Notes are secured by the Trust Estate (as defined in the Indenture).
Reference is hereby made to the Indenture and all indentures supplemental thereto for a statement of the respective rights thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes and the terms upon which the Notes are to be authenticated and delivered. All terms used in this Note which are not defined herein shall have the meanings assigned to them in the Indenture.
A-1-4
[***] = 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.
The Obligation of the Issuer to repay the Notes is a Limited, nonrecourse obligation secured only by the Trust Estate. All payments of principal of and interest on the Class A Notes shall be made only from the Trust Estate, and each Noteholder and each Note Owner hereof, by its acceptance of this Class A Note, agrees that it shall be entitled to payments solely from such Trust Estate pursuant to the terms of the Indenture. The actual Outstanding Note Balance on this Class A Note may be less than the principal balance indicated on the face hereof. The actual Outstanding Note Balance on this Class A Note at any time may be obtained from the Indenture Trustee.
With respect to payment of principal of and interest on the Class A Notes, the Indenture provides the following:
(a)Until fully paid, principal payments on the Class A Notes will be made on each Payment Date in an amount, at the time, and in the manner provided in the Indenture. The Outstanding Note Balance of each Class A Note shall be payable no later than the Rated Final Maturity thereof unless the Outstanding Note Balance of such Class A Note becomes due and payable at an earlier date pursuant to the Indenture, and in each case such payment shall be made in an amount and in the manner provided in the Indenture.
(b)The Class A Notes shall bear interest on the Outstanding Note Balance of the Class A Notes and accrued but unpaid interest thereon, at the applicable Note Rate. The Note Interest with respect to the Class A Notes shall be payable on each Payment Date to the extent that the Collection Account then contains sufficient amounts to pay such Note Interest pursuant to Section 5.06 of the Indenture. Note Interest will accrue on the basis of a 360-day year consisting of twelve 30-day months.
All payments of interest and principal on the Class A Notes on the applicable Payment Date shall be paid to the Person in whose name such Class A Note is registered at the close of business as of the Record Date for such Payment Date in the manner provided in the Indenture. All reductions in the Outstanding Note Balance of a Class A Note (or one or more Predecessor Notes) effected by full or partial payments of installments of principal shall be binding upon all past, then current, and future Holders of such Class A Note and of any Class A Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Class A Note.
The Rated Final Maturity of the Notes is April 30, 2057 unless the Notes are earlier prepaid in whole or accelerated pursuant to the Indenture. The Indenture Trustee shall pay to each Class A Noteholder of record on the preceding Record Date either (i) by wire transfer, in immediately available funds to the account of such Class A Noteholder at a bank or other entity having appropriate facilities therefor, if such Class A Noteholder shall have provided to the Indenture Trustee appropriate written instructions at least five Business Days prior to the related Payment Date (which instructions may remain in effect for subsequent Payment Dates unless revoked by the Class A Noteholder), or (ii) if not, by check mailed to such Class A Noteholder at the address of such Class A Noteholder appearing in the Note Register, the amounts to be paid to such Class A Noteholder pursuant to such Class A Noteholder’s Notes; provided, that so long as the Class A Notes are registered in the name of the Securities Depository such payments shall be made to the nominee thereof in immediately available funds.
The Class A Notes shall be subject to voluntary prepayment at the option of the Issuer in the manner and subject to the provisions of the Indenture. Whenever by the terms of the Indenture, the Indenture Trustee is required to prepay the Class A Notes, and subject to and in
A-1-5
[***] = 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.
accordance with the terms of Article VI of the Indenture, the Indenture Trustee shall give notice of the prepayment in the manner prescribed by the Indenture.
Subject to certain restrictions contained in the Indenture, (i) the Class A Notes are issuable in the minimum denomination of $100,000 and in integral multiples of $1,000 in excess thereof (provided, that one Class A Note may be issued in an additional amount equal to the minimum denomination plus any remaining portion of the Initial Outstanding Note Balance) and (ii) the Class A Notes may be exchanged for a like aggregate principal amount of Class A Notes of authorized denominations of the same maturity.
The final payment on any Definitive Note shall be made only upon presentation and surrender of the Note at the Corporate Trust Office of the Indenture Trustee.
The Class A Noteholders shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any Event of Default, or to institute, appear in or defend any Proceedings with respect thereto, except as provided in the Indenture.
The Class A Notes may be exchanged, and their transfer may be registered, by the Noteholders in person or by their attorneys duly authorized in writing at the Corporate Trust Office of the Indenture Trustee only in the manner, subject to the limitations provided in the Indenture, and upon surrender and cancellation of the Class A Notes. Upon exchange or registration of such transfer, a new registered Class A Note or Notes evidencing the same outstanding principal amount will be executed in exchange therefor.
All amounts collected as payments on the Trust Estate or otherwise shall be applied in the order of priority specified in the Indenture.
Each Person who has or who acquires any Ownership Interest in a Class A Note shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the provisions of the Indenture. A Noteholder may not sell, offer for sale, assign, pledge, hypothecate or otherwise transfer or encumber all or any part of its interest in the Class A Notes except pursuant to an effective registration statement covering such transaction under the Securities Act of 1933, as amended, and effective qualification or registration under all applicable State securities laws and regulations or under an exemption from registration under said Securities Act and said State securities laws and regulations.
[Add the following for Rule 144A Global Notes:
Interests in this Class A Note may be exchanged for an interest in the corresponding Regulation S Temporary Global Note or Regulation S Permanent Global Note, in each case subject to the restrictions specified in the Indenture.]
[Add the following for Regulation S Temporary Global Notes:
Interests in this Class A Note may be exchanged for an interest in the corresponding Rule 144A Global Note, subject to the restrictions specified in the Indenture.
On or after the 40th day after the later of the Closing Date and the commencement of the offering of the Notes, interests in this Regulation S Temporary Global Note may be exchanged (free of charge) for interests in a Regulation S Permanent Global Note. The Regulation S
A-1-6
[***] = 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.
Permanent Global Note shall be so issued and delivered in exchange for only that portion of this Regulation S Temporary Global Note in respect of which there shall have been presented to DTC by Euroclear or Clearstream a certification to the effect that it has received from or in respect of a person entitled to an interest (as shown by its records) a certification that the beneficial interests in such Regulation S Temporary Global Note are owned by persons who are not U.S. persons (as defined in Regulation S).]
[Add the following for Regulation S Permanent Global Notes:
Interests in this Class A Note may be exchanged for an interest in the corresponding Rule 144A Global Note, subject to the restrictions specified in the Indenture.]
Prior to the date that is one year and one day after the payment in full of all amounts payable with respect to the Class A Notes, each Person who has or acquires an Ownership Interest in a Class A Note agrees that such Person will not institute against the Issuer, or join any other Person in instituting against the Issuer, any Insolvency Proceeding or other Proceedings under the laws of the United States or any State. This covenant shall survive the termination of the Indenture.
Before the due presentment for registration of transfer of this Class A Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the person in whose name this Class A Note is registered (i) on any Record Date for purposes of making payments, and (ii) on any other date for any other purpose, as the owner hereof, whether or not this Class A Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits the amendment thereof for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Indenture or of modifying in any manner the rights of the Noteholders under the Indenture at any time by the Issuer and the Indenture Trustee (and, in some cases, only with the consent of the Noteholder affected thereby) and compliance with certain other conditions. Any such consent by the Holder, at the time of the giving thereof, of this Class A Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Class A Note and of any Class A Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Class A Note.
The Class A Notes and all obligations with respect thereto, including obligations under the Indenture, will be limited recourse obligations of the Issuer payable solely from the Trust Estate. Neither the Issuer, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Performance Guarantor, the Depositor, the Transaction Manager, the Transaction Transition Manager, the Custodian, the Note Registrar, the Indenture Trustee in its individual capacity or in its capacity as Indenture Trustee, nor any of their respective Affiliates, agents, partners, beneficiaries, officers, directors, stockholders, stockholders of partners, employees or successors or assigns, shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture. Without limiting the foregoing, each Noteholder and each Note Owner of any Class A Note by its acceptance thereof, and the Indenture Trustee, shall be deemed to have agreed (i) that it shall look only to the Trust Estate to satisfy the Issuer’s obligations under or with respect to a Class A Note or the Indenture, including but not limited to liabilities under Article V of the Indenture and liabilities arising (whether at common law or equity) from breaches by the Issuer of any obligations, covenants and agreements herein or, to the extent
A-1-7
[***] = 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.
enforceable, for any violation by the Issuer of applicable State or federal law or regulation, provided that, the Issuer shall not be relieved of liability hereunder with respect to any misrepresentation in the Indenture or any Transaction Document, or fraud, of the Issuer, and (ii) to waive any rights it may have to obtain a deficiency or other monetary judgment against either the Issuer or any of its principals, directors, officers, beneficial owners, employees or agents (whether disclosed or undisclosed) or their respective assets (other than the Trust Estate). The foregoing provisions of this paragraph shall not (i) prevent recourse to the Trust Estate or any Person (other than the Issuer) for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Class A Notes or secured by the Indenture, but the same shall continue until paid or discharged, or (iii) prevent the Indenture Trustee from exercising its rights with respect to the Grant, pursuant to the Indenture, of the Issuer’s rights under the Transaction Documents. It is further understood that the foregoing provisions of this paragraph shall not limit the right of any Person to name the Indenture Trustee in its capacity as Indenture Trustee under the Indenture or the Issuer as a party defendant in any action or suit or in the exercise of any remedy under the Notes or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced. It is expressly understood that all such liability is hereby expressly waived and released to the extent provided herein as a condition of, and as a consideration for, the execution of the Indenture and the issuance of the Notes.
The remedies of the Holder of this Class A Note as provided herein, in the Indenture or in the other Transaction Documents, shall be cumulative and concurrent and may be pursued solely against the assets of the Trust Estate. No failure on the part of the Noteholder in exercising any right or remedy hereunder shall operate as a waiver or release thereof, nor shall any single or partial exercise of any such right or remedy preclude any other further exercise thereof or the exercise of any other right or remedy hereunder.
The Class A Notes are issuable only in registered form in denominations as provided in the Indenture and subject to certain limitations therein set forth. At the option of the Class A Noteholder, Class A Notes may be exchanged for Class A Notes of like terms, in any authorized denominations and of like aggregate principal amount, upon surrender of the Notes to be exchanged at the Corporate Trust Office of the Indenture Trustee, subject to the terms and conditions of the Indenture.
Reference is hereby made to the Indenture, a copy of which is on file with the Indenture Trustee, for the provisions, among others, with respect to (i) the nature and extent of the rights, duties and obligations of the Indenture Trustee, the Issuer and the Class A Noteholders; (ii) the terms upon which the Class A Notes are executed and delivered; (iii) the collection and disposition of payments or proceeds in respect of the Conveyed Property; (iv) a description of the Trust Estate; (v) the modification or amendment of the Indenture; (vi) other matters; and (vii) the definition of capitalized terms used in this Class A Note that are not defined herein; to all of which the Class A Noteholders and Note Owners assent by the acceptance of the Class A Notes.
This Class A Note is issued pursuant to the indenture and it and the Indenture shall be governed by and construed in accordance with the laws of the State of New York and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws (including, without limitation, §5-1401 and §5-1402 of the General Obligations Law of the State of New York, but otherwise without giving effect to principles of conflicts of laws).
A-1-8
[***] = 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.
Reference is hereby made to the provisions of the Indenture and such provisions are hereby incorporated by reference as if fully set forth herein.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by manual signature, this Class A Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-1-9
[***] = 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 Issuer has caused this instrument to be duly executed as of the date set forth below.
| | | | | | | | | | | |
Sunnova Sol IV Issuer, LLC, as Issuer |
|
| By | | | |
| Name: | | |
| Title: | | |
A-1-10
[***] = 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.
Indenture Trustee’s Certificate Of Authentication
This is one of the Class A Notes referred to in the within-mentioned Indenture.
Dated:
| | | | | |
Wilmington Trust, National Association, as
Indenture Trustee |
|
| By |
| Name: |
| Title: |
A-1-11
[***] = 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.
[Form of Assignment]
For Value Received, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or
Taxpayer Identification Number
of Assignee)
_______________________________
_______________________________
______________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
______________________________________________________________________________
the within Note, and all rights thereunder, and hereby does irrevocably constitute and appoint
______________________________________________________________________________
Attorney to transfer the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Date:___________________
Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever.
A-1-12
[***] = 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-2
Form of Class B Note
Note Number: [__]
Unless this Global Note is presented by an authorized representative of the Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its Agent for registration of transfer, exchange or payment, and any global note issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC) any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
Transfers of this Global Note shall be limited to transfers in whole, but not in part, to nominees of DTC or to a successor thereof or such successor’s nominee and transfers of portions of this Global Note shall be limited to transfers made in accordance with the restrictions set forth in the Indenture referred to herein.
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE OR INTEREST HEREIN MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
EACH PURCHASER AND TRANSFEREE (AND IF THE PURCHASER OR TRANSFEREE IS A BENEFIT PLAN INVESTOR OR PLAN SUBJECT TO SIMILAR LAW, ITS FIDUCIARY) ) BY ITS PURCHASE OF THIS NOTE OR INTEREST HEREIN IS DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) IT IS NOT ACQUIRING THE NOTE OR INTEREST THEREIN FOR OR ON BEHALF OF OR WITH THE ASSETS OF, ANY EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") THAT IS SUBJECT TO TITLE I OF ERISA OR ANY OTHER "PLAN" AS DEFINED IN SECTION 4975(E)(1) OF THE CODE THAT IS SUBJECT TO SECTION 4975 OF THE CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS (WITHIN THE MEANING OF 29 CFR SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA) BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR PLAN'S INVESTMENT IN SUCH ENTITY (EACH A "BENEFIT PLAN INVESTOR"), OR ANY PLAN THAT IS SUBJECT TO ANY LAW SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"), OR (2) IF PURCHASER OR TRANSFEREE IS A BENEFIT PLAN INVESTOR OR A PLAN THAT IS SUBJECT TO SIMILAR LAW, THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE OR INTEREST HEREIN DOES NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE OR NON-EXEMPT VIOLATION OF SIMILAR LAW AND WILL BE CONSISTENT WITH ANY APPLICABLE
A-2-1
[***] = 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.
FIDUCIARY DUTIES THAT MAY BE IMPOSED UPON THE PURCHASER OR TRANSFEREE.
THE HOLDER OF THIS NOTE OR ANY INTEREST HEREIN AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE AND ANY INTEREST HEREIN MAY ONLY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN MINIMUM DENOMINATIONS OF $100,000 AND IN INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF, AND ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A (ACTING FOR ITS OWN ACCOUNT AND NOT FOR THE ACCOUNT OF OTHERS, OR AS A FIDUCIARY OR AGENT FOR OTHER QIBS TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A), (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE AND EVIDENCED BY AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER AND THE INDENTURE TRUSTEE), IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. NOTWITHSTANDING THE FOREGOING RESTRICTION, ANY NOTE THAT HAS ORIGINALLY BEEN PROPERLY ISSUED IN AN AMOUNT NO LESS THAN THE MINIMUM DENOMINATION, OR ANY INTEREST THEREIN, MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN A DENOMINATION LESS THAN THE MINIMUM DENOMINATION IF SUCH LESSER DENOMINATION IS SOLELY A RESULT OF A REDUCTION OF PRINCIPAL DUE TO PAYMENTS MADE IN ACCORDANCE WITH THE INDENTURE.
[For Regulation S Temporary Global Note, add the following:
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT WHICH IS EXCHANGEABLE FOR A REGULATION S PERMANENT GLOBAL NOTE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE INDENTURE REFERRED TO HEREIN.]
THE PURCHASER UNDERSTANDS THAT THE ISSUER MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN THE NOTES FROM THE SECURITIES DEPOSITORY.
Sections 2.07 and 2.08 of the Indenture contain further restrictions on the transfer and resale of this Note (or interest therein). Each Transferee of this Note, by acceptance hereof, is deemed to have accepted this Note subject to the foregoing restrictions on transferability.
Each Noteholder or Note Owner, by its acceptance of this Note (or interest therein), covenants and agrees that such Noteholder or Note Owner, as the case may be, shall not, prior to the date that is one year and one day after the termination of the Indenture, acquiesce, petition or otherwise invoke or cause the Issuer to invoke the process of any court or governmental authority for the purpose of commencing or sustaining a case against the Issuer under any federal or state
A-2-2
[***] = 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.
bankruptcy, insolvency, reorganization or similar law or appointing a receiver, liquidator, assignee, indenture trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Issuer. The principal of this Note is payable in installments as set forth herein. Accordingly, the outstanding principal amount of this Note at any time may be less than the amount shown on the face hereof. Any person acquiring this security may ascertain its current principal amount by inquiry of the Indenture Trustee.
This Note has been issued with Original Issue Discount ("OID") for United States Federal Income Tax Purposes. The Issue Price, Amount of OID, Issue Date, Accrual Periods, Yield to Maturity, the Comparable Yield and Projected Payment Schedule of this Note for United States Federal Income Tax Purposes may be obtained by writing to the Issuer at Sunnova Sol IV Issuer, LLC, 20 East Greenway Plaza, Suite 540, Houston, Texas 77046, Attention: Chief Financial Officer.
A-2-3
[***] = 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.
Sunnova Sol IV Issuer, LLC
Solar Asset Backed Notes, Series 2022-1
Class B Note
[RULE 144A GLOBAL NOTE]
[REGULATION S TEMPORARY GLOBAL NOTE]
[REGULATION S PERMANENT GLOBAL NOTE]
| | | | | | | | |
| | |
| Original Issue date | Rated Final Maturity | Issue Price |
| June 27, 2022 | April 30, 2057 | 97.89897% |
Registered Owner: Cede & Co.
Initial Principal Balance: Up to $38,000,000
CUSIP No. [86744XAB3] [U8677RAB8]
ISIN No. [US86744XAB38] [USU8677RAB88]
This Certifies That Sunnova Sol IV Issuer, LLC, a Delaware limited liability company (hereinafter called the "Issuer"), which term includes any successor entity under the Indenture, dated as of June 27, 2022 (the "Indenture"), between the Issuer and Wilmington Trust, National Association, as indenture trustee (together with any successor thereto, hereinafter called the "Indenture Trustee"), for value received, hereby promises to pay to the Registered Owner named above or registered assigns, subject to the provisions hereof and of the Indenture, (A) the interest based on the Interest Accrual Period at the applicable Note Rate defined in the Indenture, on each Payment Date beginning in July 2022 (or, if such day is not a Business Day, the next succeeding Business Day), and (B) principal on each Payment Date in the manner and subject to the Priority of Payments as set forth in the Indenture; provided, however, that the Notes are subject to prepayment as set forth in the Indenture. This note (this "Class B Note") is one of a duly authorized series of Class B Notes of the Issuer designated as its Sunnova Sol IV Issuer, LLC, 6.35% Solar Asset Backed Notes, Series 2022-1, Class B (the "Class B Notes"). The Indenture authorizes the issuance of up to $38,000,000 in Outstanding Note Balance of Class B Notes and up to $317,000,000 in Outstanding Note Balance of Sunnova Sol IV Issuer, LLC, 4.95% Solar Asset Backed Notes, Series 2022-1, Class A (the "Class A Notes" and together with the Class B Notes, the "Notes"). The Indenture provides that the Notes will be entitled to receive payments in reduction of the Outstanding Note Balance, in the amounts, from the sources, and at the times more specifically as set forth in the Indenture. The Notes are secured by the Trust Estate (as defined in the Indenture).
Reference is hereby made to the Indenture and all indentures supplemental thereto for a statement of the respective rights thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes and the terms upon which the Notes are to be authenticated and delivered. All terms used in this Note which are not defined herein shall have the meanings assigned to them in the Indenture.
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[***] = 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.
The Obligation of the Issuer to repay the Notes is a Limited, nonrecourse obligation secured only by the Trust Estate. All payments of principal of and interest on the Class B Notes shall be made only from the Trust Estate, and each Noteholder and each Note Owner hereof, by its acceptance of this Class B Note, agrees that it shall be entitled to payments solely from such Trust Estate pursuant to the terms of the Indenture. The actual Outstanding Note Balance on this Class B Note may be less than the principal balance indicated on the face hereof. The actual Outstanding Note Balance on this Class B Note at any time may be obtained from the Indenture Trustee.
With respect to payment of principal of and interest on the Class B Notes, the Indenture provides the following:
(a)Until fully paid, principal payments on the Class B Notes will be made on each Payment Date in an amount, at the time, and in the manner provided in the Indenture. The Outstanding Note Balance of each Class B Note shall be payable no later than the Rated Final Maturity thereof unless the Outstanding Note Balance of such Class B Note becomes due and payable at an earlier date pursuant to the Indenture, and in each case such payment shall be made in an amount and in the manner provided in the Indenture.
(b)The Class B Notes shall bear interest on the Outstanding Note Balance of the Class B Notes and accrued but unpaid interest thereon, at the applicable Note Rate. The Note Interest with respect to the Class B Notes shall be payable on each Payment Date to the extent that the Collection Account then contains sufficient amounts to pay such Note Interest pursuant to Section 5.06 of the Indenture. Note Interest will accrue on the basis of a 360-day year consisting of twelve 30-day months.
All payments of interest and principal on the Class B Notes on the applicable Payment Date shall be paid to the Person in whose name such Class B Note is registered at the close of business as of the Record Date for such Payment Date in the manner provided in the Indenture. All reductions in the Outstanding Note Balance of a Class B Note (or one or more Predecessor Notes) effected by full or partial payments of installments of principal shall be binding upon all past, then current, and future Holders of such Class B Note and of any Class B Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Class B Note.
The Rated Final Maturity of the Notes is April 30, 2057 unless the Notes are earlier prepaid in whole or accelerated pursuant to the Indenture. The Indenture Trustee shall pay to each Class B Noteholder of record on the preceding Record Date either (i) by wire transfer, in immediately available funds to the account of such Class B Noteholder at a bank or other entity having appropriate facilities therefor, if such Class B Noteholder shall have provided to the Indenture Trustee appropriate written instructions at least five Business Days prior to the related Payment Date (which instructions may remain in effect for subsequent Payment Dates unless revoked by the Class B Noteholder), or (ii) if not, by check mailed to such Class B Noteholder at the address of such Class B Noteholder appearing in the Note Register, the amounts to be paid to such Class B Noteholder pursuant to such Class B Noteholder’s Notes; provided, that so long as the Class B Notes are registered in the name of the Securities Depository such payments shall be made to the nominee thereof in immediately available funds.
The Class B Notes shall be subject to voluntary prepayment at the option of the Issuer in the manner and subject to the provisions of the Indenture. Whenever by the terms of the Indenture, the Indenture Trustee is required to prepay the Class B Notes, and subject to and in
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[***] = 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.
accordance with the terms of Article VI of the Indenture, the Indenture Trustee shall give notice of the prepayment in the manner prescribed by the Indenture.
Subject to certain restrictions contained in the Indenture, (i) the Class B Notes are issuable in the minimum denomination of $100,000 and in integral multiples of $1,000 in excess thereof (provided, that one Class B Note may be issued in an additional amount equal to the minimum denomination plus any remaining portion of the Initial Outstanding Note Balance) and (ii) the Class B Notes may be exchanged for a like aggregate principal amount of Class B Notes of authorized denominations of the same maturity.
The final payment on any Definitive Note shall be made only upon presentation and surrender of the Note at the Corporate Trust Office of the Indenture Trustee.
The Class B Noteholders shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any Event of Default, or to institute, appear in or defend any Proceedings with respect thereto, except as provided in the Indenture.
The Class B Notes may be exchanged, and their transfer may be registered, by the Noteholders in person or by their attorneys duly authorized in writing at the Corporate Trust Office of the Indenture Trustee only in the manner, subject to the limitations provided in the Indenture, and upon surrender and cancellation of the Class B Notes. Upon exchange or registration of such transfer, a new registered Class B Note or Notes evidencing the same outstanding principal amount will be executed in exchange therefor.
All amounts collected as payments on the Trust Estate or otherwise shall be applied in the order of priority specified in the Indenture.
Each Person who has or who acquires any Ownership Interest in a Class B Note shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the provisions of the Indenture. A Noteholder may not sell, offer for sale, assign, pledge, hypothecate or otherwise transfer or encumber all or any part of its interest in the Class B Notes except pursuant to an effective registration statement covering such transaction under the Securities Act of 1933, as amended, and effective qualification or registration under all applicable State securities laws and regulations or under an exemption from registration under said Securities Act and said State securities laws and regulations.
[Add the following for Rule 144A Global Notes:
Interests in this Class B Note may be exchanged for an interest in the corresponding Regulation S Temporary Global Note or Regulation S Permanent Global Note, in each case subject to the restrictions specified in the Indenture.]
[Add the following for Regulation S Temporary Global Notes:
Interests in this Class B Note may be exchanged for an interest in the corresponding Rule 144A Global Note, subject to the restrictions specified in the Indenture.
On or after the 40th day after the later of the Closing Date and the commencement of the offering of the Notes, interests in this Regulation S Temporary Global Note may be exchanged (free of charge) for interests in a Regulation S Permanent Global Note. The Regulation S
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[***] = 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.
Permanent Global Note shall be so issued and delivered in exchange for only that portion of this Regulation S Temporary Global Note in respect of which there shall have been presented to DTC by Euroclear or Clearstream a certification to the effect that it has received from or in respect of a person entitled to an interest (as shown by its records) a certification that the beneficial interests in such Regulation S Temporary Global Note are owned by persons who are not U.S. persons (as defined in Regulation S).]
[Add the following for Regulation S Permanent Global Notes:
Interests in this Class B Note may be exchanged for an interest in the corresponding Rule 144A Global Note, subject to the restrictions specified in the Indenture.]
Prior to the date that is one year and one day after the payment in full of all amounts payable with respect to the Class B Notes, each Person who has or acquires an Ownership Interest in a Class B Note agrees that such Person will not institute against the Issuer, or join any other Person in instituting against the Issuer, any Insolvency Proceeding or other Proceedings under the laws of the United States or any State. This covenant shall survive the termination of the Indenture.
Before the due presentment for registration of transfer of this Class B Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the person in whose name this Class B Note is registered (i) on any Record Date for purposes of making payments, and (ii) on any other date for any other purpose, as the owner hereof, whether or not this Class B Note be overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits the amendment thereof for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Indenture or of modifying in any manner the rights of the Noteholders under the Indenture at any time by the Issuer and the Indenture Trustee (and, in some cases, only with the consent of the Noteholder affected thereby) and compliance with certain other conditions. Any such consent by the Holder, at the time of the giving thereof, of this Class B Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Class B Note and of any Class B Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Class B Note.
The Class B Notes and all obligations with respect thereto, including obligations under the Indenture, will be limited recourse obligations of the Issuer payable solely from the Trust Estate. Neither the Issuer, Sunnova Intermediate Holdings, Sunnova Sol IV Holdings, the Performance Guarantor, the Depositor, the Transaction Manager, the Transaction Transition Manager, the Custodian, the Note Registrar, the Indenture Trustee in its individual capacity or in its capacity as Indenture Trustee, nor any of their respective Affiliates, agents, partners, beneficiaries, officers, directors, stockholders, stockholders of partners, employees or successors or assigns, shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture. Without limiting the foregoing, each Noteholder and each Note Owner of any Class B Note by its acceptance thereof, and the Indenture Trustee, shall be deemed to have agreed (i) that it shall look only to the Trust Estate to satisfy the Issuer’s obligations under or with respect to a Class B Note or the Indenture, including but not limited to liabilities under Article V of the Indenture and liabilities arising (whether at common law or equity) from breaches by the Issuer of any obligations, covenants and agreements herein or, to the extent
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[***] = 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.
enforceable, for any violation by the Issuer of applicable State or federal law or regulation, provided that, the Issuer shall not be relieved of liability hereunder with respect to any misrepresentation in the Indenture or any Transaction Document, or fraud, of the Issuer, and (ii) to waive any rights it may have to obtain a deficiency or other monetary judgment against either the Issuer or any of its principals, directors, officers, beneficial owners, employees or agents (whether disclosed or undisclosed) or their respective assets (other than the Trust Estate). The foregoing provisions of this paragraph shall not (i) prevent recourse to the Trust Estate or any Person (other than the Issuer) for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Class B Notes or secured by the Indenture, but the same shall continue until paid or discharged, or (iii) prevent the Indenture Trustee from exercising its rights with respect to the Grant, pursuant to the Indenture, of the Issuer’s rights under the Transaction Documents. It is further understood that the foregoing provisions of this paragraph shall not limit the right of any Person to name the Indenture Trustee in its capacity as Indenture Trustee under the Indenture or the Issuer as a party defendant in any action or suit or in the exercise of any remedy under the Notes or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced. It is expressly understood that all such liability is hereby expressly waived and released to the extent provided herein as a condition of, and as a consideration for, the execution of the Indenture and the issuance of the Notes.
The remedies of the Holder of this Class B Note as provided herein, in the Indenture or in the other Transaction Documents, shall be cumulative and concurrent and may be pursued solely against the assets of the Trust Estate. No failure on the part of the Noteholder in exercising any right or remedy hereunder shall operate as a waiver or release thereof, nor shall any single or partial exercise of any such right or remedy preclude any other further exercise thereof or the exercise of any other right or remedy hereunder.
The Class B Notes are issuable only in registered form in denominations as provided in the Indenture and subject to certain limitations therein set forth. At the option of the Class B Noteholder, Class B Notes may be exchanged for Class B Notes of like terms, in any authorized denominations and of like aggregate principal amount, upon surrender of the Notes to be exchanged at the Corporate Trust Office of the Indenture Trustee, subject to the terms and conditions of the Indenture.
Reference is hereby made to the Indenture, a copy of which is on file with the Indenture Trustee, for the provisions, among others, with respect to (i) the nature and extent of the rights, duties and obligations of the Indenture Trustee, the Issuer and the Class B Noteholders; (ii) the terms upon which the Class B Notes are executed and delivered; (iii) the collection and disposition of payments or proceeds in respect of the Conveyed Property; (iv) a description of the Trust Estate; (v) the modification or amendment of the Indenture; (vi) other matters; and (vii) the definition of capitalized terms used in this Class B Note that are not defined herein; to all of which the Class B Noteholders and Note Owners assent by the acceptance of the Class B Notes.
This Class B Note is issued pursuant to the indenture and it and the Indenture shall be governed by and construed in accordance with the laws of the State of New York and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws (including, without limitation, §5-1401 and §5-1402 of the General Obligations Law of the State of New York, but otherwise without giving effect to principles of conflicts of laws).
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[***] = 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.
Reference is hereby made to the provisions of the Indenture and such provisions are hereby incorporated by reference as if fully set forth herein.
Unless the certificate of authentication hereon has been executed by the Indenture Trustee by manual signature, this Class B Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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[***] = 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 Issuer has caused this instrument to be duly executed as of the date set forth below.
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Sunnova Sol IV Issuer, LLC, as Issuer |
|
| By | | | |
| Name: | | |
| Title: | | |
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[***] = 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.
Indenture Trustee’s Certificate Of Authentication
This is one of the Class B Notes referred to in the within-mentioned Indenture.
Dated:
| | | | | |
Wilmington Trust, National Association, as
Indenture Trustee |
|
| By |
| Name: |
| Title: |
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[***] = 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.
[Form of Assignment]
For Value Received, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or
Taxpayer Identification Number
of Assignee)
_______________________________
_______________________________
______________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
______________________________________________________________________________
the within Note, and all rights thereunder, and hereby does irrevocably constitute and appoint
______________________________________________________________________________
Attorney to transfer the within Note on the books kept for registration thereof, with full power of substitution in the premises.
Date:___________________
Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever.
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[***] = 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 B-1
Form of Transfer Certificate for Exchange or Transfer
From Rule 144A Global Note
to Regulation S Global note
[DATE]
Wilmington Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Administration
Re: Sunnova Sol IV Issuer, LLC
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 27, 2022 (the "Indenture"), by and among Sunnova Sol IV Issuer, LLC (the "Issuer") and Wilmington Trust, National Association, as indenture trustee (in such capacity, the "Indenture Trustee"). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to US $[__] aggregate Outstanding Note Balance of Notes (the "Notes") which are held in the form of the Rule 144A Global Note (CUSIP No. __________) with the Securities Depository in the name of [insert name of transferor] (the "Transferor"). The Transferor has requested a transfer of such beneficial interest for an interest in the Regulation S Global Note (CUSIP No. __________) to be held with [Euroclear] [Clearstream]1 (Common Code No. ___________) through the Securities Depository.
In connection with such request and in respect of such Notes, the Transferor does hereby certify that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and [(i) with respect to transfers made]2 pursuant to and in accordance with Rules 903 and 904 of Regulation S under the Securities Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in the United States,
(2) [at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States] [the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the transferor nor any person
1 Select appropriate depository.
2 To be included only after the 40-day distribution compliance period.
(Cont’d on following page)
B-1-1
[***] = 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.
acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States],3
(3) [the transferee is not a U.S. Person within the meaning of Rule 902(k) of Regulation S nor a Person acting for the account or benefit of a U.S. Person,]4
(4) no directed selling efforts have been made in contravention of the requirements of Rule 903 or Rule 904 of Regulation S, as applicable,
(5) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest being transferred as described above will be held with the Securities Depository through [Euroclear] [Clearstream]5,
[or (ii) with respect to transfers made in reliance on Rule 144 under the Securities Act, the Transferor does hereby certify that the Notes being transferred are eligible for resale by the Transferor pursuant to Rule 144(b)(1) under the Securities Act.]6
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer, the Indenture Trustee and the Transaction Manager.
| | |
| [Insert Name of Transferor] |
|
| By:______________________ |
| Name: |
| Title: |
| Dated: |
3 Insert one of these two provisions, which come from the definition of "offshore transaction" in Regulation S.
4 To be included only during the 40-day distribution compliance period.
5 Appropriate depository required for transfers prior to the end of the 40-day distribution compliance period.
6 To be included only after the 40-day distribution compliance period.
B-1-2
[***] = 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 B-2
Form Of Transfer Certificate For Exchange Or Transfer
From Regulation S Global Note
To Rule 144A Global Note
[DATE]
Wilmington Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Administration
Re: Sunnova Sol IV Issuer, LLC
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 27, 2022 (the "Indenture"), by and among Sunnova Sol IV Issuer, LLC (the "Issuer") and Wilmington Trust, National Association, as indenture trustee (in such capacity, the "Indenture Trustee"). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to US $[___] aggregate Outstanding Note Balance of Notes (the "Notes") which are held in the form of the Regulation S Global Note (CUSIP No. __________) with [Euroclear] [Clearstream]7 (Common Code No. __________) through the Securities Depository in the name of [insert name of transferor] (the "Transferor"). The Transferor has requested a transfer of such beneficial interest in the Notes for an interest in the Regulation 144A Global Note (CUSIP No. __________).
In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with (i) the transfer restrictions set forth in the Indenture, and (ii) (A) Rule 144A under the Securities Act to a transferee that the Transferor reasonably believes is purchasing the Notes for its own account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is a "QIB" ("QIB") within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any State or any other applicable jurisdiction or (B) to a QIB pursuant to another applicable exemption from the registration requirements under the Securities Act; provided that an Opinion of Counsel confirming the applicability of the exemption claimed shall have been delivered to the Issuer and the Indenture Trustee in a form reasonably acceptable to them.
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer, the Indenture Trustee and the Transaction Manager.
[Insert Name of Transferor]
7 Select appropriate depository.
B-2-1
[***] = 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.
By:______________________
Name:
Title:
Dated:
B-2-2
[***] = 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 B-3
Form of Transfer Certificate for Transfer
From Definitive Note
To Definitive Note
[DATE]
Wilmington Trust , National Association
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Administration
Re: Sunnova Sol IV Issuer, LLC
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 27, 2022 (the "Indenture"), by and among Sunnova Helios II Issuer, LLC (the "Issuer") and Wilmington Trust, National Association, as indenture trustee (in such capacity, the "Indenture Trustee"). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to US $[___] aggregate Outstanding Note Balance of Notes (the "Notes") which are held as Definitive Notes (CUSIP No. __________) in the name of [insert name of transferor] (the "Transferor"). The Transferor has requested a transfer of such beneficial interest in the Notes to [insert name of transferee] (the "Transferee").
In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with (i) the transfer restrictions set forth in the Indenture, and (ii) (A) Rule 144A under the Securities Act to a transferee that the Transferor reasonably believes is purchasing the Notes for its own account with respect to which the transferee exercises sole investment discretion and the transferee and any such account is a "QIB" ("QIB") within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any State or any other applicable jurisdiction, (B) pursuant to and in accordance with Rules 903 and 904 of Regulation S under the Securities Act or (C) pursuant to another applicable exemption from the registration requirements under the Securities Act; provided that an Opinion of Counsel confirming the applicability of the exemption claimed shall have been delivered to the Issuer and the Indenture Trustee in a form reasonably acceptable to them.
[If transfer is pursuant to Regulation S, add the following:
The Transferor hereby certifies that:
(1) the offer of the Notes was not made to a person in the United States,
B-3-1
[***] = 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) [at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States] [the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States]8,
(3) the transferee is not a U.S. Person within the meaning of Rule 902(k) of Regulation S nor a Person acting for the account or benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of the requirements of Rule 903 or Rule 904 of Regulation S, as applicable, and
(5) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.]
This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer, the Indenture Trustee and the Transaction Manager.
| | |
| [Insert Name of Transferor] |
|
| By:______________________ |
| Name: |
| Title: |
| Dated: |
8 Insert one of these two provisions, which come from the definition of "offshore transaction" in Regulation S.
B-3-2
[***] = 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 C
Sunnova Sol IV Issuer, LLC
Notice of Voluntary Prepayment
[DATE]
Wilmington Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attn: Corporate Trust Administration
Sunnova Energy Corporation
20 East Greenway Plaza, Suite 540
Houston, TX 77046
Attention: Chief Financial Officer
Ladies and Gentlemen:
Pursuant to Section 6.01 of the Indenture dated as of June 27, 2022 (the "Indenture"), between Sunnova Sol IV Issuer, LLC (the "Issuer") and Wilmington Trust, National Association (the "Indenture Trustee"), the Indenture Trustee is hereby directed to prepay in [whole][part] the Issuer's [_]% Solar Asset Backed Notes, Series 2022-1, Class [A/B], on [_______ __, 20__] (the "Voluntary Prepayment Date").
[FOR PREPAYMENT OF ALL OUTSTANDING NOTES IN FULL: On or prior to the Voluntary Prepayment Date, as required by Section 6.02 of the Indenture, the Issuer shall deposit into the Collection Account an amount equal to (i) the sum of (A) the Aggregate Outstanding Note Balance, (B) all accrued and unpaid interest thereon (including any Class B Deferred Interest, Post-ARD Additional Note Interest or Deferred Post-ARD Additional Note Interest), (C) the related Make Whole Amounts, if any, and (D) all amounts owed to the Indenture Trustee, the Transaction Manager, the Transaction Transition Manager and any other parties to the Transaction Documents, minus (ii) the sum of the amounts then on deposit in the Liquidity Reserve Account and the Supplemental Reserve Account (the "Prepayment Amount").]
[FOR PREPAYMENT IN PART OR PREPAYMENT OF ONE CLASS OF NOTES IN FULL: On or prior to the Voluntary Prepayment Date, as required by Section 6.02 of the Indenture, the Issuer shall deposit into the Collection Account, the sum of (i) the amount of outstanding principal of the Notes being prepaid, (ii) all accrued and unpaid interest thereon (including any Class B Deferred Interest, Post-ARD Additional Note Interest or Deferred Post-ARD Additional Note Interest), (iii) the related Make Whole Amount, if applicable and (iv) any other amounts owed under the Transaction Documents.]
On the specified Voluntary Prepayment Date, provided that the Indenture Trustee has received the Prepayment Amount, on or prior to such specified Voluntary Prepayment Date, the
C-1
[***] = 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.
Indenture Trustee is directed to (x) withdraw the Prepayment Amount from the Collection Account and disburse such amounts in accordance with the Priority of Payments (without giving effect to clauses (vi) through (ix) thereof) and (y) to the extent the Aggregate Outstanding Note Balance is prepaid and all other obligations of the Issuer under the Transaction Documents have been paid, release any remaining assets in the Trust Estate to, or at the direction of, the Issuer.
You are hereby instructed to provide all notices of prepayment required by Section 6.02 of the Indenture. All terms used but not defined herein have the meanings assigned to such terms in the Indenture.
[signature page follows]
C-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.
In Witness Whereof, the undersigned has executed this Notice of Voluntary Prepayment on the ___ day of _________, _____.
| | | | | |
| SUNNOVA SOL IV ISSUER, LLC, as Issuer |
|
| By |
| Name: |
| Title: |
C-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.
Exhibit D
RULE 15GA-1 INFORMATION
Reporting Period:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Asset
Class | Shelf | Series Name | CIK | Originator | [ ] No. | Servicer [ ]
No. | Outstanding Principal Balance | Repurchase Type | Indicate Repurchase Activity During the Reporting Period by Checkmark or by Date Reference (as applicable) |
| | | | | | | | | Subject to Demand | Repurchased or Replaced | Repurchased Pending | Demand in Dispute | Demand Withdrawn | Demand Rejected |
| | | | | | | | | | | | | | |
Terms and Definitions:
NOTE: Any date included on this report is subject to the descriptions below. Dates referenced on this report for this Transaction where the Servicer is not the Repurchase Enforcer (as defined below); availability of such information may be dependent upon information received from other parties.
References to "Repurchaser" shall mean the party obligated under the Transaction Documents to repurchase a [ ]. References to "Repurchase Enforcer" shall mean the party obligated under the Transaction Documents to enforce the obligations of any Repurchaser.
Outstanding Principal Balance: For purposes of this report, the Outstanding Principal Balance of a [ ] in this Transaction equals the remaining outstanding principal balance of the [ ] reflected on the distribution or payment reports at the end of the related reporting period, or if the [ ] has been liquidated prior to the end of the related reporting period, the final outstanding principal balance of the [ ] reflected on the distribution or payment reports prior to liquidation.
Subject to Demand: The date when a demand for repurchase is identified and coded by the Servicer or Indenture Trustee as a repurchase related request.
Repurchased or Replaced: The date when a [ ] is repurchased or replaced. To the extent such date is unavailable, the date upon which the Servicer or the Indenture Trustee obtained actual knowledge a [ ] has been repurchased or replaced.
D-1
[***] = 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.
Repurchase Pending: A [ ] is identified as "Repurchase Pending" when a demand notice is sent by the Indenture Trustee, as Repurchase Enforcer, to the Repurchaser. A [ ] remains in this category until (i) a [ ] has been Repurchased, (ii) a request is determined to be a "Demand in Dispute," (iii) a request is determined to be a "Demand Withdrawn," or (iv) a request is determined to be a "Demand Rejected."
With respect to the Servicer only, a [ ] is identified as "Repurchase Pending" on the date (y) the Servicer sends notice of any request for repurchase to the related Repurchase Enforcer, or (z) the Servicer receives notice of a repurchase request but determines it is not required to take further action regarding such request pursuant to its obligations under the applicable Transaction Documents. The [ ] will remain in this category until the Servicer receives actual knowledge from the related Repurchase Enforcer, Repurchaser, or other party, that the repurchase request should be changed to "Demand in Dispute", "Demand Withdrawn", "Demand Rejected", or "Repurchased."
Demand in Dispute: Occurs (i) when a response is received from the Repurchaser which refutes a repurchase request, or (ii) upon the expiration of any applicable cure period.
Demand Withdrawn: The date when a previously submitted repurchase request is withdrawn by the original requesting party. To the extent such date is not available, the date when the Servicer or the Indenture Trustee receives actual knowledge of any such withdrawal.
Demand Rejected: The date when the Indenture Trustee, as Repurchase Enforcer, has determined that it will no longer pursue enforcement of a previously submitted repurchase request. To the extent such date is not otherwise available, the date when the Servicer receives actual knowledge from the Indenture Trustee, as Repurchase Enforcer, that it has determined not to pursue a repurchase request.
In connection therewith, if Proceedings are commenced or threatened [in writing] in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such Proceedings.
Date: ____________, 20__9
Yours faithfully,
[ ]
By: _________________________________
Name:
Title:
9 To be dated no later than three Business Days following the receipt of any Demands by the Indenture Trustee.
D-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.
SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is made as of this 12th day of April, 2022, 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”), and 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 and the Facility Administrator, the “Parties”), and amends that certain Amended and Restated Credit Agreement, dated as of March 29, 2021, as amended by that certain First Amendment to Amended and Restated Credit Agreement, dated as of May 6, 2021, as further amended by that certain Second Amendment to Amended and Restated Credit Agreement, dated as of June 17, 2021, as further amended by that certain Third Amendment to Amended and Restated Credit Agreement, dated as of September 15, 2021, as further amended by that certain Fourth Amendment to Amended and Restated Credit Agreement, dated as of October 18, 2021, and as further amended by that certain Omnibus Amendment to Amended and Restated Credit Agreement and Facility Administration Agreement, dated as of October 29, 2021 (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, the Credit Agreement in effect immediately prior to the date hereof is hereby amended to delete the red, stricken text (indicated textually in the same manner as the following example: stricken text) and to add the blue, double underlined text (indicated in the same manner as the following example: underlined text) as set forth on Exhibit 10.11.4 hereto.
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):
(i)Amendment Documents. The Administrative Agent shall have received a copy of this Amendment duly executed by the parties hereto.
(ii)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
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
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).
(iii)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 (a) any of its organizational documents, (b) any agreement or other instrument which may be binding upon it, or (c) 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.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
2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
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.
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]
3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause 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
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Credit Suisse AG, New York Branch,
as Administrative Agent and as a Funding Agent
By: /s/Patrick Duggan
Name: Patrick Duggan
Title: Director
By: /s/Marcus DiBrito
Name: Marcus DiBrito
Title: Vice President
Credit Suisse AG, Cayman Islands Branch,
as a Lender
By: /s/Patrick Duggan
Name: Patrick Duggan
Title: Director
By: /s/Marcus DiBrito
Name: Marcus DiBrito
Title: Vice President
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause 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: Director
By: /s/Marcus DiBrito
Name: Marcus DiBrito
Title: Vice President
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Silicon Valley Bank, as a Funding Agent and as a Lender
By: /s/Mark Pallai
Name: Mark Pallai
Title: Vice President
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause 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: General Counsel
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit A
[See attached]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Amended and Restated Credit Agreement
dated as of March 29, 2021
among
Sunnova TEP Holdings, LLC,
as Borrower
Sunnova TE Management, LLC,
as Facility Administrator
Credit Suisse AG, New York Branch,
as Administrative Agent for the financial institutions
that may from time to time become parties hereto as Lenders
Lenders
from time to time party hereto
Funding Agents
from time to time party hereto
Wells Fargo Bank, National Association,
as Paying Agent
and
U.S. Bank National Association,
as Verification Agent
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Table of Contents
Section Heading Page
| | | | | |
ARTICLE I Certain Definitions | 1 |
Section 1.1. Certain Definitions | 1 |
Section 1.2. Computation of Time Periods | 2 |
Section 1.3. Construction | 2 |
Section 1.4. Accounting Terms | 2 |
ARTICLE II Amounts and Terms of the Advances | 2 |
Section 2.1. Establishment of the Credit Facility | 2 |
Section 2.2. The Advances | 3 |
Section 2.3. Use of Proceeds | 4 |
Section 2.4. Making the Advances | 4 |
Section 2.5. Fees | 7 |
Section 2.6. Reduction/Increase of the Commitments | 8 |
Section 2.7. Repayment of the Advances | 9 |
Section 2.8. Certain Prepayments | 13 |
Section 2.9. Mandatory Prepayments of Advances | 14 |
Section 2.10. [Reserved] | 15 |
Section 2.11. Interest | 15 |
Section 2.12. Breakage Costs; Liquidation Fees; Increased Costs; Capital Adequacy; Illegality; Additional Indemnifications | 15 |
Section 2.13. Payments and Computations | 18 |
Section 2.14. Payment on Non-Business Days | 19 |
Section 2.15. Inability to Determine Rates | 19 |
Section 2.16. Extension of the Scheduled Commitment Termination Date or Facility Maturity Date | 21 |
Section 2.17. Taxes | 21 |
Section 2.18. Request for Borrowing Exceeding Aggregate Commitment | 25 |
ARTICLE III Conditions of Lending and Closing | 27 |
Section 3.1. Conditions Precedent to Original Closing | 27 |
Section 3.2. Conditions Precedent to All Advances | 30 |
Section 3.3. Conditions Precedent to Acquisition of Additional Managing Members | 32 |
Section 3.4. Conditions Precedent to Amendment and Restatement | 32 |
ARTICLE IV Representations and Warranties | 35 |
Section 4.1. Representations and Warranties of the Borrower | 35 |
ARTICLE V Covenants | 40 |
Section 5.1. Affirmative Covenants | 40 |
-i-
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
| | | | | |
Section 5.2. Negative Covenants | 51 |
Section 5.3. Covenants Regarding the Solar Asset Owner Member Interests | 56 |
ARTICLE VI Events of Default | 58 |
Section 6.1. Events of Default | 58 |
Section 6.2. Remedies | 60 |
Section 6.3. Class B Buyout Option | 61 |
Section 6.4. Sale of Collateral | 63 |
ARTICLE VII The Administrative Agent and Funding Agents | 66 |
Section 7.1. Appointment; Nature of Relationship | 66 |
Section 7.2. Powers | 67 |
Section 7.3. Exculpatory Provisions | 67 |
Section 7.4. No Responsibility for Certain Matters | 68 |
Section 7.5. Employment of Administrative Agents and Counsel | 68 |
Section 7.6. The Administrative Agent’s Reimbursement and Indemnification | 69 |
Section 7.7. Rights as a Lender | 69 |
Section 7.8. Lender Credit Decision | 70 |
Section 7.9. Successor Administrative Agent | 70 |
Section 7.10. Transaction Documents; Further Assurances | 71 |
Section 7.11. Collateral Review | 72 |
Section 7.12. Funding Agent Appointment; Nature of Relationship | 72 |
Section 7.13. Funding Agent Powers | 72 |
Section 7.14. Funding Agent Exculpatory Provisions | 73 |
Section 7.15. No Funding Agent Responsibility for Certain Matters | 73 |
Section 7.16. Funding Agent Employment of Agents and Counsel | 74 |
Section 7.17. Funding Agent’s Reimbursement and Indemnification | 74 |
Section 7.18. Funding Agent Rights as a Lender | 75 |
Section 7.19. Funding Agent Lender Credit Decision | 75 |
Section 7.20. Funding Agent Successor Funding Agent | 76 |
Section 7.21. Funding Agent Transaction Documents; Further Assurances | 76 |
Section 7.22. Lender Relationships | 77 |
ARTICLE VIII Administration and Servicing of the Collateral | 78 |
Section 8.1. Management Agreements/Servicing Agreements/Facility Administration Agreement | 78 |
Section 8.2. Accounts | 80 |
Section 8.3. Adjustments | 90 |
ARTICLE IX The Paying Agent | 90 |
Section 9.1. Appointment | 90 |
Section 9.2. Representations and Warranties | 90 |
-ii-
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
| | | | | |
Section 9.3. Limitation of Liability of the Paying Agent | 91 |
Section 9.4. Certain Matters Affecting the Paying Agent | 91 |
Section 9.5. Indemnification | 97 |
Section 9.6. Successor Paying Agent | 98 |
ARTICLE X Miscellaneous | 99 |
Section 10.1. Survival | 99 |
Section 10.2. Amendments, Etc. | 99 |
Section 10.3. Notices, Etc. | 100 |
Section 10.4. No Waiver; Remedies | 100 |
Section 10.5. Indemnification | 100 |
Section 10.6. Costs, Expenses and Taxes | 101 |
Section 10.7. Right of Set-off; Ratable Payments; Relations Among Lenders | 102 |
Section 10.8. Binding Effect; Assignment | 103 |
Section 10.9. Governing Law | 106 |
Section 10.10. Jurisdiction | 106 |
Section 10.11. Waiver of Jury Trial | 106 |
Section 10.12. Section Headings | 107 |
Section 10.13. Tax Characterization | 107 |
Section 10.14. Execution | 107 |
Section 10.15. Limitations on Liability | 107 |
Section 10.16. Confidentiality | 107 |
Section 10.17. Limited Recourse | 109 |
Section 10.18. Customer Identification - USA Patriot Act Notice | 109 |
Section 10.19. Paying Agent Compliance with Applicable Anti-Terrorism and Anti-Money Laundering Regulations | 110 |
Section 10.20. Non-Petition | 110 |
Section 10.21. No Recourse | 110 |
Section 10.22. [Reserved] | 110 |
Section 10.23. Additional Paying Agent Provisions | 110 |
Section 10.24. Acknowledgement Regarding Any Supported QFCs | 111 |
Section 10.25. Effect of Amendment and Restatement | 111 |
-iii-
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule I — Eligibility Criteria
Schedule II — The Collection Account, the Supplemental Reserve Account, the Liquidity Reserve Account, the SAP Lockbox Account, the SAP Revenue Account, the Takeout Transaction Account and the Borrower’s Account
Schedule III — [Reserved]
Schedule IV — Scheduled Hedged SREC Payments
Schedule V — Scheduled Host Customer Payments
Schedule VI — Scheduled PBI Payments
Schedule VII — Scheduled Managing Member Distributions
Schedule VIII — Tax Equity Financing Documents
Schedule IX — SAP Financing Documents
Schedule X — SAP NTP Financing Documents
Schedule XI — Puerto Rico Non-Storage Solar Assets
Schedule XII — Special Financing Fund Provisions
Schedule XIII — Approved Tax Equity Partners
Exhibit A — Defined Terms
Exhibit B-1 — Form of Borrowing Base Certificate
Exhibit B-2 — Form of Notice of Borrowing
Exhibit C — [Reserved]
Exhibit D-1 — Form of Class A Loan Note
Exhibit D-2 — Form of Class B Loan Note
Exhibit E — Commitments
Exhibit F — Form of Assignment Agreement
Exhibit G — Form of Solar Service Agreement
Exhibit H — Form of Notice of Delayed Funding
Exhibit I — Delayed Funding Notice
Exhibit J — Form of Underwriting and Reassignment Credit Policy
Exhibit K — Disqualified Lenders
-iv-
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Amended and Restated Credit Agreement
This Amended and Restated Credit Agreement (this “Agreement”) is entered into as of March 29, 2021, by and among Sunnova TEP Holdings, LLC, a Delaware limited liability company (the “Borrower”), Sunnova TE Management, LLC, a Delaware limited liability company, as Facility Administrator (in such capacity, the “Facility Administrator”), the financial institutions from time to time parties hereto (each such financial institution (including any Conduit Lender), a “Lender” and collectively, the “Lenders”), each Funding Agent representing a group of Lenders, Credit Suisse AG, New York Branch (“CSNY”), as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders, Wells Fargo Bank, National Association, not in its individual capacity, but solely as Paying Agent (as defined below), and U.S. Bank National Association, as Verification Agent (as defined below).
Recitals
Whereas, on September 6, 2019, (the “Original Closing Date”) the parties hereto entered into that certain Credit Agreement, 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, as further amended by that certain Eighth Amendment to Credit Agreement dated as of October 28, 2020, as further amended by that certain Ninth Amendment to Credit Agreement dated as of November 9, 2020, and as further amended by that certain Tenth Amendment to Credit Agreement, dated as of January 29, 2021 (the “Original Credit Agreement”), wherein the Lenders provided loans to Borrower in connection with its ownership interest in the Solar Asset Owner Member Interests; and
Whereas, parties hereto desire to amend and restate, without novation, the Original Credit Agreement upon the terms and subject to the conditions set forth herein.
Now, Therefore, in consideration of the premises and the mutual agreements contained herein, the parties hereto agree as follows:
Article I
Certain Definitions
Section 1.1.Certain Definitions
. Capitalized terms used but not otherwise defined herein have the meanings given to them in Exhibit A attached hereto.
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 1.2.Computation of Time Periods
. In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each means “to but excluding” and the word “through” means “through and including.” Any references to completing an action on a non-Business Day (including any payments), shall be automatically extended to the next Business Day
Section 1.3.Construction
. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (A) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth therein), (B) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (C) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (D) all references herein to Sections, Schedules and Exhibits shall be construed to refer to Sections of, and Schedules and Exhibits to, this Agreement, (E) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real property, tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and interests in any of the foregoing, (F) any reference to a statute, rule or regulation is to that statute, rule or regulation as now enacted or as the same may from time to time be amended, re-enacted or expressly replaced and (G) “or” is not exclusive. References to “Managing Member” in this Agreement shall be deemed to include all entities comprising such defined term unless the context requires otherwise. “References to “Manager” in this Agreement shall be deemed to include all entities comprising such defined term unless the context requires otherwise.
Section 1.4.Accounting Terms
. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited financial statements, except as otherwise specifically prescribed herein.
Article II
Amounts and Terms of the Advances
Section 2.1. Establishment of the Credit Facility
-2-
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
. On the Original Closing Date, and subject to and upon the terms and conditions set forth in this Agreement and the other Transaction Documents, the Administrative Agent and the Lenders agreed to establish the credit facility set forth in this Agreement for the benefit of the Borrower.
Section 2.2. The Advances
. (A) Subject to the terms and conditions set forth herein, each Non-Conduit Lender in a Class A Lender Group agrees, severally and not jointly, to make one or more loans (each such loan, a “Class A Advance”) to the Borrower, from time to time during the Availability Period, in an amount, for each Class A Lender Group, equal to its Class A Lender Group Percentage of the aggregate Class A Advances requested by the Borrower pursuant to Section 2.4; provided that the Class A Advances made by any Class A Lender Group shall not exceed its Class A Lender Group Percentage of the lesser of (i) the Class A Aggregate Commitment effective at such time and (ii) the Class A Borrowing Base at such time; provided, further, that a Non-Conduit Lender in a Class A Lender Group shall be deemed to have satisfied its obligation to make a Class A Advance hereunder (solely with respect to such Class A Advance) to the extent any Conduit Lender in such Lender Group funds such Class A Advance in place of such Non-Conduit Lender in accordance with this Agreement, it being understood that such Conduit Lender may fund a Class A Advance in its sole discretion.
(A)Subject to the terms and conditions set forth herein, each Non-Conduit Lender in a Class B-I Lender Group agrees, severally and not jointly, to make one or more loans (each such loan, a “Class B-I Advance”) to the Borrower, from time to time during the Availability Period, in an amount, for each Class B-I Lender Group, equal to its Class B-I Lender Group Percentage of the aggregate Class B-I Advances requested by the Borrower pursuant to Section 2.4; provided that the Class B-I Advances made by any Class B-I Lender Group shall not exceed its Class B-I Lender Group Percentage of the lesser of (i) the Class B-I Aggregate Commitment effective at such time and (ii) the Class B-I Borrowing Base at such time; provided, further, that a Non-Conduit Lender in a Class B-I Lender Group shall be deemed to have satisfied its obligation to make a Class B-I Advance hereunder (solely with respect to such Class B-I Advance) to the extent any Conduit Lender in such Lender Group funds such Class B-I Advance in place of such Non-Conduit Lender in accordance with this Agreement, it being understood that such Conduit Lender may fund a Class B-I Advance in its sole discretion.
(B)Subject to the terms and conditions set forth herein (including the limitations set forth in Section 2.4(B)) each Non-Conduit Lender in a Class B-II Lender Group agrees, severally and not jointly, to make one or more loans (each such loan, a “Class B-II Advance”) to the Borrower, from time to time during the Availability Period, in an amount, for each Class B-II Lender Group, equal to its Class B-II Lender Group Percentage of the aggregate Class B-II Advances requested by the Borrower pursuant to Section 2.4; provided, that the Class B-II Advances made by any Class B-II Lender Group shall not exceed its Class B-II Lender Group Percentage of the lesser of (i) the Class B-II Aggregate Commitment effective at such time and (ii) the Class B-II Borrowing Base at such time; provided, further, that a Non-Conduit Lender in a Class B-II Lender Group shall be deemed to have satisfied its obligation to make a Class B-II
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Advance hereunder (solely with respect to such Class B-II Advance) to the extent any Conduit Lender in such Lender Group funds such Class B-II Advance in place of such Non-Conduit Lender in accordance with this Agreement, it being understood that such Conduit Lender may fund a Class B-II Advance in its sole discretion.
Section 2.3. Use of Proceeds
. Proceeds of the Advances shall only be used by the Borrower to (i) purchase Solar Assets and/or Solar Asset Owner Member Interests from TEP Resources under the Sale and Contribution Agreement, (ii) make deposits into the Liquidity Reserve Account (up to the Liquidity Reserve Account Required Balance), (iii) make deposits into the Supplemental Reserve Account (up to the Supplemental Reserve Account Required Balance), (iv) make distributions to the Parent permitted hereunder and (v) pay certain fees and expenses incurred in connection with establishment of the credit facility set forth in this Agreement.
Section 2.4. Making the Advances
. (A) Except as otherwise provided herein, the Borrower may request that the Lenders make Advances to the Borrower by the delivery to the Administrative Agent, each Funding Agent, the Paying Agent and, so long as it remains a Lender hereunder, the CS Conduit Lender, not later than 1:00 P.M. (New York City time) two (2) Business Days prior to the proposed Funding Date of a written notice of such request substantially in the form of Exhibit B-2 attached hereto (each such notice, a “Notice of Borrowing”) together with a duly completed Borrowing Base Certificate signed by a Responsible Officer of the Borrower. Any Notice of Borrowing or Borrowing Base Certificate received by the Administrative Agent, the Funding Agents and the Paying Agent after the time specified in the immediately preceding sentence shall be deemed to have been received by the Administrative Agent, the Funding Agents and the Paying Agent on the next Business Day, and to the extent that results in the proposed Funding Date being earlier than two (2) Business Days after the date of delivery of such Notice of Borrowing, then the date specified in such Notice of Borrowing as the proposed Funding Date of an Advance shall be deemed to be the Business Day immediately succeeding the proposed Funding Date of such Advance specified in such Notice of Borrowing. The proposed Funding Date specified in a Notice of Borrowing shall be no earlier than two (2) Business Days after the date of delivery of such Notice of Borrowing and may be up to a maximum of thirty (30) days after the date of delivery of such Notice of Borrowing. Unless otherwise provided herein, each Notice of Borrowing shall be irrevocable. The aggregate principal amount of the Class A Advance and Class B Advance requested by the Borrower for any Funding Date shall not be less than the lesser of (x) $1,000,000 and (y) the remaining amount necessary in order for the Borrower to fully utilize all available Commitments. If the Administrative Agent delivers a written notice (including by electronic mail) to the Borrower contesting the Borrower’s calculations or any statement within such Notice of Borrowing, it shall promptly inform the Borrower. The Borrower may then deliver an amended Notice of Borrowing to the Administrative Agent, the Funding Agents and the Paying Agent or, by written notice, rescind the Notice of Borrowing.
(A)The Notice of Borrowing shall specify (i) the aggregate amount of Class A Advances requested together with the allocated amount of Class A Advances to be paid by each Class A Lender Group based on its respective Class A Lender Group Percentage,
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(ii)(a) the aggregate amount of Class B-I Advances requested together with the allocated amount of Class B-I Advances to be paid by each Class B-I Lender Group based on its respective Class B-I Lender Group Percentage, or (b) the aggregate amount of Class B-II Advances requested together with the allocated amount of Class B-II Advances to be paid by each Class B-II Lender Group based on its respective Class B-II Lender Group Percentage and (iii) the Funding Date. The amount of Class A Advances to Class B Advances requested shall be determined on a pro rata basis based on the Class A Borrowing Base and Class B Aggregate Borrowing Base as of the proposed Funding Date. With respect to any Class B Advances requested, the Borrower shall only request and is only permitted to request Class B-II Advances if the amount of outstanding Class B-I Advances is equal to the Class B-I Commitment. Each Funding Agent may, in its sole discretion, allocate any requested Advances among the Lenders in its Lender Group.
(B)With respect to the Advances to be made on the Original Closing Date, each Lender shall pay the amount of its Advance by wire transfer of such funds to the Borrower’s Account no later than 4:00 P.M. (New York City time) on the Original Closing Date.
(C)With respect to the Advances to be made on any Funding Date, other than the initial Advance to be made on the Original Closing Date, upon a determination by the Administrative Agent that all conditions precedent to the Advances to be made on such Funding Date set forth in Article III have been satisfied or otherwise waived, each Lender shall fund the amount of its Advance by wire transfer of such funds in accordance with the Borrower’s written instructions initiated no later than 2:00 P.M. (New York City time) on such Funding Date.
(D)Notwithstanding the foregoing, if any Non-Conduit Lender who shall have previously notified the Borrower in writing, in substantially the form of Exhibit H hereto, that it has incurred any external cost, fee or expense directly related to and as a result of the “liquidity coverage ratio” under Basel III in respect of its Commitment hereunder or any liquidity agreement between such Non-Conduit Lender and the Conduit Lender, or its interest in the Advances, such Non-Conduit Lender may, upon receipt of a Notice of Borrowing pursuant to Section 2.4(A), notify the Borrower in writing by 5:00 P.M. (New York City time) two (2) Business Days prior to the Funding Date specified in such Notice of Borrowing, in substantially the form of Exhibit I hereto (a “Delayed Funding Notice”), of its intent to fund (or, if applicable and if such Conduit Lender so agrees in its sole discretion, have its Conduit Lender, if applicable, fund all or part of) its allocated amount of the related Advance in an amount that would, if combined with all other requested Advances within the past thirty-five (35) days, exceed $20,000,000 (such amount, the “Delayed Amount”) on a Business Day that is on or before the thirty-fifth (35th) day following the date of delivery of such Non-Conduit Lender of such Delayed Funding Notice (the “Delayed Funding Date”) rather than on the date specified in such Notice of Borrowing. If any Non-Conduit Lender provides a Delayed Funding Notice to the Borrower following the delivery by the Borrower of a Notice of Borrowing, the Borrower may revoke such Notice of Borrowing by delivering written notice of the same to the
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Administrative Agent and the Funding Agents by 12:00 P.M. (New York city time) on the Business Day preceding the related Funding Date. No Non-Conduit Lender that has provided a Delayed Funding Notice in respect of an Advance (a “Delayed Funding Lender”) shall be considered to be in default of its obligation to fund its Delayed Amount pursuant to Section 2.4(D) hereunder unless and until it has failed to fund the Delayed Amount on or before the Delayed Funding Date. A Delayed Funding Lender is not obliged to fund until thirty-five (35) days have elapsed since the funding request. For the avoidance of doubt, a Delayed Funding Lender shall be required to fund its Delayed Amount regardless of the occurrence of an Amortization Event, Event of Default, Potential Amortization Event or Potential Default which occurs during the period from and including the related Funding Date to and including the related Delayed Funding Date, unless such Amortization Event, Event of Default, Potential Amortization Event or Potential Default relates to an Insolvency Event with respect to the Borrower.
(E)If (i) one or more Delayed Funding Lenders provide a Delayed Funding Notice to the Borrower in respect of a Notice of Borrowing and (ii) the Borrower shall not have revoked the Notice of Borrowing prior to the Business Day preceding such Funding Date, the Administrative Agent shall, by no later than 12:00 P.M. (New York City time) on the Business Day preceding such Funding Date, direct each Lender Group and each Non-Conduit Lender that is not a Delayed Funding Lender with respect to such Funding Date (each a “Non-Delayed Funding Lender”) to fund an additional portion of such Advance on such Funding Date equal to such Non-Delayed Funding Lender’s proportionate share (based upon such Non-Delayed Funding Lender’s Commitment relative to the sum of the Commitments of all Non-Delayed Funding Lenders) of the aggregate Delayed Amounts with respect to such Funding Date; provided, that in no event shall a Non-Delayed Funding Lender be required to fund any amounts in excess of its Commitment. Subject to Section 2.4(D), in the case of a Non-Delayed Funding Lender that is a Non-Conduit Lender, such Non-Conduit Lender hereby agrees, or, in the case of a Non-Delayed Funding Lender that is a Lender Group, the Conduit Lender in such Lender Group may agree, in its sole discretion, and the Non-Conduit Lenders in such Lender Group hereby agree, to fund such portion of the Advance on such Funding Date.
(F)After the Non-Delayed Funding Lenders fund a Delayed Amount on any Funding Date in accordance with Section 2.4(F), the Delayed Funding Lender in respect of such Delayed Amount will be obligated to fund an amount equal to the excess, if any, of (a) such Delayed Amount over (b) the amount, if any, by which the portion of any principal distribution amount paid to such Non-Delayed Funding Lenders pursuant to Section 2.7 or any decrease to the outstanding principal balance made in accordance with Section 2.8, on any date during the period from and including such Funding Date to but excluding the Delayed Funding Date for such Delayed Amount, was greater than what it would have been had such Delayed Amount been funded by such Delayed Funding Lender on such Funding Date (the “Delayed Funding Reimbursement Amount”) with respect to such Delayed Amount on or before its Delayed Funding Date, irrespective of whether the Borrower would be able to satisfy the conditions set forth in Section 3.2(A) to an Advance, in an amount equal to such Delayed Funding Reimbursement Amount on
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such Delayed Funding Date. Such Delayed Funding Lender shall fund such Delayed Funding Reimbursement Amount on such Delayed Funding Date by paying such amount to the Administrative Agent in immediately available funds, and the Administrative Agent shall distribute such funds to each such Non-Delayed Funding Lender, pro rata based on the relative amount of such Delayed Amount funded by such Non-Delayed Funding Lender on such Funding Date pursuant to Section 2.4(F).
(G)Notwithstanding anything to the contrary set forth in this Agreement, the Class B-II Lenders shall be deemed to satisfy their obligation to timely fund a Class B-II Advance so long as the Class B-II Lenders funds such Class B-II Advance by the Business Day immediately succeeding any Funding Date.
Section 2.5. Fees
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(A)Facility Administrator Fee. Subject to the terms and conditions of the Facility Administration Agreement, the Borrower shall pay the Facility Administrator Fee to the initial Facility Administrator and after the resignation or replacement of the initial Facility Administrator, the Borrower shall pay the Facility Administrator Fee to a Successor Facility Administrator appointed in accordance with the Facility Administration Agreement.
(B)Verification Agent Fee. Subject to the terms and conditions of the Verification Agent Agreement, the Borrower shall pay to the Verification Agent the Verification Agent Fee.
(C)Paying Agent Fee. Subject to the terms and conditions of the Paying Agent Fee Letter, the Borrower shall pay to the Paying Agent the Paying Agent Fee.
(D)Unused Line Fees. Solely during the Availability Period, the Borrower agrees to pay to each Funding Agent, for the benefit of the Non-Conduit Lender in its Lender Group and as consideration for the Commitment of such Non-Conduit Lender in such Lender Group unused line fees in Dollars (the “Unused Line Fee”) for the period from the Original Closing Date to the last day of the Availability Period, computed as (a) the Unused Line Fee Percentage multiplied by (b) the average Unused Portion of the Commitments with respect to such Lender Group during a calendar quarter. Accrued Unused Line Fees shall be due and payable in arrears (from Distributable Collections as set forth and in the order of priority established pursuant to Section 2.7) on the Payment Date immediately following the last day of the applicable calendar quarter for which such fee was calculated and on the last day of the Availability Period.
(E)Payment of Fees. The fees set forth in Section 2.5(A), (B), (C) and (D) shall be payable on each Payment Date by the Borrower from Distributable Collections as set forth in and in the order of priority established pursuant to Section 2.7(B).
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Notwithstanding anything to the contrary herein or in any Transaction Document, the fees referred to in this Section 2.5 shall not constitute “Confidential Information.”
(F)Amendment Fee. Commencing on December 2, 2019, and thereafter, the Borrower shall pay to the Administrative Agent a fee of $10,000 in connection with each amendment (or group of related amendments effective of the same date) to the Transaction Documents requested by it, which fee shall be in addition to the reimbursement of costs and expenses associated therewith that is provided for in Section 10.6 hereof. For the avoidance of doubt, any consent to a Proposed Form delivered by the Administrative Agent pursuant to Section 5.1(X) shall not give rise to the obligation to pay the amendment fee set forth in this Section 2.5(F) so long as no amendment to any Transaction Document is required in connection with such Proposed Form as determined by the Administrative Agent in its sole discretion.
(G)Invested Capital Payment Amount. The Borrower shall pay the Invested Capital Payment Amount on the Invested Capital Payment Date.
Section 2.6. Reduction/Increase of the Commitments
.
(A)The Borrower may, on any Business Day, upon written notice given to the Administrative Agent and each of the Funding Agents not later than ten (10) Business Days prior to the date of the proposed action (which notice may be conditioned upon any event), terminate in whole or reduce in part, on a pro rata basis based on its Class A Lender Group Percentage, Class B-I Lender Group Percentage or Class B-II Lender Group Percentage, as applicable, the Unused Portion of the Commitments with respect to each Lender Group (and on a pro rata basis with respect to each Non-Conduit Lender in such Lender Group); provided, that (i) any partial reduction of the Class B Commitments shall be applied first to the Class B-II Commitments (on a pro rata basis with respect to each Non-Conduit Lender in each Class B-II Lender Group), until the Class B-II Commitments shall have been reduced to zero and thereafter shall be applied to the Class B-I Commitments (on a pro rata basis with respect to each Non-Conduit Lender in each Class B-I Lender Group), (ii) any partial reduction shall be in the amount of $1,000,000 or an integral multiple thereof and (iii) any Unused Portion of the Commitments so reduced may not be increased again without the written consent of the related Non-Conduit Lenders in such Lender Group.
(B)The Borrower may, on any Business Day upon written notice given to the Administrative Agent and each of the Funding Agents, request an increase, on a pro rata basis based on its Class A Lender Group Percentage, Class B-I Lender Group Percentage or Class B-II Lender Group Percentage, as applicable, of the Commitments of the Non-Conduit Lender(s) in each Lender Group; provided, that any increase shall be at least equal to $5,000,000 or an integral multiple thereof but shall in no event cause the Aggregate Commitment to exceed the Maximum Facility Amount, the Class A Aggregate Commitment to exceed the Class A Maximum Facility Amount, the Class B-I Aggregate
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Commitment to exceed the Class B-I Maximum Facility Amount or the Class B-II Aggregate Commitment to exceed the Class B-II Maximum Facility Amount. Each Non-Conduit Lender shall, within five (5) Business Days of receipt of such request, notify the Administrative Agent and the Administrative Agent shall in turn notify the Borrower in writing (with copies to the other members of the applicable Lender Group) whether or not each Non-Conduit Lender has, in its sole discretion, agreed to increase its Commitment. If a Non-Conduit Lender does not send any notification to the Administrative Agent within such five (5) Business Day period, such Non-Conduit Lender shall be deemed to have declined to increase its Commitment. Any increase in Commitments agreed to pursuant to this Section 2.6(B) may be reduced by a Non-Conduit Lender, at any time, upon five Business Days’ written notice to the Borrower from the Administrative Agent (with copies to the other members of the applicable Lender Group) setting forth the amount of such reduction; provided, however, that such Commitment may not be reduced to an amount less than such Non-Conduit Lender’s initial Commitment on the Original Closing Date (if such reduction is prior to a Takeout Transaction) or to an amount less than such Non-Conduit Lender’s Commitment on or after a Takeout Transaction (if such reduction is on or after a Takeout Transaction), but may be reduced to an amount that is less than the then Aggregate Outstanding Advances.
Section 2.7. Repayment of the Advances
. (A) Notwithstanding any other provision to the contrary, the outstanding principal balance of the Advances and the other Obligations owing under this Agreement, together with all accrued but unpaid interest thereon, shall be due and payable in full, if not due and payable earlier, on the Maturity Date. For the avoidance of doubt, amounts borrowed and repaid hereunder may be reborrowed in accordance with the terms hereof.
(A)On any Business Day, the Borrower may direct the Paying Agent to, and on each Payment Date, the Borrower shall direct the Paying Agent to, subject to Section 2.7(D), apply all amounts on deposit in the Collection Account (including (x)(1)(a) Collections deposited therein during the related Collection Period and (b) any amounts due during the related Collection Period but deposited into the Collection Account within ten (10) Business Days after the end of such Collection Period that the Facility Administrator (at its option) has determined (with written notice thereof to the Paying Agent (with a copy to the Administrative Agent, each Lender and the Borrower)) to be treated as if such amounts were on deposit in the Collection Account at the end of such Collection Period, (2) amounts deposited therein from the Liquidity Reserve Account or the Supplemental Reserve Account, in each case in accordance with Section 8.2 or (3) any amounts deposited therein by a Seller or TEP Resources pursuant to the Sale and Contribution Agreement or the Parent pursuant to the Parent Guaranty, respectively, but (y) excluding Collections deposited therein in the current Collection Period except as necessary to make distributions pursuant to clauses (i) through (iii) of this Section or as otherwise determined by the Facility Administrator pursuant to clause (x)(1)(a) above) (the “Distributable Collections”), amounts on deposit in the Takeout Transaction Account on such Business Day representing net proceeds of any Takeout Transaction and any other amounts paid or received from the Borrower, including pursuant to Sections 2.11, 2.12(A) and 2.13, as applicable, to the Obligations in the following order of priority
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based solely on information contained in (I) with respect to any Payment Date, the Facility Administrator Report for such related Collection Period or, if no Facility Administrator Report is available, solely as directed in writing by the Administrative Agent or (II) with respect to any other Business Day, including the date of closing for a Takeout Transaction, on which the Borrower requests an application and distribution of funds in the Collection Account (and/or Takeout Transaction Account, if applicable, or other amounts paid or received from the Borrower), an interim Facility Administrator Report or such other report in form and substance reasonably satisfactory to the Administrative Agent (as confirmed by the Administrative Agent via an email sent to the Paying Agent) and the Paying Agent that is delivered by the Facility Administrator (which the Facility Administrator hereby agrees to deliver at the request of the Administrative Agent):
(i)first (Service Providers), ratably, (a) to the Paying Agent (1) the Paying Agent Fee and (2)(x) any accrued and unpaid Paying Agent Fees with respect to prior Payment Dates plus (y) out-of-pocket expenses and indemnities of the Paying Agent incurred and not reimbursed in connection with its obligations and duties under this Agreement; provided that the aggregate payments to the Paying Agent reimbursement for clauses (2)(y) will be limited to $50,000 per calendar year so long as no Event of Default or Amortization Event has occurred pursuant to this Agreement (unless otherwise approved by the Majority Lenders); (b) to the Facility Administrator, the Facility Administrator Fee, and (c) to the Verification Agent, the Verification Agent Fee;
(ii) second (Hedge Agreement Payments, Class A Interest Distribution Amount and Unused Line Fee), on a pari passu basis (a) to the Qualifying Hedge Counterparty under each Hedge Agreement, the payment of all amounts which are due and payable by the Borrower to such Qualifying Hedge Counterparty on such date (other than fees, expenses, termination payments, indemnification payments, tax payments or other similar amounts), pursuant to the terms of the applicable Hedge Agreement (net of all amounts which are due and payable by such Qualifying Hedge Counterparty to the Borrower on such date pursuant to the terms of such Hedge Agreement), and (b)(I) first, to each Class A Funding Agent, for the benefit of and on behalf of the Class A Lenders in its Class A Lender Group, the Class A Interest Distribution Amount then due (allocated among the Class A Lender Groups pro rata based on the outstanding principal amount of the Class A Advances attributable to such Class A Lender Group) until paid in full and (II) second, to each Class A Funding Agent, for the benefit of and on behalf of the related Non-Conduit Lender(s) in its Class A Lender Group, the payment of the Unused Line Fee then due (allocated among the Class A Lender Groups pro rata based on the outstanding principal amount of the Class A Advances attributable to such Class A Lender Group) until paid in full;
(iii) third (Class B Interest Distribution Amount (No Event of Default) and Unused Line Fee), so long as no Event of Default has occurred and is continuing, (a) first, to each Class B Funding Agent, for the benefit of and on behalf of the Class B Lenders in its Class B Lender Group, the Class B Interest Distribution Amount then due (allocated among the Class B Lender Groups based on their Class B Lender Group Percentages) until paid in full and (b) second, to each Class B Funding
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Agent, for the benefit of and on behalf of the related Non-Conduit Lender(s) in its Class B Lender Group, the payment of the Unused Line Fee then due (allocated among the Class B Lender Groups based on their Class B Lender Group Percentages) until paid in full;
(iv) fourth (Liquidity Reserve Account and Supplemental Reserve Account), (a) first, if the amount on deposit in the Liquidity Reserve Account is less than the Liquidity Reserve Account Required Balance and no Amortization Event has occurred and is continuing, to the Liquidity Reserve Account until the amount on deposit in the Liquidity Reserve Account shall equal the Liquidity Reserve Account Required Balance and (b) second to the Supplemental Reserve Account, the Supplemental Reserve Account Deposit, if any;
(v)fifth (Availability Period Borrowing Base Deficiency), during the Availability Period (a) first, to the extent required under Section 2.9 in connection with a Class A Borrowing Base Deficiency, to each Class A Funding Agent, on behalf of the Class A Lenders in its Class A Lender Group, for the prepayment and reduction of the outstanding principal amount of any Class A Advances, an amount equal to the amount necessary to cure such Class A Borrowing Base Deficiency (allocated ratably among the Class A Lender Groups pro rata based on the outstanding principal amount of the Class A Advances attributable to such Class A Lender Group) and (b) second, to the extent required under Section 2.9 in connection with a Class B-I Borrowing Base Deficiency, Class B-II Borrowing Base Deficiency or Class B Aggregate Borrowing Base Deficiency, as applicable, to each applicable Class B Funding Agent, on behalf of the Class B Lenders in its Class B Lender Group, for the prepayment and reduction of the outstanding principal amount of any applicable Class B Advances, an amount equal to the amount necessary to cure such Class B-I Borrowing Base Deficiency, Class B-II Borrowing Base Deficiency or Class B Aggregate Borrowing Base Deficiency, as applicable (allocated ratably among the applicable Class B-I Lender Groups, Class B-II Lender Groups or Class B Lender Groups, as applicable, based on their Class B-I Lender Group Percentages, Class B-II Lender Group Percentages or Class B Lender Group Percentages, as applicable);
(vi) sixth (Qualifying Hedge Counterparty Breakage and Amortization Period Class A Lender Obligations), on a pari passu basis (a) to the Administrative Agent for the account of the Hedge Counterparty under each Hedge Agreement, all payments which arose due to a default by the Borrower or due to any prepayments of amounts under such Hedge Agreement and all fees, expenses, indemnification payments, tax payments or other amounts (to the extent not previously paid hereunder) which are due and payable by the Borrower to such Hedge Counterparty on such date, pursuant to the terms of the applicable Hedge Agreement (net of all amounts which are due and payable by such Qualifying Hedge Counterparty to the Borrower on such date pursuant to the terms of such Hedge Agreement) and (b) during the Amortization Period, to the Administrative Agent and each Class A Funding Agent on behalf of itself and the Class A Lenders in its related Class A Lender Group, all remaining amounts, for application to the principal balance of the outstanding Class A Advances and the aggregate amount of all Obligations then due from the Borrower to the Administrative Agent, such Class A
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Funding Agent and each such Class A Lender in the Class A Lender Group (allocated among such Obligations as selected by the Administrative Agent; provided that payment of the principal balance of outstanding Class A Advances shall be allocated ratably among the Class A Lender Groups pro rata based on the outstanding principal amount of the Class A Advances attributable to such Class A Lender Group) until paid in full;
(vii)seventh (Class B Interest Distribution Amount (Event of Default)), if an Event of Default has occurred and is continuing, to each Class B Funding Agent, for the benefit of and on behalf of the Class B Lenders in its Class B Lender Group, the Class B Interest Distribution Amount then due (allocated among the Class B Lender Groups based on their Class B Lender Group Percentages) until paid in full;
(viii)eighth (Amortization Period Class B Lender Obligations; Invested Capital Payment Amount), first (i) during the Amortization Period, to each Class B Funding Agent on behalf of itself and the Class B Lenders in its related Class B Lender Group, all remaining amounts, for application to the payment of the principal balance of the outstanding Class B Advances and the aggregate amount of all Obligations then due from the Borrower to such Class B Funding Agent and each such Class B Lender in the Class B Lender Group (allocated among such Obligations as selected by the Class B Funding Agents; provided that payment of the principal balance of outstanding Class B Advances shall be allocated ratably among the Class B Lender Groups based on their Class B Lender Group Percentages) until paid in full and second (ii) on the Invested Capital Payment Date, to the Class B-I Funding Agent, on behalf of the Class B-I Lenders in its Class B-I Lender Group, the Invested Capital Payment Amount;
(ix)ninth (Class A Additional Interest Distribution Amount and Class B Additional Interest Distribution Amount), first, to each Class A Funding Agent, for the benefit of and on behalf of the Class A Lenders in its Class A Lender Group, the Class A Additional Interest Distribution Amount then due (allocated among the Class A Lender Groups pro rata based on the outstanding principal amount of the Class A Advances attributable to such Class A Lender Group) until paid in full and second, to each Class B Funding Agent, for the benefit of and on behalf of the Class B Lenders in its Class B Lender Group, the Class B Additional Interest Distribution Amount then due (allocated among the Class B Lender Groups based on their Class B Lender Group Percentages);
(x)tenth (Lender Fees and Expenses), first, to the Administrative Agent and each Class A Funding Agent on behalf of itself and the Class A Lenders in its related Class A Lender Group, the payment of all Breakage Costs, all Liquidation Fees and all other amounts (other than those already provided for above) due and payable by the Borrower to the Administrative Agent, such Class A Funding Agent and such Class A Lenders (solely in their capacity as a Class A Lender) hereunder or under any other Transaction Document until paid in full and second, to each Class B Funding Agent on behalf of itself and the Class B Lenders in its related Class B Lender Group, the payment of all Breakage Costs, all Liquidation Fees and all other amounts (other than those already provided for above) due and payable by the Borrower to such Class B Funding Agent and such Class B Lenders (solely in their capacity as a Class B Lender) hereunder or under any other Transaction Document until paid in full;
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(xi)eleventh (All Other Obligations), to each Class A Funding Agent on behalf of itself and the Class A Lenders in its related Class A Lender Group, to each Class B Funding Agent on behalf of itself and the Class B Lenders in its related Class B Lender Group and to the Administrative Agent on behalf of any other applicable party, the ratable payment of all other Obligations that are past due and/or payable to such party on such date;
(xii)twelfth (Service Provider Indemnities), ratably, to the Paying Agent, the Verification Agent and/or the Facility Administrator, any indemnification, expenses, fees or other obligations owed to the Paying Agent, the Verification Agent and/or the Facility Administrator, respectively (including out-of-pocket expenses and indemnities of the Paying Agent and the Verification Agent not paid pursuant to clause (i) above and any Facility Administrator Fees, Paying Agent Fees or Verification Agent Fees not paid pursuant to clause (i) above), pursuant to the Transaction Documents;
(xiii)thirteenth (Eligible Letter of Credit Bank), to each Eligible Letter of Credit Bank or other party as directed by the Facility Administrator (a) any fees and expenses related to a Letter of Credit and (b) any amounts which have been drawn under a Letter of Credit and any interest due thereon; and
(xiv)fourteenth (Remainder), all Distributable Collections remaining in the Collection Account after giving effect to the preceding distributions in this Section 2.7(B), to the Borrower’s Account (to cover any other expenses of the Borrower or to make distributions on behalf of the Borrower).
(B)[Reserved].
(C)Notwithstanding anything to the contrary set forth in this Section 2.7 or Section 8.2, the Paying Agent shall not be obligated to make any determination or calculation with respect to the payments or allocations to be made pursuant to either of such Sections, and in making the payments and allocations required under such Sections, the Paying Agent shall be entitled to rely exclusively and conclusively upon the information in the latest Facility Administrator Report (or such other report or direction signed by the Administrative Agent) received by the Paying Agent pursuant to either such Section prior to the applicable payment date. Any payment direction to be acted upon by the Paying Agent pursuant to either such Section on a payment date other than a Payment Date shall be delivered to the Paying Agent at least two (2) Business Days prior to the date on which any payment is to be made.
Section 2.8. Certain Prepayments
.
(A)The Borrower may at any time upon written notice to the Administrative Agent, the Funding Agents and the Paying Agent, and subject to the priority of payments set forth in this Section 2.8, prepay all or any portion of the balance of the principal amount of the Class A Advances, Class B-I Advances or the Class B-II Advances based on the outstanding principal amounts thereof, which notice shall be given at least two (2) Business Days prior to the proposed date of such prepayment. If such prepayment is not
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
being made in connection with a Takeout Transaction, such prepayment (which need not be on a Payment Date) shall be accompanied by (a) the payment of all accrued but unpaid interest on the amounts to be so prepaid, (b) any Liquidation Fee in connection with such prepayment if such prepayment is not made on a Payment Date and (c) all payments which arise due to any prepayments of amounts under a Hedge Agreement, pursuant to the terms of the applicable Hedge Agreement (net of all amounts which are due and payable by such Qualifying Hedge Counterparty to the Borrower on such date pursuant to the terms of such Hedge Agreement) (which amounts shall be paid to the Administrative Agent for the account of the Hedge Counterparty under each Hedge Agreement). Prepayments made in accordance with this Section shall be applied (i) in the absence of an Event of Default or Amortization Event, ratably to the outstanding principal amount of Class A Advances, Class B Advances and any Hedge Counterparties and (ii) if an Event of Default or Amortization Event has occurred and is continuing, (a) first, on a pari passu basis (I) to reduce the outstanding principal amount of Class A Advances and (II) to any Hedge Counterparties and (b) second, to reduce the outstanding principal amount of Class B Advances; provided, that prepayments applied to the Class B Advances shall be applied first, to the outstanding principal balance of the Class B-II Advances until paid in full and second, to the outstanding principal balance of the Class B-I Advances until paid in full. If such prepayment is being made in connection with a Takeout Transaction, such prepayment shall be not less than the amount required by the definition of “Takeout Transaction”.
(B)The Borrower shall deposit all proceeds of any Takeout Transaction (net of reasonable fees, taxes, commissions, premiums and expenses incurred by the Borrower in connection with such Takeout Transaction so long as such deposit is greater than or equal to the Minimum Payoff Amount) into the Takeout Transaction Account, and the Paying Agent shall apply such proceeds to prepay the applicable Class A Advances and Class B Advances made in respect of the Collateral that is subject to such Takeout Transaction and make other related payments in accordance with Section 2.7(B), including any such payments due to the Paying Agent.
Section 2.9. Mandatory Prepayments of Advances. On any date that the Borrower either (a) obtains knowledge that (i) as of any prior Funding Date, any prior Payment Date or date on which a prepayment was made in accordance with Section 2.8 or (ii) in connection with the delivery of a Borrowing Base Certificate for an upcoming Funding Date, Payment Date or date on which a prepayment is to made in accordance with Section 2.8, or (b) receives notice from the Administrative Agent (with calculations set forth in reasonable detail), that as of any Funding Date, Payment Date or date on which a prepayment is made in accordance with Section 2.8, (i) the aggregate outstanding principal amount of all Class A Advances exceeds the lesser of (x) the amount of the Class A Aggregate Commitment in effect as of such date (without giving effect to or treating as outstanding any Advance that was approved pursuant to Section 2.18) and (y) the Class A Borrowing Base (the occurrence of any such excess being referred to herein as a “Class A Borrowing Base Deficiency”), or (ii) (A) if such date is more than 30 days prior to the end of the Availability Period, (I) the aggregate outstanding principal amount of all Class B-I Advances exceeds the lesser of (x) the amount of the Class B-I Aggregate Commitment in effect as of such date (without giving effect to or treating as outstanding any Advance
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
that was approved pursuant to Section 2.18) and (y) the Class B-I Borrowing Base (the occurrence of any such excess being referred to herein as a “Class B-I Borrowing Base Deficiency”) or (II) the aggregate outstanding principal amount of all Class B-II Advances exceeds the lesser of (x) the amount of the Class B-II Aggregate Commitment in effect as of such date (without giving effect to or treating as outstanding any Advance that was approved pursuant to Section 2.18) and (y) the Class B-II Borrowing Base (the occurrence of any such excess being referred to herein as a “Class B-II Borrowing Base Deficiency”) and (B) if such date is 30 days or less prior to the end of Availability Period, the aggregate outstanding principal amount of all Class B Advances exceeds the lesser of (x) the amount of the Class B Aggregate Commitment in effect as of such date (without giving effect to or treating as outstanding any Advance that was approved pursuant to Section 2.18) and (y) the Class B Aggregate Borrowing Base (the occurrence of any such excess being referred to herein as a “Class B Aggregate Borrowing Base Deficiency” and together with the Class A Borrowing Base Deficiency, the Class B-I Borrowing Base Deficiency and the Class B-II Borrowing Base Deficiency, a “Borrowing Base Deficiency”), the Borrower shall pay to the Class A Funding Agent, Class B-I Funding Agent and/or the Class B-II Funding Agent, as applicable, for the account of its Lender Group the amount of any such excess (to be applied to the reduction of the applicable Advances ratably among all applicable Lender Groups based on their Lender Group Percentages to the extent necessary to cure such Borrowing Base Deficiency), together with accrued but unpaid interest on the amount required to be so prepaid to the date of such prepayment and any Liquidation Fee in connection with such prepayment if such prepayment is not made on a Payment Date.
Section 2.10. [Reserved].
Section 2.11. Interest. The makers of the Advances shall be entitled to the applicable Interest Distribution Amount payable on each Payment Date in accordance with Section 2.7(B).
Section 2.12. Breakage Costs; Liquidation Fees; Increased Costs; Capital Adequacy; Illegality; Additional Indemnifications.
(A)Breakage Costs and Liquidation Fees. (i) If any Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower hereby agrees to pay Breakage Costs, if any, and (ii) the Borrower agrees to pay all Liquidation Fees associated with a reduction of the principal balance of a Class A Advance or Class B Advance at any time. The Borrower shall not be responsible for any Liquidation Fees or any other loss, cost, or expenses arising at the time of, and arising solely as a result of, any assignment made pursuant to Section 10.8 and the reallocation of any portion of a Class A Advance or Class B Advance of the applicable Lender making such assignment unless, in each case, such assignment is requested by the Borrower.
(B)Increased Costs. If any Change in Law (a) shall subject any Lender, the Administrative Agent or any Affiliate thereof (each of which, an “Affected Party”) to any Taxes (other than (x) Indemnified Taxes, (y) Taxes described in clauses (ii) through (iv) of the definition of Excluded Taxes and (z) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
capital attributable thereto, (b) shall impose, modify or deem applicable any reserve requirement (including any reserve requirement imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Affected Party, or (c) shall impose any other condition affecting the Collateral or the rights of any Lender and the Administrative Agent hereunder, the result of which is to increase the cost to any Affected Party under this Agreement or to reduce the amount of any sum received or receivable by an Affected Party under this Agreement, then on the next Payment Date after written demand by such Affected Party, such Affected Party shall receive such additional amount or amounts as will compensate such Affected Party for such additional or increased cost incurred or such reduction suffered to the extent such additional or increased costs or reduction are incurred or suffered in connection with the Collateral, any obligation to make Advances hereunder, any of the rights of such Lender or the Administrative Agent hereunder, or any payment made hereunder in accordance with Section 2.7(B); provided, that the Borrower shall not be required to compensate such Affected Party for any portion of such additional or increased cost or such reduction that is incurred more than one hundred eighty (180) days prior to any such demand (except that, if the event giving rise to such additional or increased cost or such reduction is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).
(C)Capital Adequacy. If any Change in Law has or would have the effect of reducing the rate of return on the capital of any Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which any such Affected Party could have achieved but for such Change in Law (taking into consideration the policies of such Affected Party with respect to capital adequacy) by an amount deemed by such Affected Party to be material, then from time to time, then on the next Payment Date after written demand by such Affected Party (which demand shall be accompanied by a statement setting forth the basis for such demand), such Affected Party shall receive such additional amount or amounts as will compensate such Affected Party for such reduction in accordance with Section 2.7(B); provided, that the Borrower shall not be required to compensate such Affected Party for any portion of such additional amount or amounts that are incurred more than one hundred eighty (180) days prior to any such demand (except that, if the event giving rise to such additional amount or amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).
(D)Compensation. If as a result of any event or circumstance similar to those described in Section 2.12(A), 2.12(B), or 2.12(C), any Affected Party is required to compensate a bank or other financial institution providing liquidity support, credit enhancement or other similar support to such Affected Party in connection with this Agreement or the funding or maintenance of Advances hereunder, then on the next Payment Date after written demand by such Affected Party, such Affected Party shall receive such additional amount or amounts as may be necessary to reimburse such Affected Party for any amounts paid by it; provided, that the Borrower shall not be
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
required to compensate such Affected Party for any portion of such additional amount or amounts that are incurred more than one hundred eighty (180) days prior to any such demand (except that, if the event giving rise to such additional amount or amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).
(E)Defaulting Lender. If any Lender is a Defaulting Lender, then the Borrower, at its sole expense may, upon notice to such Lender and the Administrative Agent, require such Lender subject to this Section 2.12(E) to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement and under the Advances, and Commitments of the Lender being replaced hereunder to an assignee that shall assume all those rights and obligations; provided, however, that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having valid jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld or delayed and (z) the Borrower or such assignee shall have paid to the replaced Lender in immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Advances of such Lender plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto.
A Lender subject to this Section 2.12(E) shall not be required to make any such assignment and delegation if prior to any such assignment and delegation the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply.
Each party hereto agrees that (a) an assignment required pursuant to this Section 2.12(E) may be effected pursuant to an assignment in substantially in the form of Exhibit F hereto executed by the Borrower, the Administrative Agent and the assignee and (b) the Lender required to make such assignment need not be a party to such Assignment and Assumption in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided, further, that any such documents shall be without recourse to or warranty by the parties thereto.
The Administrative Agent and each Lender hereby agree to cooperate with the Borrower to effectuate the assignment of any Defaulting Lender’s interest hereunder.
(F)Calculation. In determining any amount provided for in this Section 2.12, the Affected Party may use any reasonable averaging and attribution methods. Any Affected Party making a claim under this Section 2.12 shall submit to the Borrower a certificate as to such additional or increased cost or reduction, which certificate shall be conclusive absent manifest error.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 2.13. Payments and Computations. (A) The Borrower (through the Paying Agent pursuant to Section 2.7(B) and as otherwise permitted in this Agreement) shall make each payment and prepayment hereunder and under the Advances in respect of principal, interest, expenses, indemnities, fees or other Obligations due from the Borrower not later than 4:00 P.M. (New York City time) on the day when due in U.S. Dollars to the related Funding Agent at its address referred to in Section 10.3 or to such account provided by such Funding Agent in immediately available, same-day funds. Payments on Obligations may also be made by application of funds in the Collection Account or the Takeout Transaction Account as provided in Section 2.7(B), as applicable. All computations of interest for Advances shall be made by the related Funding Agent, who shall notify the Facility Administrator, the Borrower and the Administrative Agent of any determination thereof on or prior to the payment thereof pursuant to Section 2.7(B), as applicable. All computations of interest for Advances made under the Base Rate shall be made by the applicable Funding Agent on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed (including the first day but excluding the last day) occurring in the period for which such interest is payable. All other computations of fees and interest provided hereunder shall be made on the basis of a 360-day year and actual days elapsed (including the first day but excluding the last day) occurring in the period for which such interest is payable. Notwithstanding the foregoing, each determination by a Funding Agent of an interest rate hereunder shall be subject to the approval of the Administrative Agent.
(A)All payments to be made in respect of fees, if any, due to the Administrative Agent from the Borrower hereunder shall be made on the date when due without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower, and without setoff, counterclaim or other deduction of any nature (other than with respect to Taxes pursuant to Section 2.17), and an action therefor shall immediately accrue. The Borrower agrees that, to the extent there are insufficient funds in the Administrative Agent’s Account, to make any payment under this clause (B) when due, the Borrower shall immediately pay to the Administrative Agent all amounts due that remain unpaid.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 2.14. Payment on Non-Business Days
. Whenever any payment hereunder or under the Advances shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest.
Section 2.15. Inability to Determine Rates.
(A)Subject to clauses (B), (C), (D), (E), (F) and (G) of this Section 2.15, if prior to the commencement of any Interest Accrual Period:
(i)the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBOR Rate (including because any screen rate necessary to determine such rate is not available or published on a current basis), for such Interest Accrual Period; provided that no Benchmark Transition Event shall have occurred at such time with respect to the Adjusted LIBOR Rate; or
(ii)the Administrative Agent is advised by any Lender(s) that the Adjusted LIBOR Rate for such Interest Accrual Period will not adequately and fairly reflect the cost to such Lender(s) of making or maintaining their Advances for such Interest Accrual Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, the interest rate applicable to the Advances that would otherwise be funded or maintained based on the Adjusted LIBOR Rate shall be the Base Rate.
(B)Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Benchmark Transition Event or an Early Opt-In Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Majority Lenders.
(C)[Reserved].
(D)In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Document.
(E)The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-In Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (F) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.15, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Transaction Document, except, in each case, as expressly required pursuant to this Section 2.15.
(F)Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the Adjusted LIBOR Rate) and either (a) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (b) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Accrual Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (a) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (b) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Accrual Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(G)Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, any Advance that would otherwise be funded or maintained based on the Adjusted LIBOR Rate shall during such LIBOR Unavailability Period instead be funded or maintained based on the Base Rate. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
Section 2.16. Extension of the Scheduled Commitment Termination Date or Facility Maturity Date. No earlier than ninety (90) days, and no later than sixty (60) days, prior to the then Scheduled Commitment Termination Date or Facility Maturity Date, the Borrower may deliver written notice to the Administrative Agent and each Funding Agent requesting an extension of such Scheduled Commitment Termination Date or Facility Maturity Date, as applicable. The Administrative Agent shall respond to such request no later than thirty (30) days following the date of its receipt of such request, indicating whether it is considering such request and preliminary conditions precedent to any extension of the Scheduled Commitment Termination Date or the Facility Maturity Date, as applicable, as the Administrative Agent determines to include in such response. The Administrative Agent’s failure to respond to a request delivered by the Borrower pursuant to this Section 2.16 shall not be deemed to constitute any agreement by the Administrative Agent to any such extension. The granting of any extension of the Scheduled Commitment Termination Date or the Facility Maturity Date, as applicable, requested by the Borrower shall be in the mutual discretion of the Borrower and the Administrative Agent (on behalf of the Lenders with the consent of all Lender Groups).
Section 2.17. Taxes.
(A)Defined Terms. For purposes of this Section 2.17 the term “applicable Law” includes FATCA.
(B)Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Transaction Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(C)Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of a Funding Agent timely reimburse it for the payment of, any Other Taxes.
(D)Indemnification by the Borrower. The Borrower shall indemnify each Recipient, within ten days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Recipient (with a copy to each Funding Agent), or by a Funding Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.
(E)Indemnification by the Lenders. Each Non-Conduit Lender shall severally indemnify each Funding Agent, within ten days after demand therefor, for (i) any Indemnified Taxes attributable to such Non-Conduit Lender (but only to the extent that the Borrower has not already indemnified such Funding Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), and (ii) any Excluded Taxes attributable to such Non-Conduit Lender, in each case, that are payable or paid by a Funding Agent in connection with any Transaction Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Non-Conduit Lender by its Funding Agent shall be conclusive absent manifest error. Each Non-Conduit Lender hereby authorizes its Funding Agent to set off and apply any and all amounts at any time owing to such Non-Conduit Lender under any Transaction Document or otherwise payable by such Funding Agent to the Non-Conduit Lender from any other source against any amount due to such Funding Agent under this paragraph (E).
(F)Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.17, the Borrower shall deliver to each Funding Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to such Funding Agent.
(G)Status of Recipients. (i) Any Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Transaction Document shall deliver to the Borrower, the Paying Agent and the related Funding Agent, at the time or times reasonably requested by the Borrower, the Paying Agent or such Funding Agent, such properly completed and executed documentation reasonably requested by the Borrower, the Paying Agent or such Funding Agent as will permit such payments to be made without withholding or at a reduced rate of
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
withholding. In addition, any Recipient, if reasonably requested by the Borrower, the Paying Agent or the related Funding Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower, the Paying Agent or such Funding Agent as will enable the Borrower, the Paying Agent or such Funding Agent to determine whether or not such Recipient is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (ii)(a), (ii)(b) and (ii)(d) below) shall not be required if in the Recipient’s reasonable judgment such completion, execution or submission would subject such Recipient to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Recipient.
(ii)Without limiting the generality of the foregoing,
(a)any Recipient that is a U.S. Person shall deliver to the Borrower, the Paying Agent and the related Funding Agent on or prior to the date on which such Recipient becomes a Recipient under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower, the Paying Agent or such Funding Agent), executed originals of Internal Revenue Service Form W-9 certifying that such Recipient is exempt from U.S. federal backup withholding tax;
(b)any Recipient that is not a U.S. Person shall, to the extent it is legally entitled to do so, deliver to the Borrower, the Paying Agent and the related Funding Agent (in such number of copies as shall be requested by the Borrower, the Paying Agent or such Funding Agent) on or prior to the date on which such Recipient becomes a Recipient under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower, the Paying Agent or such Funding Agent), whichever of the following is applicable:
(1)in the case of a Recipient claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Transaction Document, executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Transaction Document, Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)executed copies of Internal Revenue Service Form W-8ECI;
(3)in the case of a Recipient claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Recipient is not a “bank” within the meaning of
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Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E; or
(4)to the extent a Recipient is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Recipient is a partnership and one or more direct or indirect partners of such Recipient are claiming the portfolio interest exemption, such Recipient may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;
(c)any Recipient which is not a U.S. Person shall, to the extent it is legally entitled to do so, deliver to the Borrower, the Paying Agent and the related Funding Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Recipient becomes a Recipient under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower, the Paying Agent or such Funding Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower, the Paying Agent or such Funding Agent to determine the withholding or deduction required to be made; and
(d)if a payment made to a Recipient under any Transaction Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Recipient shall deliver to the Borrower, the Paying Agent and the related Funding Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower, the Paying Agent or such Funding Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower, the Paying Agent or such Funding Agent as may be necessary for the Borrower, the Paying Agent and such Funding Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (d), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
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Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower, the Paying Agent and the related Funding Agent in writing of its legal inability to do so.
(H)Forms for Paying Agent. The Administrative Agent and each Funding Agent shall deliver to the Paying Agent on or before the first Payment Date, executed originals of Internal Revenue Service Form W-9 or W-8, as applicable, certifying that the Administrative Agent or such Funding Agent is exempt from U.S. federal backup withholding tax. The Administrative Agent and each Funding Agent agrees that if such Internal Revenue Service Form previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or promptly notify the Paying Agent and the Borrower in writing of its legal inability to do so.
(I)Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (I) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (I), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (I) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(J)Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of a Funding Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Transaction Document.
Section 2.18. Request for Borrowing Exceeding Aggregate Commitment.
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(A)Notice. The Borrower may, from time to time during the Availability Period, prior to the issuance of a Notice of Borrowing, send a written notice to the Administrative Agent and each Lender Group setting forth the Borrower’s intent to request a borrowing that will cause the Aggregate Outstanding Advances to exceed the Aggregate Commitment (but not the Maximum Facility Amount) then in effect. Such notice shall be sent no later than five (5) Business Days prior to the date on which the Borrower intends to send the related Notice of Borrowing and shall set forth the amount by which the sum of the Aggregate Outstanding Advances (after giving effect to such borrowing) will exceed the Aggregate Commitment and the related Funding Date.
(B)Approval/Disapproval. Upon receipt of the notice described in Section 2.18(A) by the Funding Agents, each Funding Agent shall, no later than five (5) Business Days after receipt thereof, obtain the written approval or disapproval of each Non-Conduit Lender in the related Lender Group regarding the requested Advances, which approval shall be granted or not granted in the sole discretion of the Non-Conduit Lenders. If the making of the requested Advances is approved by each of the Non-Conduit Lenders so requested, the Borrower shall, in accordance with procedures set forth in Section 2.4, send the related Notice of Borrowing. Any approved Advances to be made by the Lenders in the related Lender Group shall be funded within such Lender Group pursuant to any allocation as agreed to by all of the members of such Lender Group. If the making of the requested Advances is not approved by any Non-Conduit Lender so requested, then the Borrower shall, prior to sending its Notice of Borrowing, modify the same in a manner sufficient to ensure that the requested borrowing does not cause the Aggregate Outstanding Advances to exceed the Aggregate Commitment then in effect, as applicable. If the making of the requested Advances is approved by one or more Non-Conduit Lenders so requested and not approved by one or more Non-Conduit Lender so requested, the approving Non-Conduit Lenders shall have the right, but not the obligation, to make all or a portion of the Advance requested of the non-approving Non-Conduit Lenders, and the Borrower shall, in accordance with procedures set forth in Section 2.4, send the related Notice of Borrowing.
(C)Commitment. For the avoidance of doubt, if the making of an Advance by a Lender Group that would cause the Aggregate Outstanding Advances to exceed the Aggregate Commitment, as applicable, is approved, each Non-Conduit Lender’s Commitment shall be increased solely to the extent such Non-Conduit Lender approved the Advance. Each Non-Conduit Lender’s Commitment shall otherwise remain as set forth on Exhibit E unless increased and/or reduced from time to time in accordance with Section 2.6 or amended in connection with assignments made by a Non-Conduit Lender pursuant to Section 10.8. Moreover, the Borrower must go through the procedures described in Sections 2.18(A) and (B) each time a request for an Advance is made which would cause the sum of all outstanding Advances to exceed the Aggregate Commitment, as applicable.
(D)Nothing set forth in this Section 2.18 requires a Conduit Lender to make any Advance; provided, however, a Conduit Lender may, in its sole discretion, make the
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Advance requested pursuant to this Section 2.18 for its Lender Group. Any Advance approved pursuant to this Section 2.18 shall be made pursuant to and in accordance with Sections 2.2 and 2.4.
Article III
Conditions of Lending and Closing
Section 3.1. Conditions Precedent to Original Closing. The following conditions shall be satisfied on or before the Original Closing Date:
(A) Closing Documents. The Administrative Agent shall have received each of the following documents, in form and substance satisfactory to Administrative Agent, duly executed, and each such document shall be in full force and effect, and all consents, waivers and approvals necessary for the consummation of the transactions contemplated thereby shall have been obtained:
(i)this Agreement;
(ii)a Loan Note for each Lender Group that has requested the same;
(iii)the Contribution Agreement;
(iv)the Sale and Contribution Agreement;
(v)the SAP Contribution Agreement;
(vi)the Security Agreement;
(vii)the Pledge Agreement;
(viii)the Subsidiary Guaranty;
(ix)the Facility Administration Agreement;
(x)the Verification Agent Agreement;
(xi)the Parent Guaranty;
(xii)the Tax Equity Investor Consents;
(xiii)each Fee Letter;
(xiv)the Verification Agent Fee Letter; and
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(xv)the Paying Agent Fee Letter.
(B)Secretary’s Certificates. The Administrative Agent shall have received: (i) a certificate from the Assistant Secretary of the Verification Agent, and the Paying Agent, (ii) a certificate from the Secretary of each of the Parent, Intermediate Holdco, Financing Fund Seller, the Facility Administrator, the Managing Members, SAP, the Borrower and each Affiliate thereof that is party to a Transaction Document (a) attesting to the resolutions of such Person’s members, managers or other governing body authorizing its execution, delivery, and performance of this Agreement and the other Transaction Documents to which it is a party, (b) authorizing specific Responsible Officers for such Person to execute the same, and (c) attesting to the incumbency and signatures of such specific Responsible Officers; (iii) copies of governing documents, as amended, modified, or supplemented prior to the Original Closing Date of each of the Parent, Intermediate Holdco, Financing Fund Seller, the Facility Administrator, the Managing Members, SAP, the Borrower and each Affiliate thereof that is party to a Transaction Document, in each case certified by a Responsible Officer of such Person; and (iv) a certificate of status with respect to each of the Parent, Intermediate Holdco, Financing Fund Seller, the Facility Administrator, the Managing Members, SAP, the Borrower and each Affiliate thereof that is party to a Transaction Document dated within fifteen (15) days of the Original Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such entity, which certificate shall indicate that such entity is in good standing in such jurisdiction.
(C)Legal Opinions. The Administrative Agent shall have received customary opinions from (i) counsel (which may be in-house counsel) to Paying Agent and Verification Agent addressing authorization and enforceability of the Transaction Documents and other corporate matters and (ii) counsel to the Parent, Intermediate Holdco, Financing Fund Seller, the Facility Administrator, the Managing Members, SAP, the Borrower and each Affiliate thereof that is party to a Transaction Document addressing (a) authorization and enforceability of the Transaction Documents and other corporate matters, (b) security interest and UCC matters, (c) substantive consolidation matters and (d) true sale matters.
(D)No Material Adverse Effect. Since December 31, 2018 there has been no Material Adverse Effect.
(E)Know Your Customer Information. The Administrative Agent and the Paying Agent shall have received all documentation and other information required by regulatory authorities under applicable “Know Your Customer” and anti-money laundering rules and regulations, including the Patriot Act.
(F)Payment of Fees. The Borrower shall have paid all fees previously agreed in writing to be paid on or prior to the Original Closing Date.
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(G)Evidence of Insurance. The Administrative Agent shall have received certification evidencing coverage under the insurance policies referred to in Section 5.1(L).
(H)[Reserved].
(I)[Reserved].
(J)Taxes. The Administrative Agent shall have received a certificate from the Borrower that all sales, use and property taxes, and any other taxes in connection with any period prior to the Original Closing Date, that are due and owing with respect to each Solar Asset and/or Solar Asset Owner Member Interest have been paid or provided for by the Parent.
(K)Closing Date Certificate of the Borrower. The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower (in his or her capacity as such) in form satisfactory to Administrative Agent certifying that its representations and warranties set forth in the Transaction Documents to which it is a party are true and correct in all material respects as of the Original Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).
(L)UCC Search Results. Administrative Agent shall have received the results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to the Assignors, Financing Fund Seller, the Borrower, SAP, the Managing Members and the Financing Funds in all appropriate jurisdictions together with copies of all such filings disclosed by such search.
(M)UCC Financing Statements. The Borrower shall have duly filed proper financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), on or before the Original Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the Administrative Agent’s interests in the Collateral. The Borrower shall have filed proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any of its affiliates.
(N)Accounts. The Administrative Agent shall have received evidence reasonably satisfactory to it that the Collection Account, the Supplemental Reserve Account, the Liquidity Reserve Account, the SAP Revenue Account, the Takeout Transaction Account and the Borrower’s Account have been established.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(O)Tax Equity Facility Due Diligence. The Administrative Agent shall be satisfied with the results of any due diligence of the Financing Funds, the SAP Financing Documents, the Tax Equity Financing Documents and the transactions contemplated by the SAP Financing Documents and Tax Equity Financing Documents, including receipt of fully executed Tax Equity Financing Documents and any related Tax Loss Insurance Policy, in its sole discretion.
Section 3.2. Conditions Precedent to All Advances. (A) Except as otherwise expressly provided below, the obligation of each Non-Conduit Lender to make or participate in each Advance (including the initial Advances made on the Original Closing Date) shall be subject, at the time thereof, to the satisfaction of the following conditions:
(i)Funding Documents. The Administrative Agent and each Funding Agent shall have received, no later than two (2) Business Days prior to the Funding Date, a completed Notice of Borrowing and a Borrowing Base Certificate, each in form and substance satisfactory to the Administrative Agent.
(ii)Solar Assets. All conditions to the acquisition of Solar Assets by the respective Financing Fund under the applicable Tax Equity Financing Documents have been satisfied, and all conditions to the acquisition of Solar Assets by the applicable Assignors, the applicable Seller, the Borrower and SAP under the Contribution Agreements, the Sale and Contribution Agreement, the SAP Contribution Agreement and the SAP NTP Financing Documents, as applicable, have been satisfied.
(iii)Managing Members. All conditions to the acquisition of Managing Members by the Borrower under the Sale and Contribution Agreement and Section 3.3 shall have been satisfied.
(iv)Representations and Warranties. All of the representations and warranties of the Borrower, the Assignors, the Sellers, TEP Resources, the Parent and the initial Facility Administrator contained in this Agreement or any other Transaction Document that relate to the eligibility of the Solar Assets shall be true and correct as of the Funding Date and all other representations and warranties of the Borrower, the Assignors, the Sellers, TEP Resources, the Parent, the Managing Members, SAP, and the initial Facility Administrator contained in this Agreement or any other Transaction Document 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 Funding Date (or such earlier date or period specifically stated in such representation or warranty).
(v)No Defaults; Solvency. The Administrative Agent shall have received a certification that no Amortization Event, Event of Default, Potential Amortization Event or Potential Default has occurred and is continuing or would result from any borrowing of any Advance or from the application of the proceeds therefrom
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and after giving effect to such Advance or from the application of the proceeds therefrom, the Borrower will be Solvent.
(vi)Verification Agent Certificate. The Administrative Agent shall have received an A-1 Verification Agent Certification (or, in respect of the initial Advance, the Original Closing Date Verification Agent Certification) in respect of the applicable Solar Assets from the Verification Agent pursuant to the Verification Agent Agreement.
(vii)Hedge Requirements. The Borrower shall be in compliance with all applicable Hedge Requirements.
(viii)Liquidity Reserve. The amount on deposit in the Liquidity Reserve Account shall not be less than the Liquidity Reserve Account Required Balance, taking into account the application of the proceeds of the Advances on the Funding Date.
(ix)Aggregate Commitment/No Borrowing Base Deficiency. After giving effect to such Advance, the Aggregate Outstanding Advances shall not exceed the Aggregate Commitment in effect as of such Funding Date unless the Borrower shall have, pursuant to the procedures set forth in Section 2.18, received the written approval of the Non-Conduit Lenders with respect to such Advance, such approval to be granted by each Non-Conduit Lender in its sole discretion. After giving effect to such Advance, there should not exist a Class A Borrowing Base Deficiency, Class B-I Borrowing Base Deficiency or a Class B-II Borrowing Base Deficiency.
(x)Availability Period. The Commitment Termination Date shall not have occurred, nor shall it occur as a result of making such Advance, nor has the Availability Period ended.
(xi)Updated Schedules. The Borrower shall have provided the Administrative Agent an updated Schedule IV, an updated Schedule V, an updated Schedule VI and an updated Schedule VII to reflect the Scheduled Hedged SREC Payments, Scheduled Host Customer Payments, Scheduled PBI Payments and Scheduled Managing Member Distributions as of such Funding Date.
(xii)Other Documents. The Borrower shall have provided the Administrative Agent with all documents reasonably requested by the Administrative Agent related to the Solar Assets being financed by the Borrower (indirectly through its ownership of the Solar Asset Owner Member Interests) on such Funding Date.
(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.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(B)Each Notice of Borrowing submitted by the Borrower after the Original Closing Date shall be deemed to be a representation and warranty that the conditions specified in this Section 3.2 have been satisfied on and as of the date of the applicable Notice of Borrowing.
Section 3.3. Conditions Precedent to Acquisition of Additional Managing Members. As a condition to the Borrower's acquisition of a Managing Member after the Original Closing Date:
(A)the Borrower shall have provided the Administrative Agent with all documents reasonably requested by the Administrative Agent related to the such Managing Member and the related Financing Fund; and
(B)the Administrative Agent, each Lender in the CS Lender Group and the Majority Class B Lenders (and, if either the Tax Equity Investor Member related to such Managing Member or any guarantor that has provided a guaranty on behalf of such Tax Equity Investor Member is not an entity rated investment grade by any of Moody’s, S&P, Fitch, DBRS, Inc. or Kroll Bond Rating Agency, Inc., SVB, as a Class A Lender) shall have consented to the Borrower’s acquisition of such Managing Member, in each case, in their reasonable discretion; provided, that (i) such consent of SVB shall not be required (x) if the Tax Equity Investor Member (or guarantor thereof) related to such Managing Member is an Approved Tax Equity Partner, or (y) at any time that SVB is not a Class A Lender hereunder and (ii) if SVB fails to provide its consent to the Borrower’s acquisition of a Managing Member which was required pursuant to this Section 3.3(B) and such acquisition was otherwise approved by the Administrative Agent and the other Lenders required to provide their consent, SVB shall be “Defaulting Lender”; provided, further, that consent by the Majority Class B Lenders shall not be unreasonably withheld, conditioned or delayed if otherwise approved by the Majority Lenders; provided, further, that if the Majority Class B Lenders have not affirmatively disapproved such transaction in writing within five (5) Business Days of receiving drafts of the relevant financing fund limited liability company agreement, master purchase agreement, tax loss insurance policy and an updated Schedule VIII and Schedule XII hereto that are, in each case, considered by the Administrative Agent to be substantially final and the Majority Lenders have otherwise approved such transaction, such transaction shall be deemed approved by the Majority Class B Lenders). The Administrative Agent and the Lenders shall use their best efforts to provide the consent required by this clause (B) (or confirm their affirmative disapproval of such transaction) within five (5) Business Days of receiving drafts of the relevant financing fund limited liability company agreement, master purchase agreement and tax loss insurance policy that are, in each case, considered by the Administrative Agent to be substantially final.
Section 3.4. Conditions Precedent to Amendment and Restatement. The following conditions shall be satisfied on or before the Amendment and Restatement Date:
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(A)Amendment and Restatement Documents. The Administrative Agent shall have received each of the following documents (the “Amendment and Restatement Documents”), in form and substance satisfactory to Administrative Agent, duly executed, and each such document shall be in full force and effect, and all consents, waivers and approvals necessary for the consummation of the transactions contemplated thereby shall have been obtained:
(i)this Agreement;
(ii)the Master SAP Contribution Agreement;
(iii)the Sale and Contribution Agreement;
(iv)that certain Assignment and Assumption Agreement, dated as of the Amendment and Restatement Date, by and between Funding Fund Seller as assignor, SAP Seller as assignee, and consented and agreed to by the Borrower;
(v)that certain Amended and Restated Master Distribution Agreement, dated as of the Amendment and Restatement Date, by and among SAP, Borrower, TEP Resources and SAP Seller;
(vi)that certain Assignment and Assumption Agreement, dated as of the Amendment and Restatement Date, by and between Funding Fund Seller as assignor, SAP Seller as assignee, and consented and agreed to by the Borrower, TEP Resources and SAP;
(vii)the TEP OpCo Contribution Agreement;
(viii)that certain Amended and Restated TEP IV-C Contribution Agreement, dated as of the Amendment and Restatement Date, by and among the Assignors and Financing Fund Seller, related to TEP IV-C;
(ix)that certain Amended and Restated TEP IV-E Contribution Agreement, dated as of the Amendment and Restatement Date by and among the Assignors and Financing Fund Seller, related to TEP IV-E;
(x)that certain Returned Project Distribution Agreement, dated as of the Amendment and Restatement Date, by and between SAP Seller and Financing Fund Seller;
(xi)that certain Omnibus Ratification and Reaffirmation Agreement, dated as of the Amendment and Restatement Date, by and among TEP Resources, the Borrower, the Managing Members, SAP, and the Administrative Agent;
(xii)the Parent Guaranty;
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(xiii)that certain TEP Developer Contribution Agreement, dated as of the Amendment and Restatement Date, by and between TEP Inventory and SAP Seller; and
(xiv)that certain TEP Resources Distribution Agreement, dated as of the Amendment and Restatement Date, by and between Financing Fund Seller and SAP Seller.
(B)Representations and Warranties. All of the representations and warranties of the Parent, the Facility Administrator, Intermediate Holdco, Sunnova Inventory Holdings, Sunnova Inventory Pledgor, TEP Inventory, SAP Seller, Financing Fund Seller, TEP Resources, the Borrower, the Managing Members, and SAP contained herein 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 Amendment and Restatement Date (or such earlier date or period specifically stated in such representation or warranty).
(C)Legal Opinions. The Administrative Agent shall have received customary opinions from counsel to the Assignors, the Sellers, the Facility Administrator, the Managing Members, SAP, the Borrower and each Affiliate thereof that is party to an Amendment and Restatement Document addressing (i) authorization and enforceability of the Amendment and Restatement Documents and other corporate matters, (ii) security interest and UCC matters, (iii) substantive consolidation matters and (iv) true sale matters.
(D)Secretary’s Certificates. The Administrative Agent shall have received: (i) a certificate from the Assistant Secretary of the Paying Agent, (ii) a certificate from the Secretary of each of the Parent, the Facility Administrator, Intermediate Holdco, Sunnova Inventory Holdings, Sunnova Inventory Pledgor, TEP Inventory, SAP Seller, Financing Fund Seller, TEP Resources, the Borrower, the Managing Members, SAP and each Affiliate thereof that is party to a Transaction Document (a) attesting to the resolutions of such Person’s members, managers or other governing body authorizing its execution, delivery, and performance of this Agreement and the other Transaction Documents to which it is a party, (b) authorizing specific Responsible Officers for such Person to execute the same, and (c) attesting to the incumbency and signatures of such specific Responsible Officers; (iii) copies of governing documents, as amended, modified, or supplemented prior to the Amendment and Restatement Date of each of the Parent, Intermediate Holdco, Financing Fund Seller, SAP Seller, TEP Resources, the Borrower, the Managing Members, SAP, Sunnova Inventory Holdings, Sunnova Inventory Pledgor, TEP Inventory, the Facility Administrator and each Affiliate thereof that is party to a Transaction Document, in each case certified by a Responsible Officer of such Person; and (iv) a certificate of status with respect to each of the Parent, Intermediate Holdco, Financing Fund Seller, SAP Seller, TEP Resources, the Borrower, the Managing Members, SAP, Sunnova Inventory Holdings, Sunnova Inventory Pledgor, TEP Inventory, the Facility Administrator and each Affiliate thereof that is party to a
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Transaction Document dated within fifteen (15) days of the Amendment and Restatement Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such entity, which certificate shall indicate that such entity is in good standing in such jurisdiction.
(E)UCC Search Results. Administrative Agent shall have received the results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to the Assignors, Financing Fund Seller, SAP Seller, TEP Resources, the Borrower, SAP, the Managing Members and the Financing Funds in all appropriate jurisdictions together with copies of all such filings disclosed by such search.
(F)UCC Financing Statements. The Borrower shall have duly filed proper financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), on or before the Amendment and Restatement Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the Administrative Agent’s interests in the Collateral. The Borrower shall have filed proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any of its affiliates.
(G)Other Documents. The Borrower shall have provided the Administrative Agent with all other documents reasonably requested by the Administrative Agent.
Article IV
Representations and Warranties
Section 4.1. Representations and Warranties of the Borrower. The Borrower represents and warrants to the Administrative Agent and each Lender as of the Original Closing Date, as of each Funding Date, as of the Amendment and Restatement Date, and with respect to paragraphs (A), (B), (F), (G), (I), (K), and (L) through (S) as of each Payment Date, as follows:
(A)Organization; Corporate Powers. Each Relevant Party (i) is a duly organized and validly existing limited liability company, in good standing under the laws of the State of Delaware, (ii) has the limited liability company power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage, and (iii) is duly qualified and is authorized to do business in all jurisdictions where it is required to be so qualified or authorized.
(B)Authority and Enforceability. Each Relevant Party has the limited liability company or other organizational power and authority to execute, deliver and carry out the
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terms and provisions of the Transaction Documents to which it is party and has taken all necessary company or other organizational action to authorize the execution, delivery and performance of the Transaction Documents to which it is party. Each Relevant Party has duly executed and delivered each Transaction Document to which it is party and each Transaction Document to which it is party constitutes the legal, valid and binding agreement and obligation of the respective Relevant Party enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
(C)Government Approvals. No order, consent, authorization, approval, license, or validation of, or filing recording, registration with, or exemption by, any Governmental Authority is required to authorize or is required as a condition to: (i) the execution, delivery and performance by a Relevant Party of any Transaction Document to which it is a party or any of its obligations thereunder or (ii) the legality, validity, binding effect or enforceability of any Transaction Document to which such Relevant Party is a party.
(D)Litigation. There are no material actions, suits or proceedings, pending or threatened in writing with respect to any Relevant Party.
(E)Applicable Law, Contractual Obligations and Organizational Documents. Neither the execution, delivery and performance by any Relevant Party of the Transaction Documents to which it is party nor compliance with the terms and provisions thereof (i) will contravene any provision of any law, statute, rule, regulation, order, writ, injunction or decree of any Governmental Authority applicable to such Relevant Party or its properties and assets, (ii) will conflict with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under or result in the creation or imposition of (or the obligation to create or impose) any Lien (other than the Liens created pursuant to the Security Agreement, the Pledge Agreement or Permitted Liens) upon any of the property or assets of the Borrower pursuant to the terms of any contract, or (iii) will breach any provision of the certificate of formation or the operating agreement of such Relevant Party and will, for each of subsection (i), (ii) and (iii), result in a Material Adverse Effect.
(F)Use of Proceeds. Proceeds of the Class A Advances and the Class B Advances have been used only as permitted under Section 2.3. No part of the proceeds of the Class A Advances or the Class B Advances will be used directly or indirectly to purchase or carry Margin Stock, or to extend credit to others for the purpose of purchasing or carrying any Margin Stock, in violation of any of the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. At no time would more than 25% of the value of the
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assets of the Borrower that are subject to any “arrangement” (as such term is used in Section 221.2(g) of such Regulation U) hereunder be represented by Margin Stock.
(G)Accounts. The names and addresses of the Collection Account, the Supplemental Reserve Account, the Liquidity Reserve Account, the SAP Lockbox Account, the SAP Revenue Account, the Takeout Transaction Account and the Borrower’s Account are specified on Schedule II attached hereto, as updated pursuant to Section 5.1(Q). Other than accounts on Schedule II attached hereto, the Borrower (or, with respect to the SAP Lockbox Account, SAP) does not have any other accounts. The Borrower has directed, or has caused to be directed (i) each Financing Fund, each Managing Member and SAP to make all payments in respect of the Managing Member Distributions and the SAP Distributions, as applicable, to the Collection Account, (ii) all Host Customers related to Solar Assets owned by SAP to make Host Customer Payments to the SAP Lockbox Account and (iii) each Hedged SREC Counterparty to make all Hedged SREC Payments to the Collection Account and, to the extent any payments referred to in clauses (i), (ii) or (iii) are deposited into another account, has caused such payments to be deposited into the Collection Account no later than two (2) Business Days after receipt. The Borrower shall cause (i) SAP to cause all amounts on deposit in the SAP Lockbox Account in excess of an amount to be agreed to by SAP and the Administrative Agent to be swept daily into the SAP Revenue Account pursuant to standing instructions and (ii) the SAP Lockbox Account to at all times be subject to a first priority perfected security interest in favor of the Administrative Agent.
(H)ERISA. None of the assets of the Borrower are or, prior to the repayment of all Obligations, will be subject to Title I of ERISA, Section 4975 of the Internal Revenue Code, or, by reason of any investment in the Borrower by any governmental plan, as the case may be, any other federal, state, or local provision similar to Section 406 of ERISA or Section 4975 of the Internal Revenue Code. Neither the Borrower nor any of its ERISA Affiliates has maintained, participated or had any liability in respect to any Plan during the past six (6) years which could reasonably be expected to subject the Borrower or any of its ERISA Affiliates to any tax, penalty or other liabilities. No ERISA Event has occurred or is reasonably likely to occur. With respect to any Plan which is a Multi-Employer Plan, no such Multi-Employer Plan is, or to the knowledge of the Relevant Parties reasonably like to occur, in reorganization or insolvent as defined in Title IV of ERISA Borrower and the Lenders, take any.
(I)Taxes. Each Relevant Party has timely filed (or had filed on its behalf) all federal state, provincial, territorial, foreign and other Tax returns and reports required to be filed under applicable law, and has timely paid (or had paid on its behalf) all federal state, foreign and other Taxes levied or imposed upon it or its properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate actions diligently conducted and for which adequate reserves have been provided in accordance with GAAP. No Lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such Tax due from any Relevant Party or with respect to any Solar Assets. Any Taxes due and payable by any Relevant Party or
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its predecessors in interest in connection with the execution and delivery of this Agreement and the other Transaction Documents and the transfers and transactions contemplated hereby or thereby have been paid or shall have been paid if and when due. Except to the extent provided in the Tax Equity Financing Documents, no Relevant Party is liable for Taxes payable by any other Person.
(J)Material Agreements. The Borrower has not defaulted under the Transaction Documents, any similar agreements entered into in connection with a Takeout Transaction or any other material agreement to which the Borrower is a party and to the Borrower’s knowledge, there is no breach or default by a counterparty to such Transaction Documents, similar agreements entered into in connection with the Takeout Transaction or any other material agreement to which the Borrower is a party.
(K)Accuracy of Information. The written information (other than financial projections, forward looking statements, and information of a general economic or industry specific nature) that has been made available to the Paying Agent, the Verification Agent, the Administrative Agent or any Lender by or on behalf of the Borrower or any Affiliate thereof in connection with the transactions hereunder including any written statement or certificate of factual information, when taken as a whole, does not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in the light of the circumstances under which such statements are made (giving effect to all supplements and updates thereto).
(L)No Material Adverse Effect. Since the date of delivery of the latest audited financial statements for a fiscal year of SEI pursuant to Section 5.1(A)(i), there has been no Material Adverse Effect.
(M)Investment Company Act. No Relevant Party is an “investment company” or an “affiliated person” of or “promoter” or “principal underwriter” for an “investment company” as such terms are defined in the 1940 Act, nor is any Relevant Party otherwise subject to regulation thereunder and no Relevant Party relies solely on the exemption from the definition of “investment company” in Section 3(c)(1) and/or 3(c)(7) of the 1940 Act (although such exemptions may be available).
(N)Covered Fund. No Relevant Party is a “covered fund” under Section 13 of the Bank Holding Company Act of 1956, as amended
(O)Properties; Security Interest. The Borrower has good title to all of its properties and assets necessary in the ordinary conduct of its business, free and clear of Liens other than Permitted Liens and Permitted Equity Liens. Once executed and delivered, the Security Agreement, the Pledge Agreement and the SAP Lockbox Account Control Agreement create, as security for the Obligations, a valid and enforceable and (coupled with this Agreement and the taking of all actions required thereunder and under the Security Agreement, the Pledge Agreement and the SAP Lockbox Account Control
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Agreement for perfection) perfected security interest in and Lien on all of the Collateral, in favor of the Administrative Agent, for the benefit of the Secured Parties, superior to and prior to the rights of all third persons and subject to no other Liens, except for Permitted Liens.
(P)Subsidiaries. The Borrower does not have, and shall not have, any Subsidiaries (other than the Managing Members and SAP), and does not and shall not otherwise own or hold, directly or indirectly, any Capital Stock of any other Person (other than in the case of Capital Stock of the Managing Members and SAP).
(Q)Valid Transfer. The Contribution Agreements create a valid sale, transfer or assignment from the applicable Assignor to the related assignee thereunder of all right, title and interest of such Assignor in and to the Conveyed Property in each case conveyed to any assignee thereunder. The Sale and Contribution Agreement creates (i) a valid sale, transfer and/or assignment from SAP Seller to TEP Resources of all right, title and interest of SAP Seller in and to the Conveyed Property in each case conveyed to TEP Resources thereunder, and (ii) a valid sale, transfer and/or assignment from TEP Resources to the Borrower of all right, title and interest of TEP Resources in and to the Conveyed Property in each case conveyed to the Borrower thereunder. The SAP Contribution Agreement creates a valid transfer and/or assignment from the Borrower to SAP of all right title and interest of the Borrower in and to the Conveyed Property in each case conveyed to SAP thereunder.
(R)Purchases of Solar Assets. (i) The Borrower has given reasonably equivalent value to TEP Resources (which may include additional Capital Stock in the Borrower) in consideration for the transfer to the Borrower by TEP Resources of the Conveyed Property conveyed to the Borrower under the Sale and Contribution Agreement, and no such transfer has been made for or on account of an antecedent debt owed by TEP Resources to the Borrower; (ii) TEP Resources has given reasonably equivalent value to SAP Seller (which may include additional Capital Stock in TEP Resources) in consideration for the transfer to TEP Resources by SAP Seller of the Conveyed Property conveyed to TEP Resources under the Sale and Contribution Agreement, and no such transfer has been made for or on account of an antecedent debt owed by SAP Seller to TEP Resources; and (iii) each related assignee under the Master SAP Contribution Agreement has given reasonably equivalent value to the applicable Assignor thereunder (which may include additional Capital Stock in such assignee) in consideration for the transfer to such assignee by the applicable Assignor of the Conveyed Property conveyed to such assignee under the Master SAP Contribution Agreement, and no such transfer has been made for or on account of an antecedent debt owned by such assignee to the applicable Assignor.
(S)OFAC and Patriot Act. Neither any Relevant Party nor, to the knowledge of any Relevant Party, any of its officers, directors or employees appears on the Specially Designated Nationals and Blocked Persons List published by the Office of Foreign Assets Control (“OFAC”) or is otherwise a person with which any U.S. person is prohibited
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from dealing under the laws of the United States, unless authorized by OFAC. No Relevant Party conducts business or completes transactions with the governments of, or persons within, any country under economic sanctions administered and enforced by OFAC. No Relevant Party will directly or indirectly use the proceeds from this Agreement, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person to fund any activities of or business with any person that, at the time of such funding, is the subject of economic sanctions administered or enforced by OFAC, or is in any country or territory that, at the time of such funding or facilitation, is the subject of economic sanctions administered or enforced by OFAC. No Relevant Party is in violation of Executive Order No. 13224 or the Patriot Act.
(T)Foreign Corrupt Practices Act. Neither the Relevant Parties nor, to the knowledge of the Relevant Parties, any of its directors, officers, agents or employees, has used any of the proceeds of any Advance (i) for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) to make any direct or indirect unlawful payment to any government official or employee from corporate funds, (iii) to violate any provision of the U.S. Foreign Corrupt Practices Act of 1977 or similar law of a jurisdiction in which a Relevant Party conducts its business and to which they are lawfully subject, or (iv) to make any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(U)Eligibility. Each Solar Asset listed on the Schedule of Solar Assets most recently delivered to the Administrative Agent was an Eligible Solar Asset as of such date of delivery of such Schedule of Solar Assets.
(V)Beneficial Ownership Certification. The information included in any Beneficial Ownership Certification delivered by the Borrower is true and correct in all respects.
Article V
Covenants
Section 5.1. Affirmative Covenants. The Borrower covenants and agrees that, until all Obligations (other than contingent obligations not then due) hereunder have been paid in full and the Commitments have been terminated:
(A)Reporting Requirements. The Borrower will furnish to the Administrative Agent and each Lender and, in the case of subclause (v)(a) below, the Paying Agent:
(i)within (a) the earlier of (x) one hundred eighty (180) days after the close of each fiscal year of SEI (beginning with the fiscal year ending December 31, 2019) and (y) such earlier period as required by Applicable Law, the unqualified (provided, however explanatory language added to the auditor’s standard report shall not
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constitute a qualification) audited financial statements for such fiscal year that include the consolidated balance sheet of SEI and its consolidated subsidiaries as of the end of such fiscal year, the related consolidated statements of income, of stockholders’ equity and of cash flows for such fiscal year, in each case, setting forth comparative figures for the preceding fiscal year (it being acknowledged that such requirement with respect to SEI may be satisfied by the filing of the appropriate report on Form 10-K with the Securities and Exchange Commission), and, beginning with the fiscal year ending December 31, 2019, the assets and liabilities of the Parent and the Borrower as of the end of such fiscal year presented in a note or schedule to such financial statements of SEI, and in each case prepared in accordance with GAAP, and audited by a Nationally Recognized Accounting Firm selected by SEI and (b) the earlier of (x) sixty (60) days after the end of each of the first three quarters of its fiscal year and (y) such earlier period as required by Applicable Law, the unaudited consolidated balance sheets and income statements for such fiscal quarter on a year-to-date basis for SEI and its consolidated subsidiaries (it being acknowledged that such requirement with respect to SEI may be satisfied by the filing of the appropriate report on Form 10-Q with the Securities and Exchange Commission);
(ii)if, at any time, Sunnova Management is the Facility Administrator, but is not a subsidiary of SEI, within (a) the earlier of (x) 180 days after the end of each of its fiscal years (beginning with the fiscal year ending December 31, 2019) and (y) such earlier period as required by Applicable Law, a copy of the unqualified (provided, however explanatory language added to the auditor’s standard report shall not constitute a qualification) audited consolidated financial statements for such year for Sunnova Management, containing financial statements for such year and prepared by a Nationally Recognized Accounting Firm selected by Sunnova Management and (b) the earlier of (x) sixty (60) days after the end of each of its fiscal quarters and (y) such earlier period as required by Applicable Law, the unaudited consolidated balance sheets and income statements for such fiscal quarter on a year-to-date basis for Sunnova Management;
(iii)at any time that Sunnova Management is the Facility Administrator, within one hundred eighty (180) days after the end of each of its fiscal years (beginning with the fiscal year ending December 31, 2019), a report prepared by a Qualified Service Provider containing such firm’s conclusions with respect to an examination of certain information relating to Sunnova Management’s compliance with its obligations under the Transaction Documents (including, without limitation, such firm’s conclusions with respect to an examination of the calculations of amounts set forth in certain of Sunnova Management’s reports delivered hereunder and pursuant to the Facility Administration Agreement during the prior calendar year and Sunnova Management’s source records for such amounts), in form and substance satisfactory to the Administrative Agent;
(iv)as soon as possible, and in any event within five (5) Business Days, after the Borrower or any of their ERISA Affiliates knows or has reason to know that an ERISA Event has occurred, a certificate of a responsible officer of the Borrower setting forth the details of such ERISA Event, the action that the Borrower or the ERISA
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Affiliate proposes to take with respect thereto, and, when known, any action taken or threatened by the Internal Revenue Service, Department of Labor or the Pension Benefit Guaranty Corporation;
(v)(a) promptly, and in any event within five (5) Business Days, after a Responsible Officer of any of the Borrower, any Seller, Intermediate Holdco, the Facility Administrator (if it is an Affiliate of the Borrower) or the Parent obtains knowledge thereof, notice of the occurrence of any event that constitutes an Event of Default, a Potential Default, an Amortization Event or a Potential Amortization Event, which notice shall specify the nature thereof, the period of existence thereof and what action the Borrower propose to take with respect thereto and (b) promptly, and in any event within five (5) Business Days after a Responsible Officer of any of the Borrower, any Seller, Intermediate Holdco, the Facility Administrator (if it is an Affiliate of the Borrower) or the Parent obtains knowledge thereof, notice of any other development concerning any litigation, governmental or regulatory proceeding (including environmental law) or labor matter (including ERISA Event) pending or threatened in writing against the (1) Borrower or (2) Parent or SEI that, in the case of this clause (2), individually or in the aggregate, if adversely determined, would reasonably be likely to have a material adverse effect on (1) the ability of the Parent to perform its obligations under the Parent Guaranty, or (2) the business, operations, financial condition, or assets of the SEI or Parent;
(vi)promptly, and in any event within five (5) Business Days after a Responsible Officer of any of the Borrower, any Seller, Intermediate Holdco, the Facility Administrator (if it is an Affiliate of the Borrower) or the Parent obtains knowledge thereof, notice of the occurrence of any event that constitutes a default, an event of default or any event that would permit the acceleration of any obligation under a Sunnova Credit Facility; and
(vii)promptly, and in any event within five (5) Business Days, after receipt thereof by any of the Borrower, any Seller, Intermediate Holdco, the Facility Administrator, the Managing Members, the Financing Funds, the Manager (if it is an Affiliate of the Borrower) or the Parent, copies of all material notices, requests, and other documents (excluding regular periodic reports) delivered or received by the Borrower, any Seller, Intermediate Holdco, the Facility Administrator, the Managing Members, the Financing Funds, the Manager (if it is an Affiliate of the Borrower) or the Parent under or in connection with the Sale and Contribution Agreement, the SAP Contribution Agreement, the Tax Equity Financing Documents, the SAP NTP Financing Documents or the SAP Financing Documents;
(viii)promptly, and in any event within five (5) Business Days, after receipt thereof by any of the Borrower, any Seller, Intermediate Holdco, the Facility Administrator (if it is an Affiliate of the Borrower) or the Parent, copies of all notices and other documents delivered or received by the Borrower with respect to any material tax Liens on Solar Assets (either individually or in the aggregate);
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(ix)on each Funding Date and on each other day on which SAP or a Financing Fund either acquires or disposes of Solar Assets that is included in the Borrowing Base, an updated Schedule IV, an updated Schedule V, an updated Schedule VI and an updated Schedule VII, in each case, to reflect such acquisition or disposition of Solar Assets on such date;
(x)on each Funding Date on which the Borrower acquires a Managing Member from TEP Resources, an updated Schedule VIII and Schedule XII to reflect such acquisition of such Managing Member on such date and any special provisions applicable to such Financing Fund; and
(xi)subject to any confidentiality requirements of the Securities and Exchange Commission, promptly after receipt thereof by SEI or any Subsidiary, copies of each notice or other correspondence received from the Securities and Exchange Commission concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of SEI or any Subsidiary which could reasonably be expected to result in Material Adverse Effect.
(B)Solar Asset Reporting. The Borrower shall:
(i)enforce the provisions of each Management Agreement and Servicing Agreement which require the Manager to deliver any reports to a Financing Fund or SAP; and
(ii)enforce the provisions of the Facility Administration Agreement which require the Facility Administrator to deliver any reports (including the Facility Administrator Report and any Borrowing Base Certificate setting forth detailed calculations of the Borrowing Base) to the Administrative Agent, each Funding Agent and the Paying Agent; and
(iii)within 20 Business Days of the Original Closing Date, cause to be delivered to the Administrative Agent an A-1 Verification Agent Certification with respect to the Solar Assets relating to the initial Advance; and
(iv)on the Scheduled Commitment Termination Date, cause to be delivered to the Administrative Agent an A-2 Verification Agent Certification with respect to all Solar Assets included in the Borrowing Base.
(C)UCC Matters; Protection and Perfection of Security Interests. The Borrower agrees to notify the Administrative Agent in writing of any change (i) in its legal name, (ii) in its identity or type of organization or corporate structure, or (iii) in the jurisdiction of its organization, in each case, within ten (10) days of such change. The Borrower agrees that from time to time, at its sole cost and expense, it will promptly execute and deliver all further instruments and documents, and take all further action necessary or reasonably required by the Administrative Agent (a) to complete all
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assignments from Assignors to each assignee thereunder under each Contribution Agreement, from SAP Seller to TEP Resources and from TEP Resources to the Borrower under the Sale and Contribution Agreement, from a Financing Fund to the Parent or an Affiliate thereof pursuant to a SREC Direct Sale, from the Borrower to SAP under the SAP Contribution Agreement and, with respect to SRECs, from a Financing Fund to the Borrower in accordance with Section 5.2(N), (b) to perfect, protect or more fully evidence the Administrative Agent’s security interest in the Collateral, or (c) to enable the Administrative Agent to exercise or enforce any of its rights hereunder, under the Security Agreement or under any other Transaction Document. Without limiting the Borrower’s obligation to do so, the Borrower hereby irrevocably authorizes the filing of such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary or reasonably required by the Administrative Agent. The Borrower hereby authorizes the Administrative Agent to file one or more financing or continuation statements, and amendments thereto and assignments thereof, naming the Borrower as debtor, relative to all or any of the Collateral now existing or hereafter arising without the signature of the Borrower where permitted by law. A carbon, photographic or other reproduction of the Security Agreement or any financing statement covering the Collateral or any part thereof shall be sufficient as a financing statement.
(D)Access to Certain Documentation and Information Regarding the Solar Assets. The Borrower shall permit (and, as applicable, shall cause the Facility Administrator, the Managing Members, SAP and the Verification Agent to permit) the Administrative Agent (and, as applicable, the Verification Agent) or its duly authorized representatives or independent contractors, upon reasonable advance notice to the Borrower (and, as applicable, the Facility Administrator, the Managing Members, SAP and the Verification Agent), (i) access to documentation that the Borrower, the Facility Administrator, the Managing Members, SAP or the Verification Agent, as applicable, may possess regarding the Solar Assets, (ii) to visit the Borrower, the Facility Administrator, the Managing Members, SAP or the Verification Agent, as applicable, and to discuss their respective affairs, finances and accounts (as they relate to their respective obligations under this Agreement and the other Transaction Documents) with the Borrower, the Facility Administrator, the Managing Members, SAP or the Verification Agent, as applicable, their respective officers, and independent accountants (subject to such accountants’ customary policies and procedures), and (iii) to examine the books of account and records of the Borrower, the Verification Agent, the Facility Administrator, the Managing Members, or SAP, as applicable as they relate to the Solar Assets, to make copies thereof or extracts therefrom, in each case, at such reasonable times and during regular business hours of the Borrower, the Verification Agent, the Facility Administrator, the Managing Members, or SAP as applicable; provided that, upon the existence of an Event of Default, the Class B Lenders shall have the same rights of access, inspection and examination as the Administrative Agent under this Section 5.1(D). The frequency of the granting of such access, such visits and such examinations, and the party to bear the expense thereof, shall be governed by the provisions of Section 7.11 with respect to the reviews of the Borrower’ business operations described
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in such Section 7.11. The Administrative Agent (and, as applicable, the Verification Agent and the Class B Lenders) shall and shall cause their representatives or independent contractors to use commercially reasonable efforts to avoid interruption of the normal business operations of the Borrower, the Verification Agent, the Facility Administrator, the Managing Members or SAP, as applicable. Notwithstanding anything to the contrary in this Section 5.1(D), (i) none of the Borrower, the Verification Agent, the Facility Administrator, the Managing Members or SAP will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (x) constitutes non-financial trade secrets or non-financial proprietary information, (y) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by law or any binding confidentiality agreement, or (z) is subject to attorney-client or similar privilege or constitutes attorney work product and (ii) the Borrower shall have the opportunity to participate in any discussions with the Borrower’s independent accountants.
(E)Existence and Rights; Compliance with Laws. The Borrower shall preserve and keep in full force and effect each Relevant Party’s limited liability company existence, and any material rights, permits, patents, franchises, licenses and qualifications. The Borrower shall comply, and cause each other Relevant Party to, comply with all applicable laws and maintain in place all permits, licenses, approvals and qualifications required for each of them to conduct its business activities to the extent that the lack of compliance thereof would result in a Material Adverse Effect.
(F)Books and Records. The Borrower shall maintain, and cause (if any are Affiliates of the Borrower) the Facility Administrator to maintain, proper and complete financial and accounting books and records. The Borrower shall, and shall cause the Financing Funds and SAP to, maintain with respect to Solar Assets accounts and records as to each Solar Asset that are proper, complete, accurate and sufficiently detailed so as to permit (i) the reader thereof to know as of the most recently ended calendar month the status of each Solar Asset including payments made and payments owing (and whether or not such payments are past due), and (ii) reconciliation of payments on each Solar Asset and the amounts from time to time deposited in respect thereof in the Collection Account, if applicable.
(G)Taxes. The Borrower shall pay, or cause to be paid, when due all Taxes imposed upon any Relevant Party or any of its properties or which they are required to withhold and pay over, and provide evidence of such payment to the Administrative Agent if requested; provided, that no Relevant Party shall be required to pay any such Tax that is being contested in good faith by proper actions diligently conducted if (i) they have maintained adequate reserves with respect thereto in accordance with GAAP and (ii) in the case of a Tax that has or may become a Lien against any of the Collateral, such proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax.
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(H)Maintenance of Properties. The Borrower shall ensure that each Relevant Party’s material properties and equipment used or useful in each of their business in whomsoever’s possession they may be, are kept in reasonably good repair, working order and condition, normal wear and tear excepted, and that from time to time there are made in such properties and equipment all needful and proper repairs, renewals, replacements, extensions, additions, betterments and improvements thereto, in each case, to the extent and in the manner customary for companies in similar businesses.
(I)ERISA. The Borrower shall deliver to the Administrative Agent such certifications or other evidence from time to time prior to the repayment of all Obligations and the termination of all Commitments, as requested by the Administrative Agent in its sole discretion, that (i) no Relevant Party is an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan within the meaning of Section 4975 of the Internal Revenue Code, or a “governmental plan” within the meaning of Section 3(32) of ERISA, (ii) no Relevant Party is subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans, and (iii) assets of the Borrower do not constitute “plan assets” within the meaning of 29 C.F.R. Section 2510.3-101, as modified in application by Section 3(42) of ERISA of any “benefit plan investor” as defined in Section 3(42) of ERISA.
(J)Use of Proceeds. The Borrower will only use the proceeds of the Class A Advances and the Class B Advances as permitted under Section 2.3.
(K)Change of State of Organization; Collections; Names, Etc. (i) In respect of each Assignor, the Sellers, the Facility Administrator, the Managing Members, the Financing Funds and SAP, the Borrower shall notify the Administrative Agent, the Paying Agent and the Verification Agent in writing of any change (a) in such entity’s legal name, (b) in such entity’s identity or type of organization or corporate structure, or (c) in the jurisdiction of such entity’s organization, in each case, within ten (10) days of such change; and
(ii)in the event that the Borrower or any Affiliated Entity thereof receives any Collections directly, the Borrower shall hold, or cause such Affiliated Entity to hold, all such Collections in trust for the benefit of the Secured Parties and deposit, or cause such Affiliated Entity to deposit, such amounts into the Collection Account, as soon as practicable, but in no event later than two (2) Business Days after its receipt thereof.
(L)Insurance. The Borrower shall maintain or cause to be maintained by the Facility Administrator pursuant to the Facility Administration Agreement and by the Manager pursuant to the Managements Agreements, at the Facility Administrator’s and the Manager’s own expenses, insurance coverage (i) by such insurers and in such forms and amounts and against such risks as are generally consistent with the insurance coverage maintained by the Borrower, Facility Administrator, the Manager, the Managing Members, the Financing Funds and SAP as of the Amendment and
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Restatement Date or (ii) as is customary, reasonable and prudent in light of the size and nature of the Borrower’s, the Facility Administrator’s, the Manager’s, the Manager Member’s, the Financing Funds’ and SAP’s respective businesses as of any date after the Amendment and Restatement Date. The Borrower shall be deemed to have complied with this provision if one of its Affiliates has such policy coverage and, by the terms of any such policies, the coverage afforded thereunder extends to the Borrower. Upon the request of the Administrative Agent at any time subsequent to the Original Closing Date, the Borrower shall cause to be delivered to the Administrative Agent, a certification evidencing the Borrower’s, the Facility Administrator’s, the Manager’s, the Manager Member’s, the Financing Funds’ and SAP’s coverage under any such policies.
(M)Maintenance of Independent Director. The Borrower shall maintain at least one individual to serve as an independent director (an “Independent Director”) of the Borrower, (i) which is not, nor at any time during the past six (6) years has been, (a) a direct or indirect beneficial owner, a partner (whether direct, indirect or beneficial), customer or supplier of the Borrower or any of its Affiliates, (b) a manager, officer, employee, member, stockholder, director, creditor, Affiliate or associate of the Borrower or any of its Affiliates (other than as an independent officer, director, member or manager acting in a capacity similar to that set forth herein), (c) a person related to, or which is an Affiliate of, any person referred to in clauses (a) or (b), or (d) a trustee, conservator or receiver for any Affiliate of the Borrower or any of its Affiliates, (ii) which shall have had prior experience as an independent director for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy, and (iii) which shall have at least three (3) years of employment experience with one or more entities with a national reputation and presence that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and is currently employed by such an entity.
(N)The Sale and Contribution Agreement. The Borrower shall make such reasonable requests for information and reports or for action under the Sale and Contribution Agreement to SAP Seller and TEP Resources as the Administrative Agent may reasonably request to the extent that the Borrower is entitled to do the same thereunder.
(O)Management Agreement/Servicing Agreement. The Borrower shall cause the Managing Members to direct the Financing Funds and SAP to keep in full force and effect each Management Agreement and Servicing Agreement or such equivalent replacement agreements such that O&M Services and Servicing Services are provided in respect of the Solar Assets owned by such Person in a manner consistent with the Tax Equity Financing Documents and the SAP Financing Documents and with the same degree of care that the Parent and its Affiliates use to provide similar services to Solar Assets not owned by a Financing Fund or SAP.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(P)Maintenance of Separate Existence. The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shall:
(i)maintain its limited liability company existence, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii)maintain its assets in a manner which facilitates their identification and segregation from those of any of the other Affiliated Entities;
(iii)except as expressly otherwise permitted hereunder, conduct all intercompany transactions or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third parties;
(iv)not assume or guarantee any obligation of any of the other Affiliated Entities, nor have any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity;
(v)except as expressly otherwise permitted hereunder or contemplated under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi)maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access;
(vii)compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii)have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix)pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x)conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity;
(xi)maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii)maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii)except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv)file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv)otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(Q)Updates to Account Schedule. Schedule II attached hereto shall be updated by the Borrower and delivered to the Administrative Agent and each Lender immediately to reflect any changes as to which the notice and other requirements specified in Section 5.2(K) have been satisfied.
(R)Deposits into the Accounts. (i) The Borrower shall (a) direct, or cause to be directed, all Collections other than Collections related to SAP Solar Assets to the Collection Account and all Collections related to SAP Solar Assets to the SAP Lockbox Account, (b) direct, or cause to be directed, all Hedged SREC Counterparties to make all related Hedged SREC Payments directly into the Collection Account and, to the extent any Hedged SREC Payments are deposited by the relevant Hedged SREC Counterparty in another account, cause such payments to be deposited into the Collection Account no later than two (2) Business Days after receipt, and (c) deposit or cause to be deposited all net proceeds of a Takeout Transaction into the Takeout Transaction Account in accordance with Section 2.7(B).
(ii)The Borrower shall not and shall not permit the Managing Members or SAP to deposit into or otherwise credit (or cause to be deposited or credited), or consent to or fail to object to any such deposit or credit of, cash or cash proceeds other than Collections into the Collection Account or the SAP Lockbox Account.
(S)Hedging. The Borrower shall at all times satisfy the Hedge Requirements. To the extent the Borrower is required to terminate one or more Hedge Agreements in order to satisfy the Hedge Requirements, the Borrower shall terminate such Hedge Agreements in the order in which they are entered into.
(T)Update to Solar Assets. The Borrower shall notify the Facility Administrator and the Administrative Agent in writing of any additions or deletions to the Schedule of Solar Assets, no later than each Funding Date and each Payment Date (which in the case of the update delivered on any Payment Date shall be prepared as of the last day of the related Collection Period).
(U)Notice to SAP Seller, TEP Resources and Parent. The Borrower shall promptly notify SAP Seller, TEP Resources and the Parent of a breach of Section 4.1(U) and shall require SAP Seller or the Parent to cure such breach or pay the Liquidated Damages Amount for such Defective Solar Asset pursuant to and in accordance with the Sale and Contribution Agreement or the Parent Guaranty, as applicable.
(V)Government Approvals. The Borrower shall promptly obtain all orders, consents, authorizations, approvals, licenses and validations of, or file recordings, register with, or obtain exemption from, any Governmental Authority required as a condition to the performance of its obligations under any Transaction Document.
(W)Underwriting and Reassignment Credit Policy. The Borrower shall provide or shall cause the Parent to provide, to the Administrative Agent (with a copy to each Lender) all proposed revisions to the Underwriting and Reassignment Credit Policy. Exhibit J shall be deemed to be amended to include such revisions upon the consent of the Administrative Agent, the Majority Lenders and the Majority Class B Lenders, in each case, in their reasonable discretion; provided, that consent by the Majority Class B Lenders shall not be unreasonably withheld, conditioned or delayed if otherwise approved by the Majority Lenders; provided, further, that if the Majority Class
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
B Lenders have not affirmatively disapproved such revisions in writing within five (5) Business Days of receiving such revisions and the Majority Lenders have otherwise approved such revisions, such revisions shall be deemed approved by the Majority Class B Lenders.
(X)Deviations from Approved Forms. The Borrower shall provide or shall cause the applicable Seller to provide, to the Administrative Agent (with a copy to each Lender) all proposed forms of Solar Service Agreements which deviate in any material respect from a form attached hereto as Exhibit G (each such form a “Proposed Form”) and shall provide notice to the Administrative Agent (with a copy to each Lender) regarding the cessation of a form of Solar Service Agreement attached hereto as Exhibit G or previously delivered hereunder. The Administrative Agent shall use its best efforts to notify the Borrower in writing within ten (10) Business Days of receipt of a Proposed Form of its objection or approval of the terms of such Proposed Form. Upon the written approval of the Administrative Agent, such approval not to be unreasonably withheld or delayed, Exhibit G shall be deemed to be amended to include such Proposed Form as a Solar Service Agreement in addition to the other forms attached or previously delivered hereunder. The Borrower shall, no less frequently than once per calendar quarter, provide or shall cause the applicable Seller to provide, to the Administrative Agent (with copies to each Lender) all forms of Solar Service Agreements that incorporate changes which do not deviate materially from a form attached hereto as Exhibit G. Upon receipt of such forms of Solar Service Agreements, Exhibit G shall be deemed to be amended to include such forms in addition to the other forms attached or previously delivered hereunder.
(Y)Beneficial Owner Certification. Promptly following any request therefor, the Borrower shall provide such information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws.
Section 5.2. Negative Covenants. The Borrower covenants and agrees that, until all Obligations (other than contingent obligations not then due) hereunder have been paid in full, the Borrower will not:
(A)Business Activities. (x) Conduct any business other than:
(i)the acquisition from time to time of any or all right, title and (direct or indirect) interest in and to (1) Solar Assets and Solar Asset Owner Membership Interests and all rights and interests thereunder or relating thereto pursuant to the Sale and Contribution Agreement and (2) SRECs in accordance with Section 5.2(N);
(ii)the conveyance from time to time of Solar Asset Owner Member Interests, SAP Solar Assets or Hedged SREC Solar Assets in connection with a Takeout Transaction, the conveyance of Solar Assets to SAP and the sale or transfer of any Excess SRECs;
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(iii)the origination of Hedged SREC Agreements;
(iv)the execution and delivery by the Borrower from time to time of purchase agreements, in form and substance satisfactory to the Administrative Agent, related to the sale of securities by the Borrower or any of their Affiliates in connection with a Takeout Transaction;
(v)the performance by the Borrower of all of its obligations under the aforementioned agreements and under this Agreement and any documentation related thereto;
(vi)the preparation, execution and delivery of any and all other documents and agreements as may be required in connection with the performance of the activities of the Borrower approved above; and
(vii)to engage in any lawful act or activity and to exercise any powers permitted under the Delaware Limited Liability Company Act that are reasonably related, incidental, necessary, or advisable to accomplish the foregoing; or
(a)permit the Managing Members or SAP to conduct any business other than the transactions contemplated by the Tax Equity Financing Documents.
Notwithstanding the foregoing, after the Original Closing Date and at any time on or prior to the earlier of (a) the Maturity Date and (b) the date on which all Obligations (other than contingent obligations not then due) of the Borrower hereunder have been paid in full, the Borrower shall not, without the prior written consent of the Administrative Agent and the Majority Lenders (1) purchase or otherwise acquire any Solar Assets or Solar Asset Owner Membership Interests, or interests therein, except for acquisitions from TEP Resources pursuant to and in accordance with the Sale and Contribution Agreement, (2) convey or otherwise dispose of any Collateral or interests therein, other than permitted under Sections 5.2(A)(ii) or 5.2(E) or the SAP Contribution Agreement, or (3) establish any Subsidiaries; provided, that notwithstanding this paragraph, the Borrower may continue to own directly or indirectly interests in the Financing Funds and SAP, which shall purchase and acquire Solar Assets in accordance with the terms of the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, as applicable.
(B)Sales, Liens, Etc. Except as permitted hereunder (i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Lien upon or with respect to, the Collateral or any portion thereof, or upon or with respect to the Collection Account or any other account owned by or in the name of the Borrower or SAP to which any Collections are sent, or assign any right to receive income in respect thereof, or (ii) create or suffer to exist any Lien upon or with respect to any of its properties, whether now owned or hereafter acquired, or assign any right to receive income, to secure or provide for the payment of any Indebtedness of any Person or for
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
any other reason; provided that notwithstanding anything to the contrary herein, this Section 5.2(B) shall not prohibit (x) any Lien that constitutes a Permitted Lien or a Permitted Equity Lien, (y) a SAP Transfer or (z) so long as notice is given to Administrative Agent (with a copy to each Lender) under any Facility Administrator Report of any of the following, any actions permitted under Sections 5.2(A)(ii).
(C)Indebtedness. Incur or assume any Indebtedness, except Permitted Indebtedness.
(D)Loans and Advances. Make any loans or advances to any Person.
(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 Transferable Assets to TEP Resources pursuant to the Sale and Contribution Agreement;
(ii)distributions of cash by the Borrower to the Borrower's Account in accordance with Section 2.7(B)(xiv);
(iii)distributions of Solar Assets that were Substantial Stage Solar Assets or Final Stage Solar Assets in accordance with a SAP Transfer;
(iv)transfers, dividends or other distributions of Service Incentives;
(v)transfers, dividends or other distributions of Solar Asset Owner Member Interests, SAP Solar Assets or Hedged SREC Solar Assets in connection with a Takeout Transaction;
(vi)transfers, dividends or other distributions of SREC Direct Sale Proceeds; or
(vii)transfers, dividends or other distributions of Excess SRECs and Excess SREC Proceeds;
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.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(F)Mergers, Etc. Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any Person, except in connection with the acquisition or sale of Solar Assets or Solar Asset Owner Membership Interests and similar property pursuant to the Sale and Contribution Agreement, in connection with a Takeout Transaction or an acquisition or sale where all Obligations have been paid in full with all accrued but unpaid interest thereon and any related Liquidation Fees.
(G)Investments. Make any investment of capital in any Person either by purchase of stock or securities, contributions to capital, property transfer or otherwise or acquire or agree to acquire by any manner any business of any Person except pursuant to the transactions contemplated herein and in the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents.
(H)Change in Organizational Documents. Amend, modify or otherwise change any of the terms or provisions in its organizational documents as in effect on the date hereof without the consent of the Administrative Agent and the Majority Lenders.
(I)Transactions with Affiliates. Enter into, or be a party to, any transaction with any of its Affiliates, except (i) the transactions contemplated by the Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents, the Tax Equity Financing Documents or any similar conveyance agreement entered into in connection with a Takeout Transaction or SAP Transfer, (ii) any other transactions (including the lease of office space or computer equipment or software by the Borrower from an Affiliate and the sharing of employees and employee resources and benefits) (a) in the ordinary course of business or as otherwise permitted hereunder, (b) pursuant to the reasonable requirements and purposes of the Borrower’s business, (c) upon fair and reasonable terms (and, to the extent material, pursuant to written agreements) that are consistent with market terms for any such transaction, and (d) permitted by Sections 5.2(B), (C), (E) or (F), (iii) employment and severance arrangements and health, disability and similar insurance or benefit plans between the Borrower and its directors, officers, employees in the ordinary course of business, and (iv) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers and employees of any parent entity of the Borrower to the extent attributable to the ownership or operation of the Borrower.
(J)Addition, Termination or Substitution of Accounts. Add, terminate or substitute, or consent to the addition, termination or substitution of, the Collection Account, the Supplemental Reserve Account, the Liquidity Reserve Account, the SAP Lockbox Account (including any termination, revocation or substitution of the standing instructions to sweep amounts on deposit in the SAP Lockbox Account into the SAP Revenue Account on a daily basis as set forth in Section 4.1(G)), the SAP Revenue Account or the Takeout Transaction Account unless the Administrative Agent and the Majority Lenders shall have consented thereto after having received at least thirty
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(30) days’ prior written notice thereof. Notwithstanding the foregoing, the Borrower neither has nor shall have any control over the Collection Account, the Supplemental Reserve Account, the Liquidity Reserve Account, the SAP Lockbox Account, the SAP Revenue Account or the Takeout Transaction Account. For the avoidance of doubt, any Financing Fund Contributions shall not be controlled or distributed through the Paying Agent Accounts.
(K)Collections. (i) Deposit at any time Collections into any bank account other than in accordance with Section 5.1(R), (ii) make any change to the payment instructions to a Financing Fund, a Managing Member or SAP in respect of the Solar Asset Owner Member Interests to any other destination other than the Collection Account, (iii) make any change to the payment instructions to any Hedged SREC Counterparty or direct any Hedged SREC Counterparty to make any Hedged SREC Payments to go to any destination other than the Collection Account, or (iv) permit the assets of any Person (other than the Borrower) to be deposited into the Collection Account.
(L)Amendments to Transaction Documents. (x) Without the consent of the Administrative Agent and subject to Section 10.2, amend, modify or otherwise change any of the terms or provisions of any Transaction Document other than (i) supplements identifying Solar Assets and/or Solar Asset Owner Membership Interests to be transferred in in accordance with the Sale and Contribution Agreement, (ii) supplements identifying Solar Assets to be financed in connection with each Funding Date, (iii) amendments, supplements or other changes in accordance with the terms of the applicable Transaction Document, the SAP Financing Documents, the SAP NTP Financing Documents or Tax Equity Financing Document, and (iv) amendments, supplements or other changes with respect to exhibits and schedules to any Transaction Document, the SAP Financing Documents, the SAP NTP Financing Documents or Tax Equity Financing Document that would not reasonably be expected to have a material adverse effect on the value, enforceability, or collectability of the Collateral or adversely affect Collections and (y) without the consent of the Majority Class B Lenders, amend, modify or otherwise change the Parent Guaranty or Section 8 of the Sale and Contribution Agreement.
(M)Bankruptcy of Tax Equity Parties. Without the consent of the Administrative Agent, the Borrower shall not, directly or indirectly, cause the institution of bankruptcy or insolvency proceedings against a Tax Equity Party.
(N)SRECs. The Borrower shall not acquire SRECs directly or indirectly from a Financing Fund unless such acquisition (i) is pursuant to distribution of such SRECs from such Financing Fund, (ii) does not require the Borrower to purchase such SRECs or otherwise make any conveyance in exchange for such SRECs and (iii) is made pursuant to documentation acceptable to the Administrative Agent.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 5.3. Covenants Regarding the Solar Asset Owner Member Interests. The Borrower covenants and agrees, that, until all Obligations (other than contingent obligations not then due) hereunder have been paid in full, the Borrower shall:
(A)determine whether or not to exercise each Purchase Option in accordance with the Purchase Standard. The Borrower will make such determination, and if it determines to do so, will exercise such Purchase Option, no later than 60 days following the related Call Date in accordance with the terms and conditions of the related Financing Fund LLCA. Such determination will take into account whether sufficient funds are available in the Supplemental Reserve Account to pay the related Purchase Option Price, and if such funds are not then available in the Supplemental Reserve Account, the Borrower shall make a determination, in accordance with the Purchase Standard, whether to exercise such Purchase Option as soon thereafter as such funds are available in the Supplemental Reserve Account. Upon the Borrower’s exercise and completion of a Purchase Option or the exercise and completion of the TEP V-E Withdrawal Right by the related Tax Equity Investor Member, the Borrower shall (i) instruct the related Financing Fund to pay all distributions to be made by such Financing Fund to the Borrower in respect of the Managing Member Interests and the Tax Equity Investor Interests directly to the Collection Account and deliver to the Administrative Agent the original certificate of the related Managing Member Interests and the related Tax Equity Investor Interests together with instruments of transfer executed in blank, (ii) cause the Managing Members to execute and deliver to the Administrative Agent an Accession Agreement to the Pledge Agreement covering the Tax Equity Investor Interest acquired pursuant to the Purchase Option or the TEP V-E Withdrawal Right, as applicable, and (iii) cause the Managing Members to amend the related Financing Fund LLCA to require such Financing Fund to have at all times an Independent Director;
(B)(x) cause the Managing Members (i) to cause each Financing Fund to make all Managing Member Distributions directly to the Collection Account and (ii) to deliver to the Administrative Agent for deposit into the Collection Account any Managing Member Distributions received by the Managing Members and (y) cause SAP to (i) make all SAP Distributions directly to the Collection Account and (ii) to deliver to the Administrative Agent for deposit into the Collection Account any SAP Distributions received by SAP;
(C)cause each of the Managing Members and SAP to comply with the provisions of its operating agreement and not to take any action that would cause the Managing Members to violate the provisions of the related Financing Fund LLCA;
(D)cause each of the Managing Members and SAP to maintain all material licenses and permits required to carry on its business as now conducted and in accordance with the provisions of the Transaction Documents, except to the extent the failure to do so could not reasonably be expected to have a material adverse effect on the interests of the Administrative Agent or the Lenders;
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(E)not permit or consent to the admission of any new member of the Managing Members or SAP other than a successor independent member in accordance with the provisions of their respective operating agreements;
(F)cause the Managing Members not to permit or consent to the admission of any new member of a Financing Fund other than pursuant to the exercise of a Purchase Option by the Managing Member or the exercise of the TEP V-E Withdrawal Right by the related Tax Equity Investor Member;
(G)(i) cause the Managing Members not to make any material amendment to a Tax Equity Financing Document that could reasonably be expected to have a material adverse effect on the interests of the Administrative Agent or the Lenders and (ii) cause the Managing Members and SAP not to make any material amendment to their respective operating agreements that could reasonably be expected to have a material adverse effect on the interests of the Administrative Agent or the Lenders;
(H)cause the Managing Members on its own behalf and on behalf of each Financing Fund (i) to comply with and enforce the provisions of the Tax Loss Insurance Policies and (ii) not to consent to any amendment to a Tax Loss Insurance Policy to the extent that such amendment could reasonably be expected to have a material adverse effect on the interests of the Administrative Agent or the Lenders;
(I)cause the Managing Members to cause each Financing Fund to comply with the provisions of each respective Financing Fund LLCA and not take any action that would violate the provisions of such Financing Fund LLCA;
(J) cause the Managing Members to cause each Financing Fund and cause the Managing Members and SAP to maintain all material licenses and permits required to carry on its business as now conducted and in accordance with the provisions of the SAP Financing Documents, the SAP NTP Financing Documents and the Tax Equity Financing Documents, except to the extent the failure to do so could not reasonably be expected to have a material adverse effect on the interests of the Administrative Agent or the Lenders;
(K)cause the Managing Members to cause the related Financing Funds not to incur any indebtedness or sell, dispose of or other encumber any of its assets other than as permitted by the Transaction Documents; and
(L)cause the Managing Members to obtain the consent of the Administrative Agent for (i) any Major Actions to be taken (other than amendments to Tax Equity Financing Documents, which shall be governed by Section 5.3(G)(i)) or (ii) any action that could reasonably be expected to cause a Material Adverse Effect.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Article VI
Events of Default
Section 6.1. Events of Default. The occurrence of any of the following specified events shall constitute an event of default under this Agreement (each, an “Event of Default”):
(A)Non-Payment. (i) The Borrower shall fail to make any required payment of principal (excluding any payment required to be made to cure a Class B-I Borrowing Base Deficiency, a Class B-II Borrowing Base Deficiency or a Class B Aggregate Borrowing Base Deficiency during the Amortization Period) or interest when due hereunder (excluding Additional Interest Distribution Amounts during the Amortization Period) and such failure shall continue unremedied for two (2) Business Days after the day such payment is due or (ii) the Borrower shall fail to pay the Aggregate Outstanding Advances by the Maturity Date, or (iii) the Borrower shall fail to make any required payment on any other Obligation when due hereunder or under any other Transaction Document and such failure under this sub-clause (iii) shall continue unremedied for five (5) Business Days after the earlier of (a) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or (b) the date upon which a Responsible Officer of the Borrower obtained knowledge of such failure.
(B)Representations. Any representation or warranty made or deemed made by the Borrower (other than pursuant to Section 4.1(U) hereof or, with respect to the Parent only, Section 4.1(L) hereof), a Seller, TEP Resources, the Parent, the Facility Administrator, the Managing Members or SAP herein or in any other Transaction Document (after giving effect to any qualification as to materiality set forth therein, if any) shall prove to have been inaccurate in any material respect when made and such defect, to the extent it is capable of being cured, is not cured within thirty (30) days from the earlier of the date of receipt by the Borrower, the Parent, a Seller, TEP Resources, the Facility Administrator, the Managing Members or SAP as the case may be, of written notice from the Administrative Agent of such failure by the Borrower, the Parent, the Facility Administrator, a Seller, TEP Resources, the Managing Members or SAP, as the case may be, of such failure.
(C)Covenants. The Borrower, a Seller, TEP Resources, the Facility Administrator, the Managing Members or SAP shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Transaction Document which has not been cured within thirty (30) days from the earlier of the date of receipt by the Borrower, a Seller, TEP Resources, the Facility Administrator, the Managing Members or SAP, as the case may be, of written notice from the Administrative Agent of such failure by the Borrower, a Seller, TEP Resources, the Facility Administrator, the Managing Members or SAP, as the case may be, of such failure.
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(D)Validity of Transaction Documents. This Agreement or any other Transaction Document shall (except in accordance with its terms), in whole or in part, cease to be (i) in full force and effect and/or (ii) the legally valid, binding and enforceable obligation of a Seller, TEP Resources, the Borrower, the Parent, the Facility Administrator, a Managing Member or SAP.
(E)Insolvency Event. An Insolvency Event shall have occurred with respect to Parent, a Seller, TEP Resources, Borrower, the Facility Administrator, a Managing Member, SAP or a Financing Fund.
(F)Breach of Parent Guaranty; Failure to Pay Liquidated Damages Amounts. Any failure by Parent to perform under the Parent Guaranty; provided that a breach by Parent of the Financial Covenants is not an Event of Default hereunder, or any failure of a Seller or TEP Resources to pay Liquidated Damages Amounts pursuant to the Sale and Contribution Agreement.
(G)ERISA Event. Either (i) any ERISA Event shall have occurred or (ii) the assets of the Borrower become subject to Title I of ERISA, Section 4975 of the Internal Revenue Code, or, by reason of any investment in the Borrower by any governmental plan, as the case may be, any other federal, state, or local provision similar to Section 406 of ERISA or Section 4975 of the Internal Revenue Code.
(H)Borrowing Base Deficiency. A Class A Borrowing Base Deficiency or, during the Availability Period, a Class B-I Borrowing Base Deficiency, a Class B-II Borrowing Base Deficiency or Class B Aggregate Borrowing Base Deficiency continues for more than two (2) Business Days.
(I)Security Interest. The Administrative Agent, for the benefit of the Lenders, ceases to have a first priority perfected security interest in Collateral having a value in excess of $150,000 and such failure shall continue unremedied for more than five (5) Business Days unless such Liens with a higher priority than Agent’s Liens are Permitted Liens or Permitted Equity Liens; provided that if such cessation in security interest is due to Administrative Agent’s actions, then no Event of Default shall be deemed to occur under this Section 6.1(I).
(J)Judgments. There shall remain in force, undischarged, unsatisfied, and unstayed for more than thirty (30) consecutive days, any final non-appealable judgment against any Relevant Party in excess of $250,000 or the Parent in excess of $1,000,000, in each case over and above the amount of insurance coverage available from a financially sound insurer that has not denied coverage.
(K)1940 Act. Any Relevant Party becomes, or becomes controlled by, an entity required to register as an “investment company” under the 1940 Act.
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(L)Hedging. Failure of the Borrower to maintain Hedge Agreements satisfying the Hedge Requirements and such failure continues for five (5) Business Days or any Hedge Counterparty ceases to be a Qualifying Hedge Counterparty and such Hedge Counterparty is not replaced with a Qualifying Hedge Counterparty within ten Business Days.
(M)Change of Control. The occurrence of a Change of Control.
(N)Financing Fund Material Adverse Effect. The occurrence of any event that results in a Material Adverse Effect (as defined in the Financing Fund LLCA) with respect to a Managing Member or a Financing Fund.
(O)Replacement of Manager. The Manager resigns, removed or is replaced under a Management Agreement or a Servicing Agreement and, in each case, a replacement Manager, acceptable to the Administrative Agent has not accepted an appointment under such agreement within 60 days of such resignation or removal.
(P)Parent Material Adverse Effect. A representation or warranty made or deemed made by the Borrower pursuant to Section 4.1(L) hereof regarding the Parent shall prove to have been inaccurate in any material respect when made and such defect, to the extent it is capable of being cured, is not cured within ninety (90) days from the earlier of the date of receipt by the Borrower of written notice from the Administrative Agent of such failure by the Borrower.
(Q)Resignation or Removal of Managing Member. A Managing Member resigns or is removed under a Financing Fund LLCA.
Section 6.2. Remedies. If any Event of Default shall then be continuing, the Administrative Agent (i) may, in its discretion, or (ii) shall, upon the written request of the Majority Lenders, by written notice to the Borrower and the Lenders, take any or all of the following actions, without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against the Borrower in any manner permitted under applicable law:
(A)declare the Commitments terminated, whereupon the Commitment of each Lender shall forthwith terminate immediately without any other notice of any kind;
(B)declare the principal of and any accrued interest in respect of the Class A Advances, the Class B Advances and all other Obligations owing hereunder and thereunder to be, whereupon the same shall become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; provided, that, upon the occurrence of an Insolvency Event with respect to the Borrower, the principal of and any accrued interest in respect of the Advances and all other Obligations owing hereunder shall be immediately due and payable without any notice to the Borrower or Lenders;
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(C)if the Facility Administrator is Sunnova Management, replace the Facility Administrator with a Successor Facility Administrator in accordance with the Facility Administration Agreement; and/or
(D)foreclose on and liquidate the Collateral or to the extent permitted by the Tax Equity Financing Documents, the Solar Assets owned by a Financing Fund, and pursue all other remedies available under the Security Agreement, the Pledge Agreement, the Subsidiary Guaranty and the other Transaction Documents, subject to the terms of the Tax Equity Financing Documents.
Section 6.3. Class B Buyout Option
(A)The Administrative Agent shall provide prompt written notice (the “Triggering Event Notice”) to the Class B Lenders if an Event of Default shall have occurred and (i) the Administrative Agent shall have declared the Class A Advances, the Class B Advances and all other Obligations hereunder and thereunder immediately due and payable, (ii) the Administrative Agent shall have commenced enforcement proceedings against the Borrower and the Collateral or (iii) an Event of Default shall be continuing for sixty (60) days and the Administrative Agent shall not have commenced enforcement proceedings against the Borrower and the Collateral; provided, however, that, in no event shall the Administrative Agent be obligated to send to the Class B Lenders more than one (1) Triggering Event Notice in respect of any single event or occurrence as to which such notice relates. The Triggering Event Notice shall include the bank account information for payment of the Class B Buyout Amount and the following (including supporting detail) without duplication: (i) the aggregate principal amount of the Class A Advances, interest and fees with respect thereto (but excluding any prepayment fees or penalties), the fees, expenses and indemnities due the Administrative Agent, and all other Obligations owing to the Class A Lenders then outstanding and unpaid and (ii) the Obligations owing to the Class A Lenders expected to accrue through the Class B Buyout Option Exercise Date (provided that any such amounts that are not earned or actually due and owing as of the Class B Buyout Option Exercise Date shall not be required to be paid on the Class B Buyout Option Exercise Date) and (iii) the amount of all liabilities that have been incurred by the Borrower under Section 10.5 to the Class A Lenders (such amounts in clause (iii), the “Class A Indemnified Liabilities”, and such amounts in clauses (i) through (iii), collectively, “Estimated Class B Buyout Amount”).
(B)The Class B Lenders shall have the option (the “Class B Buyout Option”), exercised by delivery of a written notice to the Administrative Agent (a “Class B Buyout Notice”), to purchase all (but not less than all) of the aggregate principal amount of the Class A Advances, together with interest and fees due with respect thereto, and all other Obligations owing to the Class A Lenders (collectively, the “Class B Purchase Rights”). Unless the Administrative Agent (acting at the direction of the Majority Lenders), in each case, agrees in writing to a longer time period, the Class B Purchase Right shall be exercisable by any one or more Class B Lenders for a period of 10 Business Days, commencing on the date on which the Administrative Agent provides the Triggering
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Event Notice (each such date, a “Class B Purchase Right Termination Date”). The Class A Lenders shall retain all rights to be indemnified or held harmless by the Borrower in accordance with the terms of this Agreement with respect to any contingent claims for indemnification or cost reimbursement that are not paid as part of the Class B Buyout Amount. Prior to the applicable Class B Purchase Right Termination Date, any one or more Class B Lenders may exercise the Class B Purchase Right (each, a “Buyout Class B Lender”) by delivering the Class B Buyout Notice, which notice (i) shall be irrevocable (unless the final Class B Buyout Amount is more than $100,000 higher than the Estimated Class B Buyout Amount set forth in the Triggering Event Notice, in which case such Class B Buyout Option Notice may be revoked in the sole and absolute discretion of the applicable Class B Lender at any time prior to the Class B Buyout Option Exercise Date), (ii) shall state that each such Class B Lender is electing to exercise the Class B Purchase Rights (ratably based on the aggregate Class B Commitments of the Non-Conduit Lenders related to each Buyout Class B Lender over the aggregate Class B Commitments of the Non-Conduit Lenders related to all Buyout Class B Lenders or such other allocation as the related Class B Lenders shall agree) and (iii) shall specify the date on which such right is to be exercised by such Class B Lenders (such date, the “Class B Buyout Option Exercise Date”), which date shall be a Business Day not more than fifteen (15) Business Days after receipt by the Administrative Agent of such notice(s).
(C)On the Business Day prior to the Class B Buyout Option Exercise Date, the Administrative Agent shall deliver to each Buyout Class B Lender a written notice specifying (without duplication) the aggregate outstanding principal balance of the Class A Advances, interest and fees with respect thereto (but excluding any prepayment fees or penalties) and all other Obligations owing to the Class A Lenders then outstanding and unpaid as of the Class B Buyout Option Exercise Date and, subject to and in accordance with Section 10.5, Class A Indemnified Liabilities then outstanding and unpaid of which it is then aware (collectively, the “Class B Buyout Amount”). On the Class B Buyout Option Exercise Date, the Administrative Agent shall cause the Class A Lenders to sell, and the Class A Lenders shall sell, to the Buyout Class B Lenders their respective pro rata portions of the Class B Buyout Amounts, and such Class B Lenders shall purchase from the Class A Lenders, at their respective pro rata portions of the Class B Buyout Amount, all of the Class A Advances. The Class A Lenders shall cooperate with the Administrative Agent in effectuating such sales of their respective Class A Advances.
(D)Upon the date of such purchase and sale, each Buyout Class B Lender shall (i) pay to the Class A Lenders its pro rata portion of the Class B Buyout Amount therefor and (ii) agree to indemnify and hold harmless the Administrative Agent and the Class A Lenders from and against any loss, liability, claim, damage or expense (including reasonable fees and expenses of legal counsel and indemnification) arising out of any claim asserted by a third party as a direct result of any acts by the Buyout Class B Lenders occurring after the date of such purchase (but excluding, for the avoidance of doubt, any such loss, liability, claim, damage or expense resulting from the gross negligence, bad faith or willful misconduct of the Administrative Agent or any Class A
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Lender seeking indemnification). The Class B Buyout Amount and other sums shall be remitted by wire transfer of immediately available funds to the bank account set forth in the Triggering Event Notice. In connection with the foregoing purchase, accrued and unpaid interest on the Class A Loans shall be calculated through the Business Day on which such purchase and sale shall occur if the amounts so paid by the Buyout Class B Lenders to the bank account designated by the Class A Lenders are received in such account prior to at before 1:00 p.m., New York time and interest shall be calculated to and include the next Business Day if the amounts so paid by the Buyout Class B Lenders to the bank account designated by the Class A Lenders are received in such Account later than 1:00 p.m., New York time.
(E)Any purchase pursuant to this Section 6.3 shall be expressly made without representation or warranty of any kind by the Class A Lenders, the Administrative Agent or any other Person as to the Obligations owing to the Class A Lenders or otherwise and without recourse to the Class A Lenders, the Administrative Agent or any other Person, except that the Class A Lenders shall represent and warrant: (i) the amount of Class A Advances being purchased and that the purchase price and other sums payable by the Buyout Class B Lenders are true, correct and accurate amounts, (ii) that the Class A Lenders shall convey all right, title and interest in and to the Class A Advances free and clear of any Liens of the Class A Lenders or created or suffered to exist by the Class A Lenders, (iii) as to the absence of any claims made or threatened in writing against the Class A Lenders related to the Class A Advances, and (iv) the Class A Lenders are duly authorized to assign the Class A Advances.
Section 6.4. Sale of Collateral
(A)The power to effect any sale of any portion of the Collateral upon the occurrence and during the continuance of an Event of Default pursuant to this Article VI, the Security Agreement, the Pledge Agreement and the SAP Lockbox Account Control Agreement shall not be exhausted by any one or more sales as to any portion of the Collateral remaining unsold, but shall continue unimpaired until all Collateral shall have been sold or until all Obligations (other than contingent obligations not then due) hereunder have been paid in full. The Administrative Agent acting on its own or through an agent, may from time to time postpone any sale by public announcement made at the time and place of such sale.
(B)Notwithstanding anything to the contrary set forth herein, but subject in all events to clause (v) of this Section 6.4(B), if the Administrative Agent (acting at the written direction of the Majority Lenders) elects to solicit and accept bids in connection with, and to sell or dispose of, the Collateral, the Administrative Agent shall deliver a notice (a “Collateral Sale Notice”) of such sale to the Borrower and the Lenders. The date of the intended sale of Collateral (the “Intended Collateral Sale Date”) need not be specified in the Collateral Sale Notice but shall be a date after the related Class B Purchase Right Termination Date described in Section 6.3(B). The Collateral Sale Notice shall include the following (including supporting detail) without duplication: (i) the
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aggregate principal amount of the Class A Advances, interest and fees with respect thereto (but excluding any prepayment fees or penalties), the fees, expenses and indemnities due the Administrative Agent, and all other Obligations owing to the Class A Lenders then outstanding and unpaid, (ii) the Obligations owing to the Class A Lenders expected to accrue through the Intended Collateral Sale Date (provided that any such amounts that are not earned or actually due and owing as of the Intended Collateral Sale Date shall not be required to be paid on the Intended Collateral Sale Date) and (iii) the amount of Class A Indemnified Liabilities. Following receipt of the Collateral Sale Notice:
(i)The Class B Lenders shall have the right to purchase all (but not less than all) of the Collateral (the “Class B Collateral Purchase Right”) at a price equal to (without duplication) the aggregate principal amount of the Class A Advances, interest and fees with respect thereto (but excluding any prepayment fees or penalties), the fees, expenses and indemnities due the Administrative Agent, and all other Obligations owing to the Class A Lenders then outstanding and unpaid as of the Intended Collateral Sale Date and, subject to and in accordance with Section 10.5, Class A Indemnified Liabilities then outstanding and unpaid of which it is then aware (collectively, the “Class B Collateral Purchase Amount”). If any Class B Lender desires to exercise its Class B Collateral Purchase Right, it shall send a written notice (a “Class B Collateral Exercise Notice”) to the Administrative Agent no later than the thirtieth (30th) day after receipt of the Collateral Sale Notice (the “Class B Collateral Exercise Deadline”) irrevocably and unconditionally agreeing to purchase all (but not less than all) of the Collateral on a Business Day which is no later than the fifth (5th) Business Day following delivery of its Class B Collateral Exercise Notice (the “Class B Collateral Purchase Date”) at a price equal to the Class B Collateral Purchase Amount.
(ii)If the Administrative Agent receives only one Class B Collateral Exercise Notice prior to the Class B Collateral Exercise Deadline, then the Class B Lender who delivered such Class B Collateral Exercise Notice shall be deemed to have exercised the Class B Collateral Purchase Right and shall be obligated to purchase all (but not less than all) of the Collateral on the Class B Collateral Purchase Date on terms and at a price equal to the Class B Collateral Purchase Amount.
(iii)If the Administrative Agent receives more than one Class B Collateral Exercise Notice prior to the Class B Collateral Exercise Deadline (the senders of such Class B Collateral Exercise Notice, each a “Bidder”), the Administrative Agent shall schedule a meeting or conference call (the “Final Auction”) for 10:00 a.m. (or such other time as may be acceptable to the Administrative Agent and each Bidder) on the date that is two (2) Business Days prior to the Class B Collateral Purchase Date. At such meeting or on such call, each Bidder shall be entitled to make one or more irrevocable and unconditional bids to purchase all (but not less than all) of the Collateral on the Class B Collateral Purchase Date at an all cash price greater than the Class B Collateral Purchase Amount. The Final Auction shall conclude upon the earlier of (a) the time when all Bidders (other than the Bidder who made the then highest bid) confirm they will not
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make any further bids and (b) thirty (30) minutes having elapsed since the making of the then highest bid. The Bidder that has made the highest bid when the Final Auction has concluded shall be deemed to have exercised the Class B Collateral Purchase Right and shall be obligated irrevocably and unconditionally to purchase all (but not less than all) of the Collateral on the Class B Collateral Purchase Date at a price equal to such highest bid.
(iv)If the Administrative Agent receives no Class B Collateral Exercise Notice prior to the Class B Collateral Exercise Deadline or the sale of the Collateral is for any reason not consummated on the Class B Collateral Purchase Date, the Class B Collateral Purchase Right shall terminate automatically without notice or any action required on the part of any Person and the Administrative Agent shall, subject to the terms of this Agreement, proceed with a sale of the Collateral (or rights or interests therein), at one or more public or private sales as permitted by law. Each of the Lenders may bid on and purchase the Collateral (or rights or interest therein) at such a sale.
(v)Notwithstanding anything to the contrary contained in this Section 6.4(B), the Majority Lenders agree not to instruct the Administrative Agent to solicit and accept bids in connection with, or to sell or dispose of, the Collateral following the occurrence of an Event of Default unless and until (i) no Class B Lender shall have duly delivered to the Administrative Agent pursuant to Section 6.3 a Class B Buyout Notice for such Class B Lender on or prior to the related Class B Purchase Right Termination Date or (ii) the Class B Lenders who have delivered timely Class B Buyout Notice(s) shall have failed to pay the Class B Buyout Amount for such Class B Lender in full on the related Class B Buyout Option Exercise Date all in accordance with Section 6.3.
(C)If the Class B Lenders do not elect to exercise the Class B Collateral Purchase Right prior to the Class B Collateral Exercise Deadline, then the Administrative Agent shall sell the Collateral as otherwise set forth in this Section 6.4 and pursuant to the other Transaction Documents. The Class B Lenders shall also have the right to bid for and purchase the Collateral offered for sale at a public auction conducted by the Administrative Agent pursuant to this Section 6.4 and the other Transaction Documents and, upon compliance with the terms of any such sale, may hold, retain and dispose of such property without further accountability therefor. Any Class B Lender purchasing Collateral at such a sale may set off the purchase price of such property against amounts owing to it in payment of such purchase price up to the full amount owing to it so long as the cash portion of such purchase price equals or exceeds either the (x) cash portion of the next highest bidder in such auction or (y) amount required to pay off the Class A Obligations in full.
(D)Unless otherwise stipulated at the time of sale, the Collateral or any portion thereof are to be sold on an “as is-where is” basis.
(E)The Administrative Agent shall incur no liability as a result of the sale (whether public or private) of the Collateral or any part thereof at any sale pursuant to this Agreement conducted in a commercially reasonable manner and at the written
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direction of the Majority Lenders. Each of the Borrower and the Secured Parties hereby agrees that in respect of any sale of any of the Collateral pursuant to the terms hereof, the Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of Applicable Laws, or in order to obtain any required approval of the sale or of the purchaser by any Governmental Authority, and the Borrower and the Secured Parties further agree that such compliance shall not, in and of itself, result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall the Administrative Agent be liable or accountable to the Borrower or the Secured Parties for any discount allowed by reason of the fact that the Collateral or any part thereof is sold in compliance with any such limitation or restriction.
Article VII
The Administrative Agent and Funding Agents
Section 7.1. Appointment; Nature of Relationship. The Administrative Agent is appointed by the Funding Agents and the Lenders (and by each Qualifying Hedge Counterparty by execution of a Qualifying Hedge Counterparty Joinder, if applicable) as the Administrative Agent hereunder and under each other Transaction Document, and each of the Funding Agents and the Lenders and each Qualifying Hedge Counterparty irrevocably authorizes the Administrative Agent to act as the contractual representative of such Funding Agent and such Lender and such Qualifying Hedge Counterparty with the rights and duties expressly set forth herein and in the other Transaction Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this Article VII. Notwithstanding the use of the defined term “Administrative Agent,” it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Funding Agent or Lender or any Qualifying Hedge Counterparty by reason of this Agreement and that the Administrative Agent is merely acting as the representative of the Funding Agents, the Lenders and each Qualifying Hedge Counterparty with only those duties as are expressly set forth in this Agreement and the other Transaction Documents. In its capacity as the Funding Agents’, the Lenders’ and each Qualifying Hedge Counterparty’s contractual representative, the Administrative Agent (A) does not have any implied duties and does not assume any fiduciary duties to any of the Funding Agents, the Lenders or any Qualifying Hedge Counterparty, (B) is a “representative” of the Funding Agents, the Lenders and each Qualifying Hedge Counterparty within the meaning of Section 9-102 of the UCC as in effect in the State of New York, and (C) is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Agreement and the other Transaction Documents. Each of the Funding Agents, the Lenders and each Qualifying Hedge Counterparty agree to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Funding Agent, each Lender and each Qualifying Hedge Counterparty waives.
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Section 7.2. Powers. Each Funding Agent, Lender and Qualifying Hedge Counterparty authorizes the Administrative Agent to take such action on such Funding Agent’s, Lender’s or Qualifying Hedge Counterparty’s behalf and to exercise such powers, rights and remedies hereunder and under the other Transaction Documents as are specifically delegated or granted to the Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. The Administrative Agent shall have only those duties and responsibilities that are expressly specified herein and in the other Transaction Documents. The Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. The Administrative Agent shall not have, by reason hereof or in any of the other Transaction Documents, a fiduciary relationship in respect of any Funding Agent, Lender or Qualifying Hedge Counterparty; and nothing herein or any of the other Transaction Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations in respect hereof or any of the other Transaction Documents except as expressly set forth herein or therein.
Section 7.3. Exculpatory Provisions. Neither the Administrative Agent nor any of its officers, partners, directors, employees or agents shall be liable to the Borrower, any Funding Agent, any Lender or any Qualifying Hedge Counterparty for any action taken or omitted by the Administrative Agent under or in connection with any of the Transaction Documents except to the extent such action or inaction is found in a final non-appealable judgment by a court of competent jurisdiction to have arisen solely from (A) the gross negligence or willful misconduct of such Person or (B) breach of contract by such Person with respect to the Transaction Documents. The Administrative Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Transaction Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until the Administrative Agent shall have received instructions in respect thereof from the Lenders as directed by the terms of this Agreement or other Transaction Document, or, in the absence of such direction, the Majority Lenders, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders and on all holders of Loan Notes. Without prejudice to the generality of the foregoing, (i) the Administrative Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Transaction Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action; (ii) the Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any Class A Loan Note, Class B Loan Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper, communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of counsel (who may be counsel for the Borrower), accountants, experts and other professional advisors selected by it with due care; and (iii) no Lender, Funding Agent or Qualifying Hedge Counterparty shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or (where so instructed) refraining from acting hereunder or any of the other Transaction Documents in accordance with the instructions of the applicable Lenders.
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Section 7.4. No Responsibility for Certain Matters. The Administrative Agent nor any of its directors, officers, agents or employees shall not be responsible to any Funding Agent, any Lender or any Qualifying Hedge Counterparty for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Agreement or any other Transaction Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by or on behalf of the Borrower, the Facility Administrator or Parent or their respective affiliates to the Administrative Agent, any Funding Agent, any Lender or any Qualifying Hedge Counterparty in connection with the Transaction Documents and the transactions contemplated thereby or for the financial condition or business affairs of the Borrower, the Facility Administrator or Parent or their respective affiliates to the Administrative Agent or any other Person liable for the payment of any Obligations, nor shall the Administrative Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Transaction Documents or as to the use of the proceeds of the Advances or as to the existence or possible existence of any Event of Default or Potential Event of Default or to make any disclosures with respect to the foregoing. Without limiting the generality of the foregoing, the Administrative Agent shall have no duty or obligation whatsoever to make, verify, or recompute any numerical information or other calculations under or in connection with this Agreement or any other Transaction Document, including any numerical information and other calculations included in any Borrowing Base Certificate, Facility Administrator Report or otherwise, and the Administrative Agent shall have no duty or liability to confirm, verify or review the contents, and shall not be responsible for the accuracy or content, of any documents, certificates or opinions delivered in connection with this Agreement or any other Transaction Document. In addition, the Administrative Agent shall have no duty or liability to determine whether any Solar Asset is an Eligible Solar Asset or to inspect the Solar Assets at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s, the Facility Administrator’s or the Parent’s or any of their respective affiliate’s representations, warranties or covenants. Anything contained herein to the contrary notwithstanding, the Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Advances or the component amounts thereof. The Administrative Agent shall not be responsible to any Funding Agent, any Lender or any Qualifying Hedge Counterparty for the perfection or priority of any of the Liens on any of the Collateral, or for the execution, effectiveness, genuineness, validity, legality, enforceability, collectability, or sufficiency of this Agreement or any of the other Transaction Documents or the transactions contemplated thereby, or for the financial condition of any guarantor of any or all of the Obligations, the Borrower or any of its respective Affiliates.
Section 7.5. Employment of Administrative Agents and Counsel. The Administrative Agent may execute any of its duties as the Administrative Agent hereunder and under any other Transaction Document by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Funding Agents, the Lenders or any Qualifying Hedge Counterparty, except as to money or securities received by it or its authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel concerning the contractual arrangement between the Administrative Agent and the Funding Agents, the Lenders or any Qualifying Hedge Counterparty and all matters pertaining to the Administrative Agent’s duties hereunder and under any other Transaction Document.
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Section 7.6. The Administrative Agent’s Reimbursement and Indemnification. Each Non-Conduit Lender, ratably, based on the Class A Lender Group Percentages, the Class B-I Lender Group Percentages and Class B-II Lender Group Percentages, as applicable, severally agrees to indemnify each of the Administrative Agent and its Affiliates and officers, partners, directors, trustees, employees and agents of the Administrative Agent (each, an “Indemnitee Agent Party”), to the extent that such Indemnitee Agent Party shall not have been reimbursed by the Borrower, (A) for any reasonable and documented expenses incurred by such Indemnitee Agent Party on behalf of the Lenders in connection with the preparation, execution, delivery, administrations and enforcement of the Transaction Documents and (B) for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Transaction Documents or otherwise in its capacity as such Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Transaction Documents, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY; provided, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent Party’s gross negligence or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided further, that in no event shall this sentence require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s pro rata share of the aggregate outstanding principal amount of Advances of all Lenders; and provided, further, this sentence shall not be deemed to require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
Section 7.7. Rights as a Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon the Administrative Agent in its individual capacity as a Lender hereunder. With respect to its Commitment and Advances made by it and the Loan Notes (if any) issued to it, the Administrative Agent shall have the same rights and powers hereunder and under any other Transaction Document as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity. The Administrative Agent may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Transaction Document, with the Borrower or any of its Affiliates in which such Person is not prohibited hereby from engaging with any other Person.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 7.8. Lender Credit Decision. Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of the Borrower in connection with Advances hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of the Borrower. The Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of a Lender or, except as otherwise required in this Agreement or any other Transaction Document, to provide such Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Advances or at any time or times thereafter, and the Administrative Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided by or on behalf of the Borrower, the Facility Administrator or the Parent to a Lender.
Section 7.9. Successor Administrative Agent. (A) The Administrative Agent may resign at any time by giving written notice thereof to the Lenders, the Funding Agents, each Qualifying Hedge Counterparty, the Verification Agent, the Paying Agent and the Borrower. If the Administrative Agent shall resign under this Agreement, then the Majority Lenders and the Borrower shall appoint a successor agent, whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent and references herein to the Administrative Agent shall mean such successor agent, effective upon its appointment; and such former Administrative Agent’s rights, powers and duties in such capacity shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement. After any retiring Administrative Agent’s resignation hereunder in such capacity, the provisions of this Article VII and Sections 2.17, 2.12, 10.5 and 10.6 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
(A)If the Administrative Agent ceases to be an Affiliate of any Lender hereunder, the Majority Lenders shall have the right to terminate the Administrative Agent upon ten (10) days’ notice to the Administrative Agent, the Lenders, the Funding Agents, each Qualifying Hedge Counterparty, the Verification Agent, the Paying Agent and the Borrower and replace the Administrative Agent with a successor of their choosing, whereupon such successor Administrative Agent shall succeed to the rights, powers and duties of the Administrative Agent and references herein to the Administrative Agent shall mean such successor agent, effective upon its appointment; and such former Administrative Agent’s rights, powers and duties in such capacity shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement. After any terminated Administrative Agent’s termination hereunder as such agent, the provisions of this Article VII and Sections 2.17, 2.12, 10.5 and 10.6 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
(B)If no successor Administrative Agent shall have been so appointed by the Majority Lenders and the Borrower and shall have accepted such appointment within thirty (30) days after the exiting Administrative Agent’s giving notice of resignation or receipt of notice of removal, then the exiting Administrative Agent may appoint, on
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behalf of the Borrower and the Lenders, a successor Administrative Agent (but only if such successor is reasonably acceptable to the Majority Lenders) or petition a court of competent jurisdiction to appoint a successor Administrative Agent.
(C)If (i) the Class A Commitments of the Lenders in the CS Lender Group have expired or terminated and all Obligations due and owing to the Class A Lenders in the CS Lender Group have been reduced to zero or (ii) any Class B Lender or Lenders elect to purchase and does purchase all Class A Advances funded by the Class A Lenders pursuant to Section 6.3 on the date on which circumstance described in either preceding clause (i) or (ii) occurs, Credit Suisse AG, New York Branch (or its successor or assign under this Agreement) shall assign, at the direction of the Majority Lenders, to the Person specified by the Majority Lenders, and such assignee shall assume (and shall be deemed to have assumed) all of Credit Suisse AG, New York Branch’s (or its successor or assign’s) rights, powers and duties as Administrative Agent under this Agreement and the other Transaction Documents, without further act or deed on the part of the Administrative Agent (or such other Person) or any of the other parties to this Agreement or any other Transaction Document; provided that the provisions of this Article VII and Sections 2.17, 2.12, 10.5 and 10.6 of this Agreement shall inure to its benefit of Credit Suisse AG, New York Branch (or its successor or assign) as to any actions taken or omitted to be taken by it while it was Administrative Agent.
Section 7.10. Transaction Documents; Further Assurances. (A) Each Non-Conduit Lender, each Funding Agent and each Qualifying Hedge Counterparty authorizes the Administrative Agent to enter into each of the Transaction Documents to which it is a party and each Lender, each Funding Agent and each Qualifying Hedge Counterparty authorizes the Administrative Agent to take all action contemplated by such documents in its capacity as Administrative Agent. Each Lender, each Funding Agent and each Qualifying Hedge Counterparty agrees that no Lender, no Funding Agent and no Qualifying Hedge Counterparty, respectively, shall have the right individually to seek to realize upon the security granted by any Transaction Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Lenders, the Funding Agents and each Qualifying Hedge Counterparty upon the terms of the Transaction Documents.
(A)Any Funding Agent may (in their sole discretion and expense), at any time, have their Advances rated by Moody’s, S&P, DBRS, Inc., A.M. Best or Kroll Bond Rating Agency, Inc. Any such rating shall not be a condition precedent to closing the credit facility or the making of the Advances as set forth in this Agreement. The Borrower, Sunnova Management, and the Parent shall provide reasonable assistance to obtain such rating. For the avoidance of doubt, any such rating shall not be a condition precedent to the exercise of any rights of the Borrower or Sunnova Management under this Agreement. Any costs or fees associated with the rating of the Advances shall be borne by the Funding Agent and the Lenders.
(B)Each Lender, by funding an Advance, shall be deemed to have acknowledged receipt of, and consented to and approved, each Transaction Document and each other document required to be approved by the Administrative Agent, any
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Funding Agent, any Lender or any Qualified Hedge Counterparty, as applicable, on the Original Closing Date or any Funding Date.
Section 7.11. Collateral Review. (A) Prior to the occurrence of an Event of Default, the Administrative Agent and/or its designated agent may not more than one (1) time during any given twelve (12) month period (at the expense of the Borrower), upon reasonable notice, perform (i) reviews of the Facility Administrator’s and/or Borrower’s business operations and (ii) audits of the Collateral, in all cases, the scope of which shall be determined by the Administrative Agent.
(A)After the occurrence of and during the continuance of an Event of Default, the Administrative Agent or its designated agent may, in its sole discretion regarding frequency (at the expense of the Borrower), upon reasonable notice, perform (i) reviews of the Facility Administrator’s and/or Borrower’s business operations and (ii) audits or any other review of the Collateral, in all cases, the scope of which shall be determined by the Administrative Agent.
(B)The results of any review conducted in accordance with this Section 7.11 shall be distributed by the Administrative Agent to the Lenders.
Section 7.12. Funding Agent Appointment; Nature of Relationship. Each Funding Agent is appointed by the Lenders in its Lender Group as their agent hereunder, and such Lenders irrevocably authorize such Funding Agent to act as the contractual representative of such Lenders with the rights and duties expressly set forth herein and in the other Transaction Documents. Each Funding Agent agrees to act as such contractual representative upon the express conditions contained in this Article VII. Notwithstanding the use of the defined term “Administrative Agent,” it is expressly understood and agreed that no Funding Agent shall have any fiduciary responsibilities to any Lender by reason of this Agreement and that each Funding Agent is merely acting as the representative of the Lenders in its Lender Group with only those duties as are expressly set forth in this Agreement and the other Transaction Documents. In its capacity as the related Lenders’ contractual representative, each Funding Agent (A) does not have any implied duties and does not assume any fiduciary duties to any of the Lenders, (B) is a “representative” of the Lenders in its Lender Group within the meaning of Section 9-102 of the UCC as in effect in the State of New York and (C) is acting as an independent contractor, the rights and duties of which are limited to those expressly set forth in this Agreement and the other Transaction Documents. Each of the Lenders agrees to assert no claim against their Funding Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender waives.
Section 7.13. Funding Agent Powers. Each Lender authorizes the Funding Agent in its Lender Group to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Transaction Documents as are specifically delegated or granted to the Funding Agents by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. The Funding Agents shall have only those duties and responsibilities that are expressly specified herein and in the other Transaction Documents. The Funding Agents may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. The Funding Agents shall not have, by reason hereof or in any of the other Transaction
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Documents, a fiduciary relationship in respect of any Lender; and nothing herein or any of the other Transaction Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Funding Agents any obligations in respect hereof or any of the other Transaction Documents except as expressly set forth herein or therein.
Section 7.14. Funding Agent Exculpatory Provisions. Neither any Funding Agent nor any of its officers, partners, directors, employees or agents shall be liable to the Borrower, the Lenders or any Lender for any action taken or omitted by such Funding Agent under or in connection with any of the Transaction Documents except to the extent such action or inaction is found in a final non-appealable judgment by a court of competent jurisdiction to have arisen solely from (A) the gross negligence or willful misconduct of such Person or (B) breach of contract by such Person with respect to the Transaction Documents. Each Funding Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Transaction Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Funding Agent shall have received instructions in respect thereof from each of the Lenders in its Lender Group as directed by the terms of this Agreement or other Transaction Document, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all such Lenders. Without prejudice to the generality of the foregoing, (i) each Funding Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Transaction Document unless it shall first be indemnified to its satisfaction by the Lenders in its Lender Group pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action; (ii) each Funding Agent shall be entitled to rely, and shall be fully protected in relying, upon any Loan Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper, communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of counsel (who may be counsel for the Borrower), accountants, experts and other professional advisors selected by it with due care; and (iii) no Lender shall have any right of action whatsoever against the Funding Agents as a result of such Funding Agent acting or (where so instructed) refraining from acting hereunder or any of the other Transaction Documents in accordance with the instructions of the applicable Lenders.
Section 7.15. No Funding Agent Responsibility for Certain Matters. Neither any Funding Agent nor any of its directors, officers, agents or employees shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of this Agreement or any other Transaction Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by or on behalf of the Borrower, the Facility Administrator or Parent or their respective affiliates to the Administrative Agent, any Funding Agent, any Lender or any Qualifying Hedge Counterparty in connection with the Transaction Documents and the transactions contemplated thereby or for the financial condition or business affairs of the Borrower, the Facility Administrator or Parent or their respective affiliates to such Funding Agent or any other Person liable for the payment of any Obligations, nor shall any Funding Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Transaction Documents or as to the use of the proceeds of the Advances or as to the existence or
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possible existence of any Event of Default or Potential Event of Default or to make any disclosures with respect to the foregoing. Without limiting the generality of the foregoing, the Funding Agents shall have no duty or obligation whatsoever to make, verify, or recompute any numerical information or other calculations under or in connection with this Agreement or any other Transaction Document, including any numerical information and other calculations included in any Borrowing Base Certificate, Facility Administrator Report or otherwise, and the Funding Agents shall have no duty or liability to confirm, verify or review the contents, and shall not be responsible for the accuracy or content, of any documents, certificates or opinions delivered in connection with this Agreement or any other Transaction Document. In addition, the Funding Agents shall have no duty or liability to determine whether any Solar Asset is an Eligible Solar Asset or to inspect the Solar Assets at any time or ascertain or inquire as to the performance or observance of any of the Borrower’s, the Facility Administrator’s or the Parent’s or any of their respective affiliate’s representations, warranties or covenants. Anything contained herein to the contrary notwithstanding, the Funding Agents shall not have any liability arising from confirmations of the amount of outstanding Advances or the component amounts thereof. The Funding Agents shall not be responsible to any Lender for the perfection or priority of any of the Liens on any of the Collateral, or for the execution, effectiveness, genuineness, validity, legality, enforceability, collectability, or sufficiency of this Agreement or any of the other Transaction Documents or the transactions contemplated thereby, or for the financial condition of any guarantor of any or all of the Obligations, the Borrower or any of its respective Affiliates.
Section 7.16. Funding Agent Employment of Agents and Counsel. Each Funding Agent may execute any of its duties as a Funding Agent hereunder by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders in its Lender Group, except as to money or securities received by it or its authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Each Funding Agent, at the expense of the Non-Conduit Lenders, shall be entitled to advice of counsel concerning the contractual arrangement between such Funding Agent and the Lenders in its Lender Group and all matters pertaining to such Funding Agent’s duties hereunder and under any other Transaction Document.
Section 7.17. Funding Agent’s Reimbursement and Indemnification. Each Non-Conduit Lender in each Lender Group, ratably, based on the applicable Class A Lender Group Percentages, the Class B-I Lender Group Percentages and Class B-II Lender Group Percentages, as applicable, severally agrees to indemnify each of the Funding Agent in their Lender Group and its Affiliates and officers, partners, directors, trustees, employees and agents of the Administrative Agent (each, an “Indemnitee Funding Agent Party”), to the extent that such Indemnitee Funding Agent Party shall not have been reimbursed by the Borrower, (A) for any reasonable and documented expenses incurred by such Indemnitee Funding Agent Party on behalf of the Lenders in connection with the preparation, execution, delivery, administrations and enforcement of the Transaction Documents and (B) for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Indemnitee Funding Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Transaction Documents or otherwise in its capacity as such Indemnitee Funding Agent Party in any way relating to or arising out of this Agreement or the other Transaction Documents, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE
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COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE FUNDING AGENT PARTY; provided, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Funding Agent Party’s gross negligence or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to any Indemnitee Funding Agent Party for any purpose shall, in the opinion of such Indemnitee Funding Agent Party, be insufficient or become impaired, such Indemnitee Funding Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided further, that in no event shall this sentence require any Lender to indemnify any Indemnitee Funding Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s pro rata share of the aggregate outstanding principal amount of Advances of all Lenders in the applicable Lender Group; and provided, further, this sentence shall not be deemed to require any Lender to indemnify any Indemnitee Funding Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
Section 7.18. Funding Agent Rights as a Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon any Funding Agent in its individual capacity as a Lender hereunder. With respect to its Commitment and Advances made by it and the Loan Notes (if any) issued to it, each Funding Agent shall have the same rights and powers hereunder and under any other Transaction Document as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include such Funding Agent in its individual capacity. Each Funding Agent may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Transaction Document, with the Borrower or any of their Affiliates in which such Person is not prohibited hereby from engaging with any other Person.
Section 7.19. Funding Agent Lender Credit Decision. Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of the Borrower in connection with Advances hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of the Borrower. No Funding Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of a Lender or, except as otherwise required in this Agreement or any other Transaction Document, to provide such Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Advances or at any time or times thereafter, and no Funding Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided by or on behalf of the Borrower, the Facility Administrator or the Parent to a Lender.
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Section 7.20. Funding Agent Successor Funding Agent. (A) Any Funding Agent may resign at any time by giving written notice thereof to the Lenders in its Lender Group, the Administrative Agent and the Borrower. If a Funding Agent shall resign under this Agreement, then the Lenders in the applicable Lender Group shall appoint a successor agent, whereupon such successor agent shall succeed to the rights, powers and duties of such Funding Agent and references herein to such Funding Agent shall mean such successor agent, effective upon its appointment; and such former Funding Agent’s rights, powers and duties in such capacity shall be terminated, without any other or further act or deed on the part of such former Funding Agent or any of the parties to this Agreement. After any retiring Administrative Agent’s resignation hereunder in such capacity, the provisions of this Article VII and Sections 2.17, 2.12, 10.5 and 10.6 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Funding Agent under this Agreement.
(A)If any Funding Agent ceases to be an Affiliate of any Lender in its Lender Group hereunder, the Lenders in such Lender Group shall have the right to terminate such Funding Agent upon ten (10) days’ notice to such Funding Agent, the Administrative Agent and the Borrower and replace such Funding Agent with a successor of their choosing, whereupon such successor Funding Agent shall succeed to the rights, powers and duties of such Funding Agent and references herein to such Funding Agent shall mean such successor agent, effective upon its appointment; and such former Funding Agent’s rights, powers and duties in such capacity shall be terminated, without any other or further act or deed on the part of such former Funding Agent or any of the parties to this Agreement. After any terminated Funding Agent’s termination hereunder as such agent, the provisions of this Article VII and Sections 2.17, 2.12, 10.5 and 10.6 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Funding Agent under this Agreement.
(B)If no successor Funding Agent shall have been so appointed by such Lenders and shall have accepted such appointment within thirty (30) days after the exiting Funding Agent’s giving notice of resignation or receipt of notice of removal, then the exiting Funding Agent may appoint, on behalf of such Lenders, a successor Funding Agent (but only if such successor is reasonably acceptable to each such Lender) or petition a court of competent jurisdiction to appoint a successor Funding Agent.
Section 7.21. Funding Agent Transaction Documents; Further Assurances. Each Lender authorizes the Funding Agent in its Lender Group to enter into each of the Transaction Documents to which it is a party and each Lender authorizes the Funding Agent in its Lender Group to take all action contemplated by such documents in its capacity as Funding Agent.
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Section 7.22. Lender Relationships.
(A)Subordination; Non-Petition Covenants. Anything in this Agreement or any other Transaction Documents to the contrary notwithstanding, the Borrower and each member of each Class B Lender Group agree for the benefit of members of the Class A Lender Groups that the Obligations owing to the Class B Lenders shall be subordinate and junior to the Obligations owing to the Class A Lenders to the extent set forth in Section 2.7, including during any case against the Borrower under the Bankruptcy Code and any other applicable federal or State bankruptcy, insolvency or other similar law. If, notwithstanding the provisions of this Agreement, any holder of an Obligation owing to a Class B Lender shall have become aware or received written notice (in either case prior to the time that all Obligations owing to the Class A Lenders have been paid in full) that it has received any payment or distribution in respect of any Obligation owing to a Class B Lender contrary to the provisions of this Agreement, then such payment or distribution shall be received and held in trust for the benefit of, and shall forthwith be paid over and delivered to, the Class A Lenders ratably based on the amount of the Obligations owing to the Class A Lenders which the Class A Lenders are entitled thereto in accordance with this Agreement; provided, however, that, if any such payment or distribution is made other than in cash, it shall be held by the Class A Lenders as part of the Collateral and subject in all respects to the provisions of this Agreement, including the provisions of this Section 7.22. The holders of the Obligations owing to the Class B Lenders agree, for the benefit of the holders of the Obligations owing to the Class A Lenders, that, before the date that is one year and one day after the termination of this Agreement or, if longer, the expiration of the then applicable preference period plus one day, the holders of the Obligations of the Class B Lenders shall not, without the prior written consent of the Majority Lenders, acquiesce, petition or otherwise invoke or cause any other Person to invoke the process of any governmental authority for the purpose of commencing or sustaining a case against the Borrower under the Bankruptcy Code and any other applicable federal or State bankruptcy, insolvency or other similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Borrower or any substantial part of its property or ordering the winding-up or liquidation of the affairs of the Borrower.
(B)Standard of Conduct. In exercising any of its or their voting rights, rights to direct and consent or any other rights as a Lender hereunder, subject to the terms and conditions of this Agreement, a Lender or Lenders, as the case may be, shall not, except as may be expressly provided herein with respect to any particular matter, have any obligation or duty to any Person or to consider or take into account the interests of any Person and shall not be liable to any Person for any action taken by it or them or at its or their direction or any failure by it or them to act or to direct that an action be taken, without regard to whether such action or inaction benefits or adversely effects any Lender, the Borrower or any other Person, except for any liability to which such Lender
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may be subject to the extent that the same results from such Lender’s taking or directing an action, or failing to take or direct an action, in bad faith or in violation of the express terms of this Agreement.
Article VIII
Administration and Servicing of the Collateral
Section 8.1. Management Agreements/Servicing Agreements/Facility Administration Agreement .
(A)Each Management Agreement, duly executed counterparts of which have been delivered to the Administrative Agent, sets forth the covenants and obligations of the Manager with respect to the Solar Assets and other matters addressed in the Management Agreements, and reference is hereby made to the Management Agreements for a detailed statement of said covenants and obligations of the Manager thereunder. The Borrower shall cause the Manager (to the extent an Affiliate of the Borrower) and each Relevant Party that is party to a Management Agreement to (i) perform and observe all of the material terms, covenants and conditions of each Management Agreement and (ii) promptly notify the Administrative Agent and each Lender of any notice to Borrower, a Managing Member or SAP of any material default under any Management Agreement.
(B)Each Servicing Agreement, duly executed counterparts of which have been delivered to the Administrative Agent, sets forth the covenants and obligations of the Manager with respect to the Solar Assets and other matters addressed in the Servicing Agreement, and reference is hereby made to the Servicing Agreements for a detailed statement of said covenants and obligations of the Manager thereunder. The Borrower shall cause the Manager (to the extent an Affiliate of the Borrower) and each Relevant Party that is party to a Servicing Agreement to (i) perform and observe all of the material terms, covenants and conditions of each Servicing Agreement and (ii) promptly notify the Administrative Agent and each Lender of any notice to Borrower, a Managing Member or SAP of any material default under any Servicing Agreement.
(C)The Facility Administration Agreement, duly executed counterparts of which have been delivered to the Administrative Agent, sets forth the covenants and obligations of the Facility Administrator with respect to the Collateral and other matters addressed in the Facility Administration Agreement, and reference is hereby made to the Facility Administration Agreement for a detailed statement of said covenants and obligations of the Facility Administrator thereunder. The Borrower agrees that the Administrative Agent, in its name or (to the extent required by law) in the name of the Borrower, may (but is not, unless so directed and indemnified by the Majority Lenders, required to) enforce all rights of the Borrower under the Facility Administration Agreement for and on behalf of the Lenders whether or not an Event of Default has occurred and is continuing.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(D)Promptly following a request from the Administrative Agent (acting at the direction of the Majority Lenders) to do so, the Borrower shall take all such lawful action as the Administrative Agent may request to compel or secure the performance and observance by the Facility Administrator of each of its obligations to the Borrower and with respect to the Collateral under or in connection with the Facility Administration Agreement in accordance with the terms thereof, and in effecting such request shall exercise any and all rights, remedies, powers and privileges lawfully available to the Borrower under or in connection with the Facility Administration Agreement to the extent and in the manner directed by the Administrative Agent, including the transmission of notices of default on the part of the Facility Administrator thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Facility Administrator of each of its obligations under the Facility Administration Agreement.
(E)The Borrower shall not waive any default by the Facility Administrator under the Facility Administration Agreement without the written consent of the Administrative Agent and the Majority Lenders, and, upon the occurrence and during the continuation of an Event of Default, the Majority Class B Lenders.
(F)The Administrative Agent does not assume any duty or obligation of the Borrower under the Facility Administration Agreement and the rights given to the Administrative Agent thereunder are subject to the provisions of Article VII.
(G)The Borrower has not and will not provide any payment instructions to any of the Managing Members, SAP or a Financing Fund that are inconsistent with the Facility Administration Agreement or this Agreement.
(H)With respect to the Facility Administrator’s obligations under Section 3.3 of the Facility Administration Agreement, the Administrative Agent shall not have any responsibility to the Borrower, the Facility Administrator or any party hereunder to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of an independent accountant by the Facility Administrator; provided that the Administrative Agent shall be authorized, upon receipt of written direction from Facility Administrator directing the Administrative Agent, to execute any acknowledgment or other agreement with the independent accountant required for the Administrative Agent to receive any of the reports or instructions provided for herein, which acknowledgment or agreement may include, among other things, (i) acknowledgement that the Facility Administrator has agreed that the procedures to be performed by the independent accountant are sufficient for the Borrower’s purposes, (ii) acknowledgment that the Administrative Agent has agreed that the procedures to be performed by an independent accountant are sufficient for the Administrative Agent’s purposes and that the Administrative Agent’s purposes is limited solely to receipt of the report, (iii) releases by the Administrative Agent (on behalf of itself and the Lenders) of claims against the independent accountant and acknowledgement of other limitations of liability in favor of the independent accountant, and (iv) restrictions or prohibitions on the
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disclosure of information or documents provided to it by such firm of independent accountants (including to the Lenders). Notwithstanding the foregoing, in no event shall the Administrative Agent be required to execute any agreement in respect of the independent accountant that the Administrative Agent determines adversely affects it in its individual capacity or which is in a form that is not reasonably acceptable to the Administrative Agent.
Section 8.2. Accounts.
(A)Establishment. The Borrower has established and shall maintain or cause to be maintained:
(i)for the benefit of the Secured Parties, in the name of the Borrower, at the Paying Agent, a segregated non-interest bearing trust account (such account, as more fully described on Schedule II attached hereto, the “Collection Account”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Borrower and the Secured Parties;
(ii)for the benefit of the Secured Parties, in the name of the Borrower, at the Paying Agent, a segregated non-interest bearing trust account (such account, as more fully described on Schedule II attached hereto, being the “Supplemental Reserve Account”), bearing a designation clearly indicating that the funds deposited therein as described below are held for the benefit of the Borrower and the Secured Parties;
(iii)for the benefit of the Secured Parties, in the name of the Borrower, at the Paying Agent, a segregated non-interest bearing trust account (such account, as more fully described on Schedule II attached hereto, being the “Liquidity Reserve Account”), bearing a designation clearly indicating that the funds deposited therein as described below are held for the benefit of the Borrower and the Secured Parties;
(iv)for the benefit of the Secured Parties, in the name of the Borrower, at the Paying Agent, a segregated non-interest bearing trust account (such account, as more fully described on Schedule II attached hereto, being the “SAP Revenue Account”), bearing a designation clearly indicating that the funds deposited therein as described below are held for the benefit of the Borrower and the Secured Parties; and
(v)for the benefit of the Secured Parties, in the name of the Borrower, at the Paying Agent, a segregated non-interest bearing trust account (such account, as more fully described on Schedule II attached hereto, being the “Takeout Transaction Account”, and together with the Collection Account, the Supplemental Reserve Account, the Liquidity Reserve Account, the SAP Revenue Account and the Takeout Transaction Account, each a “Paying Agent Account” and collectively the “Paying Agent Accounts”), bearing a designation clearly indicating that the funds deposited therein as described below are held for the benefit of the Borrower and the Secured Parties.
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(B)[Reserved].
(C)Deposits and Withdrawals from the Liquidity Reserve Account. Deposits into, and withdrawals from, the Liquidity Reserve Account shall, subject to Section 2.7(D), be made in the following manner:
(i)On the Original Closing Date, the Borrower shall deliver to the Paying Agent for deposit into the Liquidity Reserve Account, an amount equal to the Liquidity Reserve Account Required Balance as of such date;
(ii)From the proceeds of Advances hereunder, the Borrower shall deliver to the Paying Agent for deposit into the Liquidity Reserve Account amounts necessary to maintain on deposit therein an amount equal to or in excess of the Liquidity Reserve Account Required Balance as of the date of each such Advance, and on each Payment Date, the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report, to deposit into the Liquidity Reserve Account from available Collections (as set forth and in the order of priority established pursuant to Section 2.7(B)), funds in the amount required under Section 2.7(B), and the Borrower may, at its option, deposit additional funds into the Liquidity Reserve Account;
(iii)If on any Payment Date (without giving effect to any withdrawal from the Liquidity Reserve Account) available funds on deposit in the Collection Account would be insufficient to make the payments due and payable on such Payment Date pursuant to Section 2.7(B)(i) through (iii)(a), (vii) and (ix), the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report delivered pursuant to Section 3.1 of the Facility Administration Agreement, to withdraw from the Liquidity Reserve Account an amount equal to the lesser of such insufficiency and the amount on deposit in the Liquidity Reserve Account and deposit such amount into the Collection Account and apply such amount to payments set forth in Section 2.7(B)(i) through (iii)(a), (vii) and (ix);
(iv)Upon the occurrence of an Event of Default, the Administrative Agent (or the Facility Administrator with the written consent of the Administrative Agent) shall cause the Paying Agent, by providing written direction to the Paying Agent, to withdraw all amounts on deposit in the Liquidity Reserve Account and deposit such amounts into the Collection Account for distribution in accordance with Section 2.7(B);
(v)On the earliest to occur of (a) the Maturity Date, (b) an Amortization Event (other than an Event of Default) and (c) the date on which the outstanding balance of the Advances is reduced to zero, the Administrative Agent shall cause the Paying Agent, by providing written direction to the Paying Agent, in the case of subclauses (a) and (b), and the Facility Administrator or the Borrower shall cause the Paying Agent, by providing written direction to the Paying Agent, in the case of subclause (c), to withdraw all amounts on deposit in the Liquidity Reserve Account and
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deposit such amounts into the Collection Account to be paid in accordance with Section 2.7(B);
(vi)Unless an Event of Default or an Amortization Event has occurred and is continuing, on any Payment Date, if, as set forth on the Facility Administrator Report, amounts on deposit in the Liquidity Reserve Account are greater than the Liquidity Reserve Account Required Balance (after giving effect to all other distributions and disbursements on such Payment Date), the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report, to withdraw funds in excess of the Liquidity Reserve Account Required Balance from the Liquidity Reserve Account and disburse such amounts into the Borrower’s Account; and
(vii)On any Payment Date, if, as set forth on the Facility Administrator Report, the amount of funds in the Liquidity Reserve Account and in the Collection Account is equal to or greater than the aggregate outstanding balance of Advances (whether or not then due and payable) and all other amounts due and payable hereunder, then the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report, to withdraw all funds from the Liquidity Reserve Account and deposit such amounts into the Collection Account to pay all such amounts and the aggregate outstanding balance of all Advances (whether or not then due and payable).
Notwithstanding anything in this Section 8.2(C) to the contrary, in lieu of or in substitution for moneys otherwise required to be deposited to the Liquidity Reserve Account, the Borrower (or the Facility Administrator on behalf of the Borrower) may deliver or cause to be delivered to the Paying Agent a Letter of Credit; provided that any deposit into the Liquidity Reserve Account required to be made by the Borrower (or the Facility Administrator on behalf of the Borrower) after the replacement of amounts on deposit in the Liquidity Reserve Account with a Letter of Credit shall be made by the Borrower (or the Facility Administrator on behalf of the Borrower) by way of cash deposits to the Liquidity Reserve Account as provided in Section 2.7(B) or pursuant to the Borrower’s (or the Facility Administrator’s on behalf of the Borrower) causing an increase in the Letter of Credit or the delivery to the Paying Agent of an additional Letter of Credit.
If at any time a Letter of Credit is held by the Paying Agent as an asset of the Liquidity Reserve Account, and if any withdrawals from the Liquidity Reserve Account will be required under this Section 8.2(C) or otherwise, the Administrative Agent (or the Borrower with the written consent of the Administrative Agent) shall, no later than three (3) Business Days prior to the applicable Payment Date or payment date, direct the Paying Agent in writing to draw on the Letter of Credit, which direction shall provide the required draw amount. The Administrative Agent (or the Borrower with the written consent of the Administrative Agent) shall direct the Paying Agent to submit the drawing documents to the applicable Eligible Letter of Credit Bank no later than 5:00 P.M. (New York City time) on the second (2nd) Business Day after the Paying Agent receives such direction. Upon the receipt of the proceeds of any such drawing, the Paying Agent shall deposit such proceeds into the Liquidity Reserve Account. Any (A) references in the Transaction Documents to amounts on deposit in the Liquidity Reserve Account or amounts in or
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credited to the Liquidity Reserve Account shall include or be deemed to include the aggregate available amount of the Letters of Credit delivered to the Paying Agent pursuant to this Section 8.2(C), and (B) Letter of Credit delivered by the Borrower (or the Facility Administrator on behalf of the Borrower) to the Paying Agent pursuant to this Section 8.2(C) shall be held as an asset of the Liquidity Reserve Account and valued for purposes of determining the amount on deposit in the Liquidity Reserve Account at the amount as of any date then available to be drawn on such Letter of Credit.
If at any time a Letter of Credit is held by the Paying Agent as an asset of the Liquidity Reserve Account, then: (i) if the Letter of Credit is scheduled to expire by its terms and ten (10) days prior to the scheduled expiration date such Letter of Credit has not been extended or replaced, then the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent shall on such tenth (10th) day prior to the scheduled expiration date notify the Paying Agent in writing of such failure to extend or replace the Letter of Credit, and the Paying Agent shall, submit the drawing documents delivered to it by the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent to the Eligible Letter of Credit Bank no later than 5:00 P.M. (New York City time) on the second (2nd) Business Day prior to the scheduled expiration date and draw the full amount of such Letter of Credit and deposit the proceeds of such drawing into the Liquidity Reserve Account, and (ii) if the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent notifies the Paying Agent in writing that the financial institution issuing the Letter of Credit ceases to be an Eligible Letter of Credit Bank or a Responsible Officer of the Paying Agent otherwise receives written notice that the financial institution issuing the Letter of Credit ceases to be an Eligible Letter of Credit Bank, then the Paying Agent shall, no later than the second (2nd) Business Day after receipt of any such written notice by a Responsible Officer of the Paying Agent submit the drawing documents delivered to it by the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent to draw the full amount of such Letter of Credit and deposit the proceeds of such drawing into the Liquidity Reserve Account.
If at any time a Letter of Credit is held by the Paying Agent as an asset of the Liquidity Reserve Account, the stated amount of the Letter of Credit may be reduced from time to time, to the extent of any reduction in the dollar amount of the Liquidity Reserve Account Required Balance. Each month upon receipt by the Paying Agent of the Facility Administrator Report if such Facility Administrator Report shows a reduction in the Liquidity Reserve Account Required Balance, then the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent shall, prior to the related Payment Date, direct the Paying Agent to send the Eligible Letter of Credit Bank a letter in the form provided in the Letter of Credit to reduce the stated amount of the Letter of Credit. The Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent shall ensure that the letter submitted shall provide for the reduction to be effective as of the close of business on the related Payment Date. The reduction shall be in the amount shown on the Facility Administrator Report as the Liquidity Reserve Account “reductions” and the remaining stated amount of the Letter of Credit shall be equal to the Liquidity Reserve Account Required Balance “ending required amount” as shown on the Facility Administrator Report. Any drawing on the Letter of Credit may be reimbursed by the
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Borrower only from amounts remitted to the Borrower pursuant to clauses (xiii) or (xiv) of Section 2.7(B).
Notwithstanding the foregoing or any other provision to the contrary in this Agreement or any other Transaction Document, in no event shall the Paying Agent be required to report, track, calculate or monitor the value, available amount or any other information regarding any Letter of Credit for any party hereto or beneficiary of or under the Liquidity Reserve Account, except as expressly required pursuant to this Section 8.2(C).
(D)Deposits and Withdrawals from the Supplemental Reserve Account. Deposits into, and withdrawals from, the Supplemental Reserve Account shall, subject to Section 2.7(D), be made in the following manner:
(i)On each Payment Date, to the extent of Distributable Collections and in accordance with and subject to the priority of payments set forth in Section 2.7(B), the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report, to deposit into the Supplemental Reserve Account an amount equal to the Supplemental Reserve Account Deposit until the amount on deposit equals the Supplemental Reserve Account Required Balance.
(ii)On each Payment Date, the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report, to deposit into the Supplemental Reserve Account from available Collections (as set forth and in the order of priority established pursuant to Section 2.7(B)), funds in the amount required under Section 2.7(B), if any, and the Borrower may, at its option, deposit additional funds into the Supplemental Reserve Account;
(iii)The Paying Agent shall release funds from the Supplemental Reserve Account to pay the following amounts upon direction from the Facility Administrator set forth in an Officer’s Certificate (no more than once per calendar month) in the following order of priority:
(a)the costs (inclusive of labor costs) of replacement of any Inverter that no longer has the benefit of a Manufacturer Warranty and for which (1) the Manager is not obligated under the related Management Agreement to cover the replacement costs of such Inverter (or if so obligated, has failed to pay such costs) and the related Financing Fund has insufficient funds to pay replacement costs for such Inverter or (2) the Facility Administrator in its role as Manager has paid under the related Management Agreement;
(b)the amount of any deductible in connection with each claim paid by the Tax Loss Insurer under the related Tax Loss Insurance Policy plus the amount of the difference, if any, between (1) the amount of a Tax Loss Indemnity and (2) the sum of the amount of proceeds of a Tax Loss Insurance Policy received by a Financing Fund, as loss payee under such Tax Loss Insurance Policy with respect to the Tax Loss Indemnity and the amount of any deductible in connection therewith; and
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(c)each Purchase Option Price and the TEP V-E Withdrawal Amount when due and payable under the terms of a Financing Fund LLCA upon exercise by the related Managing Member of the related Purchase Option or exercise by the related Tax Equity Investor Member of the TEP V-E Withdrawal Right, as applicable.
(iv)Unless an Event of Default or an Amortization Event has occurred and is continuing, on any Payment Date, if, as set forth on the Facility Administrator Report, amounts on deposit in the Supplemental Reserve Account are greater than the Supplemental Reserve Account Required Balance (after giving effect to all other distributions and disbursements and all releases and withdrawals on such Payment Date), the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report, to withdraw funds in excess of the Supplemental Reserve Account Required Balance from the Supplemental Reserve Account and disburse such amounts into the Borrower’s Account;
(v)If on any Payment Date (after giving effect to any withdrawals from the Liquidity Reserve Account) available funds on deposit in the Collection Account would be insufficient to pay the interest payments or other amounts due and payable pursuant to Section 2.7(B)(i) through (iii)(a), (vii) and (ix) on such Payment Date, the Facility Administrator shall direct the Paying Agent, based on the Facility Administrator Report, to withdraw from the Supplemental Reserve Account an amount equal to the lesser of such insufficiency and the amount on deposit in the Supplemental Reserve Account and deposit such amount into the Collection Account and apply such amount to payments set forth in Section 2.7(B)(i) through (iii)(a), (vii) and (ix); and
(vi)If on any Payment Date, the Borrower has provided notice to the Administrative Agent that (x)(1) a Managing Member has irrevocably provided notice to the related Tax Equity Investor that it will not exercise the related Purchase Option or (2) the period in which such Purchase Option may be exercised under the related Financing Fund LLCA has expired and cannot be extended and (y) with respect to TEP V-E only (1) the Tax Equity Investor Member for TEP V-E has irrevocably provided notice to the related Managing Member that it will not exercise the TEP V-E Withdrawal Right or (2) the period in which TEP V-E Withdrawal Right may be exercised under the related Financing Fund LLCA has expired and cannot be extended, the Borrower may direct the Paying Agent, to withdraw from the Supplemental Reserve Account any related amounts on deposit therein in respect of clause (X)(ii)(a) of the definition of “Supplemental Reserve Account Required Balance” or, with respect to TEP V-E only, clause (Y) of the definition of “Supplemental Reserve Account Required Balance” and deposit such amounts into the Collection Account for application in accordance with Section 2.7; and
(vii)On the date on which the Aggregate Outstanding Advances are reduced to zero, the Administrative Agent shall cause the Paying Agent, pursuant to a written direction, to withdraw all amounts on deposit in the Supplemental Reserve Account and deposit such amounts into the Collection Account to be paid in accordance with Section 2.7(B).
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Notwithstanding anything in this Section 8.2(D) to the contrary, in lieu of or in substitution for moneys otherwise required to be deposited to the Supplemental Reserve Account, the Borrower (or the Facility Administrator on behalf of the Borrower) may deliver or cause to be delivered to the Paying Agent a Letter of Credit; provided that any deposit into the Supplemental Reserve Account required to be made by the Borrower (or the Facility Administrator on behalf of the Borrower) after the replacement of amounts on deposit in the Supplemental Reserve Account with a Letter of Credit shall be made by the Borrower (or the Facility Administrator on behalf of the Borrower) by way of cash deposits to the Supplemental Reserve Account as provided in Section 2.7(B) or pursuant to the Borrower’s (or the Facility Administrator’s on behalf of the Borrower) causing an increase in the Letter of Credit or the delivery to the Paying Agent of an additional Letter of Credit.
If at any time a Letter of Credit is held by the Paying Agent as an asset of the Supplemental Reserve Account, and if any withdrawals from the Supplemental Reserve Account will be required under this Section 8.2(D) or otherwise, the Administrative Agent (or the Borrower with the written consent of the Administrative Agent) shall, no later than three (3) Business Days prior to the applicable Payment Date or payment date, direct the Paying Agent in writing to draw on the Letter of Credit, which direction shall provide the required draw amount. The Administrative Agent (or the Borrower with the written consent of the Administrative Agent) shall direct the Paying Agent to submit the drawing documents to the applicable Eligible Letter of Credit Bank no later than 5:00 P.M. (New York City time) on the second (2nd) Business Day after the Paying Agent receives such direction. Upon the receipt of the proceeds of any such drawing, the Paying Agent shall deposit such proceeds into the Supplemental Reserve Account. Any (A) references in the Transaction Documents to amounts on deposit in the Supplemental Reserve Account or amounts in or credited to the Supplemental Reserve Account shall include or be deemed to include the aggregate available amount of the Letters of Credit delivered to the Paying Agent pursuant to this Section 8.2(D), and (B) Letter of Credit delivered by the Borrower (or the Facility Administrator on behalf of the Borrower) to the Paying Agent pursuant to this Section 8.2(D) shall be held as an asset of the Supplemental Reserve Account and valued for purposes of determining the amount on deposit in the Supplemental Reserve Account at the amount as of any date then available to be drawn on such Letter of Credit.
If at any time a Letter of Credit is held by the Paying Agent as an asset of the Supplemental Reserve Account, then: (i) if the Letter of Credit is scheduled to expire by its terms and ten (10) days prior to the scheduled expiration date such Letter of Credit has not been extended or replaced, then the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent shall on such tenth (10th) day prior to the scheduled expiration date notify the Paying Agent in writing of such failure to extend or replace the Letter of Credit, and the Paying Agent shall, submit the drawing documents delivered to it by the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent to the Eligible Letter of Credit Bank no later than 5:00 P.M. (New York City time) on the second (2nd) Business Day prior to the scheduled expiration date and draw the full amount of such Letter of Credit and deposit the proceeds of such drawing into the Supplemental Reserve Account, and (ii) if the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent notifies the Paying Agent in writing that the financial institution issuing
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the Letter of Credit ceases to be an Eligible Letter of Credit Bank or a Responsible Officer of the Paying Agent otherwise receives written notice that the financial institution issuing the Letter of Credit ceases to be an Eligible Letter of Credit Bank, then the Paying Agent shall, no later than the second (2nd) Business Day after receipt of any such written notice by a Responsible Officer of the Paying Agent submit the drawing documents delivered to it by the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent to draw the full amount of such Letter of Credit and deposit the proceeds of such drawing into the Supplemental Reserve Account.
If at any time a Letter of Credit is held by the Paying Agent as an asset of the Supplemental Reserve Account, the stated amount of the Letter of Credit may be reduced from time to time, to the extent of any reduction in the dollar amount of the Supplemental Reserve Account Required Balance. Each month upon receipt by the Paying Agent of the Facility Administrator Report if such Facility Administrator Report shows a reduction in the Supplemental Reserve Account Required Balance, then the Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent shall, prior to the related Payment Date, direct the Paying Agent to send the Eligible Letter of Credit Bank a letter in the form provided in the Letter of Credit to reduce the stated amount of the Letter of Credit. The Borrower (or the Facility Administrator on behalf of the Borrower) or the Administrative Agent shall ensure that the letter submitted shall provide for the reduction to be effective as of the close of business on the related Payment Date. The reduction shall be in the amount shown on the Facility Administrator Report as the Supplemental Reserve Account “reductions” and the remaining stated amount of the Letter of Credit shall be equal to the Supplemental Reserve Account Required Balance “ending required amount” as shown on the Facility Administrator Report. Any drawing on the Letter of Credit may be reimbursed by the Borrower only from amounts remitted to the Borrower pursuant to clauses (xiii) or (xiv) of Section 2.7(B).
Notwithstanding the foregoing or any other provision to the contrary in this Agreement or any other Transaction Document, in no event shall the Paying Agent be required to report, track, calculate or monitor the value, available amount or any other information regarding any Letter of Credit for any party hereto or beneficiary of or under the Supplemental Reserve Account, except as expressly required pursuant to this Section 8.2(D).
(E)Deposits and Withdrawals from the SAP Revenue Account. Deposits into the SAP Revenue Account shall be made consistent with Section 5.1(R). The Paying Agent shall withdraw all amounts on deposit in the SAP Revenue Account in excess of $55,000 on the first Business Day of each calendar month and remit such amounts to the Collection Account. The Manager shall be permitted to withdraw up to $55,000 in the aggregate during each calendar month from the SAP Revenue Account to pay Operational Amounts in accordance with the related SAP Financing Documents. On the date on which the Aggregate Outstanding Advances are reduced to zero, the Administrative Agent shall cause the Paying Agent, pursuant to a written direction, to withdraw all amounts on deposit in the SAP Revenue and deposit such amounts into the Collection Account to be paid in accordance with Section 2.7(B).
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(F)Paying Agent Account Control. (i) Each Paying Agent Account shall be established and at all times maintained with the Paying Agent which shall act as a “securities intermediary” (as defined in Section 8-102 of the UCC) and a “bank” (as defined in Section 9-102 of the UCC) hereunder (in such capacities, the “Securities Intermediary”) with respect to each Paying Agent Account. The Paying Agent hereby confirms that, as of the Amendment and Restatement Date, the account numbers of each of the Paying Agent Accounts are as described on Schedule II attached hereto.
(ii)Each Paying Agent Account shall be a “securities account” as defined in Section 8-501 of the UCC and shall be maintained by the Paying Agent as a securities intermediary for and in the name of the Borrower, subject to the lien of the Administrative Agent, for the benefit of the Secured Parties. The Paying Agent shall treat the Administrative Agent as the “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) in respect of all “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) credited to the Paying Agent Accounts.
(iii)The Paying Agent hereby confirms and agrees that:
(a)the Paying Agent shall not change the name or account number of any Paying Agent Account without the prior written consent of the Administrative Agent and the Borrower;
(b)all securities or other property underlying any financial assets (as hereinafter defined) credited to a Paying Agent Account shall be registered in the name of the Paying Agent, indorsed to the Paying Agent or indorsed in blank or credited to another securities account maintained in the name of the Paying Agent, and in no case will any financial asset credited to a Paying Agent Account be registered in the name of the Borrower or any other Person, payable to the Borrower or specially indorsed to the Borrower or any other Person, except to the extent the foregoing have been specially indorsed to the Administrative Agent, for the benefit of the Secured Parties, or in blank;
(c)all property transferred or delivered to the Paying Agent pursuant to this Agreement will be credited to the appropriate Borrower Account in accordance with the terms of this Agreement;
(d)each Paying Agent Account is an account to which financial assets are or may be credited, and the Paying Agent shall, subject to the terms of this Agreement, treat each of the Borrower and the Facility Administrator as entitled to exercise the rights that comprise any financial asset credited to each such Paying Agent Account; and
(e)notwithstanding the intent of the parties hereto, to the extent that any Paying Agent Account shall be determined to constitute a “deposit account” within the meaning of Section 9-102(a)(29) of the UCC, such Paying Agent Account shall be subject to the exclusive control of the Administrative Agent, for the benefit of the
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Secured Parties, and the Paying Agent will comply with instructions originated by the Administrative Agent directing disposition of the funds in such Paying Agent Account, without further consent by the Borrower or the Facility Administrator; provided that, notwithstanding the foregoing, the Administrative Agent hereby authorizes the Paying Agent to honor withdrawal, payment, transfer or other instructions directing disposition of the funds in the Collection Account received from the Borrower or the Facility Administrator, on its behalf, pursuant to Section 2.7 or this Section 8.2.
(iv)The Paying Agent hereby agrees that each item of property (including, without limitation, any investment property, financial asset, security, instrument or cash) credited to any Paying Agent Account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.
(v)If at any time the Paying Agent shall receive an “entitlement order” (as defined in Section 8-102(a)(8) of the UCC) (an “Entitlement Order”) from the Administrative Agent (i.e., an order directing a transfer or redemption of any financial asset in any Paying Agent Account), or any “instruction” (within the meaning of Section 9-104 of the UCC), originated by the Administrative Agent, the Paying Agent shall comply with such Entitlement Order or instruction without further consent by the Borrower, the Facility Administrator or any other Person. Neither the Facility Administrator nor the Borrower shall make any withdrawals from any Paying Agent Account, except pursuant to Section 2.7 or this Section 8.2.
(vi)In the event that the Paying Agent has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any Paying Agent Account or any financial assets, funds, cash or other property credited thereto or any security entitlement with respect thereto, the Paying Agent hereby agrees that such security interest shall be subordinate to the security interest of the Administrative Agent, for the benefit of the Secured Parties. Notwithstanding the preceding sentence, the financial assets, funds, cash or other property credited to any Paying Agent Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Administrative Agent, for the benefit of the Secured Parties (except that the Paying Agent may set-off (i) all amounts due to the Paying Agent in its capacity as securities intermediary in respect of customary fees and expenses for the routine maintenance and operation of the Paying Agent Accounts, and (ii) the face amount of any checks that have been credited to the Paying Agent Accounts but are subsequently returned unpaid because of uncollected or insufficient funds).
(vii)Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC).
(viii)If, at any time, the Paying Agent resigns, is removed hereunder or ceases to meet the eligibility requirements of an Eligible Institution, the Facility Administrator, for the benefit of the Administrative Agent and the Lenders, shall within thirty (30) days establish a new Collection Account, Supplemental Reserve Account, Liquidity Reserve Account, the SAP Revenue Account, and Takeout Transaction Account meeting the conditions specified above with an Eligible Institution
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reasonably acceptable to the Administrative Agent and transfer any cash and/or any investments held therein or with respect thereto to such new Collection Account, Supplemental Reserve Account, Liquidity Reserve Account, SAP Revenue Account, or Takeout Transaction Account, as applicable. From the date such new Collection Account, Supplemental Reserve Account, Liquidity Reserve Account, SAP Revenue Account, or Takeout Transaction Account is established, it shall be the “Collection Account,” “Supplemental Reserve Account,” “Liquidity Reserve Account,” “SAP Revenue Account,” or “Takeout Transaction Account” hereunder, as applicable.
(G)Permitted Investments. Prior to an Event of Default, the Facility Administrator (and after an Event of Default, the Administrative Agent) may direct each banking institution at which the Collection Account, the Liquidity Reserve Account, Supplemental Reserve Account, SAP Revenue Account, or Takeout Transaction Account shall be established, in writing, to invest the funds held in such accounts in one or more Permitted Investments. Absent such written direction, such funds shall remain uninvested. All investments of funds on deposit in the Collection Account, the Liquidity Reserve Account, Supplemental Reserve Account, SAP Revenue Account, or Takeout Transaction Account shall be uninvested so that such funds will be available on the Business Day immediately preceding the date on which the funds are to be disbursed from such account, unless otherwise expressly set forth herein. All interest derived from such Permitted Investments shall be deemed to be “investment proceeds” and shall be deposited into such account to be distributed in accordance with the requirements hereof. The taxpayer identification number associated with the Collection Account, the Liquidity Reserve Account, Supplemental Reserve Account, SAP Revenue Account, and Takeout Transaction Account shall be that of the Borrower, and the Borrower shall report for federal, state and local income tax purposes the income, if any, earned on funds in such accounts.
Section 8.3. Adjustments. If the Facility Administrator makes a mistake with respect to the amount of any Collection or payment and deposits, pays or causes to be deposited or paid, an amount that is less than or more than the actual amount thereof, the Facility Administrator shall appropriately adjust the amounts subsequently deposited into the applicable account or paid out to reflect such mistake for the date of such adjustment. Any Eligible Solar Asset in respect of which a dishonored check is received shall be deemed not to have been paid.
Article IX
The Paying Agent
Section 9.1. Appointment. The appointment of Wells Fargo Bank, National Association is hereby confirmed by the other parties hereto (other than the Verification Agent) as Paying Agent, and accepts such appointment subject to the terms of this Agreement.
Section 9.2. Representations and Warranties. The Paying Agent represents to the other parties hereto as follows:
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(A)Organization; Corporate Powers. The Paying Agent is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite power and authority to conduct its business, to own its property and to execute, deliver and perform all of its obligations under this Agreement, and no license, permit, consent or approval, is required to be obtained, effective or given by the Paying Agent to enable it to perform its obligations hereunder.
(B)Authority. The execution, delivery and performance by the Paying Agent of this Agreement have been duly authorized by all necessary action on the part of the Paying Agent.
(C)Enforcement. This Agreement constitutes the legal, valid and binding obligation of the Paying Agent, enforceable against the Paying Agent in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity, regardless of whether such enforcement is sought at equity or at law.
(D)No Conflict. The Paying Agent is not in violation of any law, rule, or regulation governing the banking or trust powers of the Paying Agent applicable to it or any indenture, lease, loan or other agreement to which the Paying Agent is a party or by which it or its assets may be bound or affected, except for such laws, rules or regulations or indentures, leases, loans or other agreements the violation of which would not have a material adverse effect on the Paying Agent’s abilities to perform its obligations in accordance with the terms of this Agreement.
Section 9.3. Limitation of Liability of the Paying Agent. Notwithstanding anything contained herein to the contrary, this Agreement has been executed by Wells Fargo Bank, National Association, not in its individual capacity, but solely as the Paying Agent, and in no event shall Wells Fargo Bank, National Association have any liability for the representations, warranties, covenants, agreements or other obligations of the other parties hereto or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the party responsible therefor.
Section 9.4. Certain Matters Affecting the Paying Agent. Notwithstanding anything herein to the contrary:
(A)The Paying Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. The Paying Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement.
(B)The Paying Agent shall not be subject to any fiduciary or other implied duties, obligations or covenants regardless of whether an Event of Default has occurred and is continuing.
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(C)The Paying Agent shall not be liable for any action taken or any error of judgment made in good faith by an officer or officers of the Paying Agent, unless it shall be conclusively determined by the final judgment of a court of competent jurisdiction not subject to appeal or review that the Paying Agent was grossly negligent or acted with willful misconduct in ascertaining the pertinent facts.
(D)The Paying Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction given or certificate or other document delivered to the Paying Agent under this Agreement or any other Transaction Document.
(E)None of the provisions of this Agreement or any other Transaction Document shall require the Paying Agent to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
(F)The Paying Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and shall be under no obligation to inquire as to the adequacy, content, accuracy or sufficiency of any such information or be under any obligation to make any calculation (or re-calculation), certification, or verification in respect of any such information and shall not be liable for any loss that may be occasioned thereby. The Paying Agent may also, but shall not be required to, rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon.
(G)Whenever in the administration of the provisions of this Agreement or any other Transaction Document the Paying Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter may, in the absence of gross negligence, willful misconduct or bad faith on the part of the Paying Agent, be deemed to be conclusively proved and established by a certificate delivered to the Paying Agent hereunder, and such certificate, in the absence of gross negligence, willful misconduct or bad faith on the part of the Paying Agent, shall be full warrant to the Paying Agent for any action taken, suffered or omitted by it under the provisions of this Agreement or any other Transaction Document.
(H)The Paying Agent, at the expense of the Borrower, may consult with counsel, and the advice or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel; provided however that such costs of counsel are reasonable and documented. Before the Paying Agent acts or refrains from
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acting hereunder, it may require and shall be entitled to receive an Officer’s Certificate and/or an opinion of counsel, the costs of which (including the Paying Agent’s reasonable and documented attorney’s fees and expenses) shall be paid by the party requesting that the Paying Agent act or refrain from acting. The Paying Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or opinion of counsel.
(I)The Paying Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, entitlement order, approval or other paper or document.
(J)Except as provided expressly in Section 8.2(G) hereof, the Paying Agent shall have no obligation to invest and reinvest any cash held in any of the accounts hereunder in the absence of a timely and specific written investment direction pursuant to the terms of this Agreement. In no event shall the Paying Agent be liable for the selection of investments or for investment losses incurred thereon. The Paying Agent shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of another party to timely provide a written investment direction pursuant to the terms of this Agreement. Investments in any Permitted Investments are not obligations or recommendations of, or endorsed or guaranteed by, the Paying Agent or its Affiliates. The Paying Agent and its Affiliates may provide various services for Permitted Investments and may be paid fees for such services. Each party hereto understands and agrees that proceeds of the sale of investments of the funds in any account maintained with the Paying Agent will be deposited by the Paying Agent into the applicable accounts on the Business Day on which the Paying Agent receives appropriate instructions hereunder, if such instructions received by the Paying Agent prior to the deadline for same day sale of such investments. If the Paying Agent receives such instructions after the applicable deadline for the sale of such investments, such proceeds will be deposited by the Paying Agent into the applicable account on the next succeeding Business Day. The parties hereto agree that notifications after the completion of purchases and sales of investments shall not be provided by the Paying Agent hereunder, and the Paying Agent shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement shall be made available if no investment activity has occurred during such period.
(K)The Paying Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, affiliates, custodians or nominees appointed with due care, and shall not be responsible for any action or omission on the part of any agent, attorney, custodian or nominee so appointed.
(L)Any corporation or entity into which the Paying Agent may be merged or converted or with which it may be consolidated, or any corporation or entity resulting from any merger, conversion or consolidation to which the Paying Agent shall be a party, or any corporation or entity succeeding to the business of the Paying Agent shall be the
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successor of the Paying Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
(M)In no event shall the Paying Agent be liable for punitive, special, indirect or consequential loss or damage of any kind whatsoever (including lost profits), even if the Paying Agent has been advised of such loss or damage and regardless of the form of action.
(N)In no event shall the Paying Agent be liable for any failure or delay in the performance of its obligations under this Agreement or any related documents because of circumstances beyond the Paying Agent’s control, including a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any other Transaction Document or any related documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Paying Agent’s control whether or not of the same class or kind as specified above.
(O)Knowledge of the Paying Agent shall not be attributed or imputed to any affiliate, line of business, or other division of Wells Fargo Bank, National Association (and vice versa).
(P)The right of the Paying Agent to perform any permissive or discretionary act enumerated in this Agreement or any other Transaction Document shall not be construed as a duty.
(Q)Absent gross negligence, bad faith or willful misconduct (in each case as conclusively determined by a court of competent jurisdiction pursuant to a final order or verdict not subject to appeal) on the part of, Wells Fargo Bank, National Association in acting in each of its capacities under this Agreement and the related Transaction Documents shall not constitute impermissible self-dealing or a conflict of interest, and the parties hereto hereby waive any conflict of interest presented by such service. Wells Fargo Bank, National Association may act as agent for, provide banking, custodial, collateral agency, verification and other services to, and generally engage in any kind of business, with others to the same extent as if Wells Fargo Bank, National Association, were not a party hereto. Nothing in this Agreement or any other Transaction Document
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shall in any way be deemed to restrict the right of Wells Fargo Bank, National Association to perform such services for any other person or entity, and the performance of such services for others will not, in and of itself, be deemed to violate or give rise to any duty or obligation to any party hereto not specifically undertaken by Wells Fargo Bank, National Association hereunder or under any other Transaction Document.
(R)The Paying Agent shall not be responsible for preparing or filing any reports or returns relating to federal, state or local income taxes with respect to this Agreement or any other Transaction Document other than for the Paying Agent’s compensation.
(S)The Paying Agent shall not be deemed to have notice or knowledge of, or be required to act based on, any event or information (including any Event of Default, Amortization Event or any other default and including the sending of any notice) unless a Responsible Officer of the Paying Agent has actual knowledge or shall have received written notice thereof. In the absence of such actual knowledge or receipt of such notice, the Paying Agent may conclusively assume that none of such events have occurred and the Paying Agent shall not have any obligation or duty to determine whether any Event of Default, Amortization Event or any other default has occurred. The delivery or availability of reports or other documents to the Paying Agent (including publicly available reports or documents) shall not constitute actual or constructive knowledge or notice of information contained in or determinable from those reports or documents, except for such information provided to be delivered under this Agreement to the Paying Agent; and knowledge or information acquired by any Responsible Officer of the Paying Agent in any of its respective capacities hereunder or under any other document related to this transaction, provided that the foregoing shall not relieve the Person acting as Paying Agent, as applicable, from its obligations to perform or responsibility for the manner of performance of its duties in a separate capacity under the Transaction Documents.
(T)Except as otherwise provided in this Article IX:
(i)except as expressly required pursuant to the terms of this Agreement, the Paying Agent shall not be required to make any initial or periodic examination of any documents or records for the purpose of establishing the presence or absence of defects, the compliance by the Borrower or any other Person with its representations and warranties or for any other purpose except as expressly required pursuant to the terms of this Agreement;
(ii)whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Paying Agent shall be subject to the provisions of this Article IX;
(iii)the Paying Agent shall not have any liability with respect to the acts or omissions of any other Person, and may assume compliance by each of the other parties to the Transaction Documents with their obligations thereunder unless a
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Responsible Officer of the Paying Agent is notified of any such noncompliance in writing;
(iv)under no circumstances shall the Paying Agent be personally liable for any representation, warranty, covenant, obligation or indebtedness of any other party to the Transaction Documents (other than Wells Fargo Bank, National Association in any of its capacities under the Transaction Documents);
(v)the Paying Agent shall not be held responsible or liable for or in respect of, and makes no representation or warranty with respect to (A) any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement, continuation statement or amendments to a financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any re-recording, refiling or redepositing of any thereof, or (B) the existence, genuineness, value or protection of any collateral, for the legality, enforceability, effectiveness or sufficiency of the Transaction Documents or for the monitoring, creation, maintenance, enforceability, existence, status, validity, priority or perfection of any security interest, lien or collateral or the performance of any collateral; and
(vi)the Paying Agent shall not be required to take any action hereunder if it shall have reasonably determined, or shall have been advised by its counsel, that such action is likely to result in liability on the part of the Paying Agent or is contrary to the terms hereof or any other Transaction Document to which it is a party or is not in accordance with applicable laws.
(U)It is expressly understood and agreed by the parties hereto that the Paying Agent (i) has not provided nor will it provide in the future, any advice, counsel or opinion regarding the tax, financial, investment, securities law or insurance implications and consequences of the consummation, funding and ongoing administration of this Agreement and the matters contemplated herein, including, but not limited to, income, gift and estate tax issues, and the initial and ongoing selection and monitoring of financing arrangements, (ii) has not made any investigation as to the accuracy of any representations, warranties or other obligations of any other party to this Agreement or the other Transaction Documents or any other document or instrument and shall not have any liability in connection therewith and (iii) has not prepared or verified, or shall be responsible or liable for, any information, disclosure or other statement in any disclosure or offering document delivered in connection with this Agreement or the other Transaction Documents.
(V)The recitals contained herein shall not be taken as the statements of the Paying Agent, and the Paying Agent does not assume any responsibility for their correctness. The Paying Agent does not make any representation regarding the validity, sufficiency or enforceability of this Agreement or the other Transaction Documents or as
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to the perfection or priority of any security interest therein, except as expressly set forth in Section 9.2(C).
(W)In the event that (i) the Paying Agent is unsure as to the application or interpretation of any provision of this Agreement or any other Transaction Document, (ii) this Agreement is silent or is incomplete as to the course of action that the Paying Agent is required or permitted to take with respect to a particular set of facts, or (iii) more than one methodology can be used to make any determination or calculation to be performed by the Paying Agent hereunder, then the Paying Agent may give written notice to the Administrative Agent (with a copy to each Lender) requesting written instruction and, to the extent that the Paying Agent acts or refrains from acting in good faith in accordance with any such written instruction, the Paying Agent shall not be personally liable to any Person. If the Paying Agent shall not have received such written instruction within ten (10) calendar days of delivery of notice to the Administrative Agent (or within such shorter period of time as may reasonably be specified in such notice or as may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking any action, and shall have no liability to any Person for such action or inaction.
(X)The Paying Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement or any other Transaction Document or to institute, conduct or defend any litigation hereunder or thereunder or in relation hereto or thereto at the request, order or direction of any of any Person, unless such Person with the requisite authority shall have offered to the Paying Agent security or indemnity satisfactory to the Paying Agent against the costs, expenses and liabilities (including the reasonable and documented fees and expenses of the Paying Agent’s counsel and agents) which may be incurred therein or thereby.
(Y)The Paying Agent shall have no duty (i) to maintain or monitor any insurance or (ii) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral.
(Z)Notwithstanding anything to the contrary in this Agreement, the Paying Agent shall not be required to take any action that is not in accordance with applicable law.
(AA)The rights, benefits, protections, immunities and indemnities afforded the Paying Agent hereunder shall extend to the Paying Agent (in any of its capacities) under any other Transaction Document or related agreement as though set forth therein in their entirety mutatis mutandis.
Section 9.5. Indemnification. The Borrower and the Facility Administrator (for so long as the Facility Administrator is an Affiliate of the Borrower) agree, jointly and severally, to reimburse and indemnify, defend and hold harmless the Paying Agent, in its individual and
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representative capacities, and its officers, directors, agents and employees (collectively, the “Paying Agent Indemnified Parties”) against any and all fees, costs, damages, losses, suits, claims, judgments, liabilities, obligations, penalties, actions, expenses (including the reasonable and documented fees and expenses of counsel and court costs) or disbursements of any kind and nature whatsoever, regardless of the merit, which may be imposed on, incurred by or demanded, claimed or asserted against any of them in any way directly or indirectly relating to or arising out of or in connection with this Agreement or any other Transaction Document or any other document delivered in connection herewith or therewith or the transactions contemplated hereby or thereby, or the enforcement of any of the terms hereof or thereof or of any such other documents, including in connection with any enforcement (including any action, claim or suit brought) by any Paying Agent Indemnified Party of its rights hereunder or thereunder (including rights to indemnification), provided, that none of the Borrower or the Facility Administrator shall be liable for any of the foregoing to the extent arising from the gross negligence, willful misconduct or bad faith of the Paying Agent, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The provisions of this Section 9.5 shall survive the discharge, termination or assignment of this Agreement or any related agreement or the earlier of the resignation or removal of the Paying Agent. This Section 9.5 shall not apply with respect to Taxes other than any Taxes that represent losses, liabilities, claims and damages arising from any non-Tax Proceeding. The Paying Agent Indemnified Parties’ reasonable and documented expenses are intended as expenses of administration.
Section 9.6. Successor Paying Agent. The Paying Agent may resign at any time by giving at least thirty (30) days’ prior written notice thereof to the other parties hereto; provided, that no such resignation shall become effective until a successor Paying Agent that is satisfactory to the Administrative Agent and, to the extent no Event of Default or Amortization Event has occurred and is continuing, the Borrower, has been appointed hereunder. The Paying Agent may be removed at any time for cause by at least thirty (30) days’ prior written notice received by the Paying Agent from the Administrative Agent. Upon any such resignation or removal, the Administrative Agent shall have the right to appoint a successor Paying Agent that is satisfactory to the Borrower (unless an Event of Default or Amortization Event has occurred and is continuing). If no successor Paying Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the exiting Paying Agent’s giving notice of resignation or receipt of notice of removal, then the exiting Paying Agent may, at the sole expense (including all fees, costs and expenses (including attorneys’ reasonable and documented fees and expenses) incurred in connection with such petition) of the Borrower, petition a court of competent jurisdiction to appoint a successor Paying Agent. Upon the acceptance of any appointment as the Paying Agent hereunder by a successor Paying Agent, such successor Paying Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the exiting Paying Agent, and the exiting Paying Agent shall be discharged from its duties and obligations hereunder. After any exiting Paying Agent’s resignation hereunder, the provisions of this Article IX shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Paying Agent hereunder. If the Paying Agent consolidates with, merges or converts into, or transfers or sells all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Paying Agent.
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Article X
Miscellaneous
Section 10.1. Survival. All representations and warranties made by the Borrower and the Facility Administrator herein and all indemnification obligations of the Borrower and the Facility Administrator hereunder shall survive, and shall continue in full force and effect, after the making and the repayment of the Advances hereunder and the termination of this Agreement.
Section 10.2. Amendments, Etc.
(A)No amendment to or waiver of any provision of this Agreement, nor consent to any departure therefrom by the parties hereto, shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent, on behalf of the Lenders and each Funding Agent, and the Borrower and consented to by the Majority Lenders; provided, that no such amendment or waiver shall (i) amend, modify or waive any provision of Sections 7.14 through 7.22 hereof without the written consent of all Funding Agents or (ii) affect the rights or duties of the Paying Agent, Verification Agent or Facility Administrator under this Agreement without the written consent of such Paying Agent, Verification Agent or Facility Administrator, respectively; provided, however, that no Class A Fundamental Amendment shall in any event be effective unless the same shall be in writing and signed by each of the Borrower, the Administrative Agent and the each Class A Lender; and provided further, that no Fundamental Amendment shall in any event be effective unless the same shall be in writing and signed by each of the Borrower, the Administrative Agent and each Lender; provided, that consent to any such Fundamental Amendment shall not be unreasonably withheld by any Class B Lender. The Borrower agrees to provide notice to each party hereto of any amendments to or waivers of any provision of this Agreement; provided that the Borrower shall provide the Conduit Lender with prompt written notice of any amendment to any provision of this Agreement, prior to such amendment becoming effective.
(B)Notwithstanding the foregoing or any other provision of this Agreement or any other Transaction Document to the contrary, the Administrative Agent, on behalf of the Lenders and each Funding Agent, and the Borrower may enter into an amendment hereto for the purpose of subdividing the Advances into separate tranches or reallocating the outstanding principal balance of the Advances among the Class A Advances and the Class B Advances; provided, no such amendment may be executed without the consent of all Lenders affected thereby; provided further, that such amendment shall be at the expense of the Lender or Lenders requesting such amendment and that none of the Borrower, Paying Agent or the Administrative Agent need enter into such amendment and no Lender need consent to such amendment if it would have a Material Adverse Effect on the payments, economics or obligations of any such party. Subject to the preceding sentence, each of the Borrower and the Facility Administrator agree to cooperate in effecting any amendment pursuant to this Section 10.2(B).
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(C)Notwithstanding anything to the contrary set forth in this Section 10.2, the consent of the Administrative Agent shall not be required for any amendment made in accordance with Sections 5.1(A)(ix) and (x).
Section 10.3. Notices, Etc.. All notices and other communications provided for hereunder shall be in writing and mailed or delivered by courier or facsimile: (A) if to the Borrower, to the Borrower, at its address at 20 Greenway Plaza, Suite 540, Houston, TX 77046. Attention: Chief Financial Officer and Treasurer, Facsimile: (281) 985-9907, email address: treasury@sunnova.com; notices@sunnova.com; (B) if to the Facility Administrator, at its address at 20 Greenway Plaza, Suite 540, Houston, TX 77046, Attention: Chief Financial Officer and Treasurer, Facsimile: (281) 985-9907, email address: treasury@sunnova.com; notices@sunnova.com; (C) if to the Administrative Agent, the CS Funding Agent or the CS Non-Conduit Lender, at its address at Credit Suisse AG, New York Branch, 11 Madison Avenue, 4th Floor, New York, NY 10010; Conduit and Warehouse Financing (212) 538-2007; email address: list.afconduitreports@creditsuisse.com; abcp.monitoring@creditsuisse.com; (D) if to the CS Conduit Lender, at its address at Alpine Securitization Ltd. c/o Credit Suisse AG, New York Branch 11 Madison Avenue, 4th Floor New York, NY 10010, Attention: Securitized Products Finance, E-mail: abcp.monitoring@credit-suisse.com; (E) if to SVB, as a Class A Funding Agent or a Class A Lender, 387 Park Ave. South, 2nd Floor, New York, NY 10016, Attention: Tai Pimputkar, Email: TPimputkar@svb.com, Telephone: +1 (212) 251-5639; (F) if to the Class B-I Lender or the Class B-II Lender, at its address at LibreMax Opportunistic Value Master Fund, LP, c/o LibreMax Capital, LLC, 600 Lexington Ave, 7th Floor, New York, NY 10022, Attention: Frank Bruttomesso, Email: fbruttomesso@libremax.com, Telephone: 212-612-1565; (G) if to the Paying Agent, at its address at 600 S. 4th Street, MAC N9300-061, Minneapolis, Minnesota 55415, Attention: Corporate Trust Services – Asset-Backed Administration, E-mail: ctsabsservicer@wellsfargo.com; and (H) in the case of any party, at such address or other address as shall be designated by such party in a written notice to each of the other parties hereto. Notwithstanding the foregoing, each Facility Administrator Report described in Section 5.1(B) and the Borrowing Base Certificate described in Section 2.4 may be delivered by electronic mail; provided, that such electronic mail is sent by a Responsible Officer and each such Facility Administrator Report or the Borrowing Base Certificate is accompanied by an electronic reproduction of the signature of a Responsible Officer of the Borrower. All such notices and communications shall be effective, upon receipt, provided, that notice by facsimile or email shall be effective upon electronic or telephonic confirmation of receipt from the recipient.
Section 10.4. No Waiver; Remedies. No failure on the part of the Administrative Agent or any Lender to exercise, and no delay in exercising, any right hereunder or under the Loan Notes shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 10.5. Indemnification. The Borrower agrees to indemnify the Administrative Agent, the Paying Agent, the Successor Facility Administrator, the Verification Agent, each Lender, and their respective Related Parties (collectively, the “Indemnitees”) from and hold each of them harmless against any and all losses, liabilities, claims, damages or expenses (including court costs and fees and expenses of counsel and of enforcing the Borrower’s indemnification obligations hereunder) to which such Indemnitee may become subject arising out of, resulting from or in connection
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with any claim, litigation, investigation or proceeding (each, a “Proceeding” (including any Proceedings under environmental laws)) relating to the Transaction Documents or any other agreement, document, instrument or transaction related thereto, the use of proceeds thereof and the transactions contemplated hereby, regardless of whether any Indemnitee is a party thereto and whether or not such Proceedings are brought by the Borrower, its equity holders, affiliates, creditors or any other third party, and to reimburse each Indemnitee upon written demand therefor (together with reasonable back-up documentation supporting such reimbursement request) for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing of one law firm to all such Indemnitees, taken as a whole, and, in the case of a conflict of interest, of one additional counsel to the affected Indemnitee taken as a whole (and, if reasonably necessary, of one local counsel and/or one regulatory counsel in any material relevant jurisdiction); provided, that the foregoing indemnity and reimbursement obligation will not, as to any Indemnitee, apply to (A) losses, claims, damages, liabilities or related expenses (i) to the extent they are found in a final non-appealable judgment of a court of competent jurisdiction to arise from the willful misconduct, bad faith or gross negligence of, or with respect to Indemnitees other than the Paying Agent or the Verification Agent, material breach of the Transaction Documents by, such Indemnitee or any of its affiliates or controlling persons or any of the officers, directors, employees, advisors or agents of any of the foregoing or (ii) arising out of any claim, litigation, investigation or proceeding that does not involve an act or omission of the Borrower or any of their Affiliates and that is brought by such Indemnitee against another Indemnitee (other than an Indemnitee acting in its capacity as Paying Agent, agent, arranger or any other similar role in connection with the Transaction Documents) or (B) any settlement entered into by such Indemnitee without the Borrower’s written consent (such consent not to be unreasonably withheld or delayed). This Section 10.5 shall not apply with respect to Taxes other than any Taxes that represent losses, liabilities, claims and damages arising from any non-Tax Proceeding. The provisions of this Section 10.5 shall survive the discharge, termination or assignment of this Agreement or any related agreement or the earlier of the resignation or removal of the Paying Agent or the Verification Agent. Notwithstanding anything to the contrary in this Section 10.5, the provisions of this Section shall be applied without prejudice to, and the provisions shall not have the effect of diminishing, the rights of the Paying Agent and any Paying Agent Indemnified Parties under Section 9.5 of this Agreement or any other provision of any Transaction Document providing for the indemnification of any such Persons.
Section 10.6. Costs, Expenses and Taxes. The Borrower agrees to pay all reasonable and documented costs and expenses in connection with the preparation, execution, delivery, filing, recording, administration, modification, amendment or waiver of this Agreement, the Loan Notes and the other documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent, any Lender and the Paying Agent with respect thereto and with respect to advising the Administrative Agent, such Lender and the Paying Agent as to their respective rights and responsibilities under this Agreement and the other Transaction Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including reasonable and documented counsel fees and expenses) (A) in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Loan Notes and the other documents to be delivered hereunder and (B) incurred by the Administrative Agent, any Lender or the Paying Agent in connection with the transactions described herein and in the other Transaction Documents, or any potential Takeout Transaction, including in any case reasonable and documented counsel fees and expenses in connection with the enforcement of rights under this Section 10.6. Without
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
limiting the foregoing, the Borrower acknowledges and agrees that the Administrative Agent or its counsel may at any time after an Event of Default shall have occurred and be continuing, engage professional consultants selected by the Administrative Agent to conduct additional due diligence with respect to the transactions contemplated hereby, including (A) review and independently assess the existing methodology employed by the Borrower in allocating Collections with respect to the Collateral, assess the reasonableness of the methodology for the equitable allocation of those Collections and make any recommendations to amend the methodology, if appropriate, (B) review the financial forecasts submitted by the Borrower to the Administrative Agent and assess the reasonableness and feasibility of those forecasts and make any recommendations based on that review, if appropriate, and (C) verify the asset base of the Borrower and the Borrower’s valuation of their assets, as well as certain matters related thereto. The reasonable and documented fees and expenses of such professional consultants, in accordance with the provisions of this Section 10.6, shall be at the sole cost and expense of the Borrower. In addition, the Borrower shall pay any and all Other Taxes and agrees to save the Administrative Agent, the Paying Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxes. Notwithstanding anything to the contrary set forth in this Section 10.6, the Borrower shall not be required to pay the costs or expenses of the Lenders following an Event of Default if such costs or expenses are related to disputes among the Lenders.
Section 10.7. Right of Set-off; Ratable Payments; Relations Among Lenders. (A) Upon the occurrence and during the continuance of any Event of Default, and subject to the prior payment of Obligations owed to the Paying Agent, each of the Administrative Agent and the Lenders are hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by and other indebtedness incurred pursuant to this Agreement at any time owing to the Administrative Agent or such Lender to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement and the Loan Notes, whether or not the Administrative Agent or such Lenders shall have made any demand under this Agreement or the Loan Notes and although such obligations may be unmatured. The Administrative Agent and each Lender agrees promptly to notify the Borrower after any such set-off and application; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Administrative Agent and the Lenders under this Section 10.7(A) are in addition to other rights and remedies (including other rights of set-off) which the Administrative Agent and the Lenders may have.
(A)If any Lender, whether by setoff or otherwise, has payment made to it upon its Advances in a greater proportion than that received by any other Lender, such other Lender agrees, promptly upon demand, to purchase a portion of the Advances held by the Lenders so that after such purchase each Lender will hold its ratable share of Advances. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon written demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in proportion to the obligations owing to them. In case any such
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payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made.
(B)Except with respect to the exercise of set-off rights of any Lender in accordance with Section 10.7(A), the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or any other obligor hereunder or with respect to any Collateral or Transaction Document, without the prior written consent of the other Lenders or, as may be provided in this Agreement or the other Transaction Documents, at the direction of the Administrative Agent.
(C)The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender.
Section 10.8. Binding Effect; Assignment. (A) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Paying Agent, the Verification Agent, the Facility Administrator and the Administrative Agent and each Lender, and their respective successors and assigns, except that the Borrower shall not have the right assign to its rights hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders, and any assignment by Borrower in violation of this Section 10.8 shall be null and void. Any Lender may at any time, without the consent of the Borrower or the Administrative Agent, assign all or any portion of its rights and obligations under this Agreement and any Loan Note to a Federal Reserve Bank and each Conduit Lender may assign its rights and obligations under this Agreement to a Program Support Provider; provided, that no such assignment or pledge shall release the transferor Lender from its obligations hereunder. Each Lender may assign to one or more banks or other entities all or any part or portion of, or may grant participations to one or more banks or other entities in all or any part or portion of its rights and obligations hereunder (including, without limitation, its Commitment, its Loan Notes or its Advances); provided that during the Availability Period, no Lender may transfer or assign any portion of its rights and obligations under this Agreement or any Loan Note to a Disqualified Lender; provided further that each such assignment (A) shall be substantially in the form of Exhibit F hereto or any other form reasonably acceptable to the Administrative Agent and (B) shall either be made (i) to a Permitted Assignee or (ii) to a Person that is acceptable to the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld or delayed) unless an Event of Default or Amortization Event shall have occurred and be continuing.
(A)If any assignment or participation is made to a Disqualified Lender in violation of this Section 10.8, the Borrower may upon notice to the applicable Disqualified Lender and the Administrative Agent, (A) purchase or prepay the Advances held by such Disqualified Lender by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such Advances, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (B) require such Disqualified Lender to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 10.8), all of its interest, rights and obligations under this Agreement to one or
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more banks or other entities at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
Disqualified Lenders (A) will not, absent an Event of Default or consent from the Borrower (x) have the right to receive financial reports that are not publicly available, Facility Administrator Reports or other reports or confidential information provided to Lenders by the Borrower or the Administrative Agent (other than Tax reporting information with respect to the Advances), (y) attend or participate in meetings with the Borrower attended by the Lenders and the Administrative Agent, or (z) access any electronic site maintained by the Borrower or Administrative Agent to provide Lenders with confidential information or confidential communications from counsel to or financial advisors of the Administrative Agent and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Transaction Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such matter, and (y) for purposes of voting on any plan of reorganization or plan of liquidation, each Disqualified Lender party hereto hereby agrees (1) not to vote on such plan, (2) if such Disqualified Lender does vote on such plan notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other debtor relief laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other debtor relief laws) and (3) not to contest any request by any party for a determination by a bankruptcy court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
(B)Upon, and to the extent of, any assignment (unless otherwise stated therein) made by any Lender hereunder, the assignee or purchaser of such assignment shall be a Lender hereunder for all purposes of this Agreement and shall have all the rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.17(G)) of a Lender hereunder. Each Funding Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices a register (the “Register”) for the recordation of the names and addresses of the Lenders in its Lender Group, the outstanding principal amounts (and accrued interest) of the Advances owing to each Lender in its Lender Group pursuant to the terms hereof from time to time and any assignment of such outstanding Advances. The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Paying Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(C)Any Lender may, without the consent of the Borrower, sell participation interests in its Advances and obligations hereunder (each such recipient of a participation a “Participant”); provided that after giving effect to the sale of such participation, such Lender’s obligations hereunder and rights to consent to any waiver hereunder or amendment hereof shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, all amounts payable to such Lender hereunder and all rights to consent to any waiver hereunder or amendment hereof shall be determined as if such Lender had not sold such participation interest, and the Borrower and the Administrative Agent and the other parties hereto shall continue to deal solely and directly with such Lender and not be obligated to deal with such participant. The Participant shall have no right to affect such Lender’s vote or action with respect to any matter requiring such Lender’s vote or action under this Agreement. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the outstanding principal amounts (and accrued interest) of each Participant’s interest in the Advances or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register. Each recipient of a participation shall, to the fullest extent permitted by law, have the same rights, benefits and obligations (including the obligation to provide documentation pursuant to Section 2.17(G)), hereunder with respect to the rights and benefits so participated as it would have if it were a Lender hereunder, except that no Participant shall be entitled to receive any greater payment under Sections 2.11 or 2.17 than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(D)Notwithstanding any other provision of this Agreement to the contrary, (i) a Lender may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a security trustee in connection with the funding by such Lender of Advances without the consent of the Borrower; provided that no such pledge or grant shall release such Lender from its obligations under this Agreement and (ii) a Conduit Lender may at any time, without any requirement to obtain the consent of the Administrative Agent or the Borrower, pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment
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of capital and yield) under this Agreement to a collateral agent or trustee for its commercial paper program.
(E)In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its Lender Group Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this clause (F), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Section 10.9. Governing Law. This Agreement shall, in accordance with Section 5-1401 of the General Obligations Law of the State of New York, be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflicts of law principles thereof that would call for the application of the laws of any other jurisdiction.
Section 10.10. Jurisdiction. Any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York (New York County) or of the United States for the Southern District of New York, and by execution and delivery of this agreement, each of the parties hereto consents, for itself and in respect of its property, to the exclusive jurisdiction of those courts. Each of the parties hereto irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, or any legal process with respect to itself or any of its property, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Agreement or any document related hereto. Each of the parties hereto waives personal service of any summons, complaint or other process, which may be made by any other means permitted by New York law.
Section 10.11. Waiver of Jury Trial. All parties hereunder hereby knowingly, voluntarily and intentionally waive any rights they may have to a trial by jury in respect of any litigation based hereon, or arising out of, under, or in connection with, this Agreement, or any course of conduct, course of dealing, statements (whether oral or written) or actions of the parties in connection herewith or therewith. All parties acknowledge and agree that they have received full and significant consideration for this provision and that this provision is a material inducement for all parties to enter into this Agreement.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 10.12. Section Headings. All section headings are inserted for convenience of reference only and shall not affect any construction or interpretation of this Agreement.
Section 10.13. Tax Characterization. The parties hereto intend for the transactions effected hereunder to constitute a loan for U.S. federal income tax purposes.
Section 10.14. Execution. This Agreement 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 Agreement by facsimile or by e-mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 10.15. Limitations on Liability. None of the members, managers, general or limited partners, officers, employees, agents, shareholders, directors, Affiliates or holders of limited liability company interests of or in the Borrower shall be under any liability to the Administrative Agent or the Lenders, respectively, any of their successors or assigns, or any other Person for any action taken or for refraining from the taking of any action in such capacities or otherwise pursuant to this Agreement or for any obligation or covenant under this Agreement, it being understood that this Agreement and the obligations created hereunder shall be, to the fullest extent permitted under applicable law, with respect to the Borrower, solely the limited liability company obligations of the Borrower. The Borrower and any member, manager, partner, officer, employee, agent, shareholder, director, Affiliate or holder of a limited liability company interest of or in the Borrower may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (other than the Borrower) respecting any matters arising hereunder.
Section 10.16. Confidentiality. (A) Except as otherwise provided herein, the Fee Letters (including such information set forth in any engagement letter, term sheet or proposal prior to the Original Closing Date that contains fees similar in nature to those in the Fee Letters) (collectively, “Confidential Information”) are confidential. Each of the Borrower, the Facility Administrator, the Paying Agent and the Verification Agent agrees:
(i)to keep all Confidential Information confidential and to disclose Confidential Information only to those Affiliates, officers, employees, agents, accountants, equity holders, legal counsel and other representatives of the Borrower or its Affiliates (collectively, “Representatives”) who have a need to know such Confidential Information for the purpose of assisting in the negotiation, completion and administration of this Facility;
(ii)to use the Confidential Information only in connection with the Facility and not for any other purpose; and
(iii)to maintain and keep in force procedures reasonably designed to cause its Representatives to comply with these provisions and to be responsible for any failure of any Representative to follow those procedures. The provisions of this section
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
10.16(A) shall not apply to Confidential Information that (a) has been approved for release by written authorization of the appropriate party, or (b) is or hereafter becomes (through a source other than the Borrower, the Facility Administrator, the Paying Agent, the Verification Agent or their respective Affiliates or Representatives) generally available to the public and shall not prohibit the disclosure of Confidential Information to the extent required by applicable Law or by any Governmental Authority or to the extent necessary in connection with the enforcement of any Transaction Document.
The Borrower and the Facility Administrator agree not to provide copies of the Transaction Documents to any prospective investor in, or prospective lender to, the Borrower and the Facility Administrator without the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, delayed or conditioned. For the avoidance of doubt, Borrower and the Facility Administrator or any other affiliate of Parent may provide copies of the Transaction Documents to any potential investor or equity holder in Parent or its affiliates, provided that each such Person shall have been instructed to keep the same confidential in accordance with this Section 10.16.
(B)Each Lender, each Funding Agent, and the Administrative Agent agrees to maintain the confidentiality of all nonpublic information with respect to the parties herein or any other matters furnished or delivered to it pursuant to or in connection with this Agreement or any other Transaction Document; provided, that such information may be disclosed (i) to such party’s Affiliates or such party’s or its Affiliates’ officers, directors, employees, agents, accountants, legal counsel and other representatives (collectively “Lender Representatives”), in each case, who have a need to know such information for the purpose of assisting in the negotiation, completion and administration of the Facility and on a confidential basis, (ii) to any permitted assignee of or participant in, or any prospective assignee of or participant in, the Facility or any of its rights or obligations under this Agreement, in each case on a confidential basis, (iii) to any financing source, dealer, hedge counterparty or other similar party in connection with financing or risk management activities related to the Facility, (iv) to any Commercial Paper rating agency (including by means of a password protected internet website maintained in connection with Rule 17g-5), (v) to the extent required by applicable Law or by any Governmental Authority, and (vi) to the extent necessary in connection with the enforcement of any Transaction Document.
The provisions of this Section 10.16(B) shall not apply to information that (i) is or hereafter becomes (through a source other than the applicable Lender, Funding Agent or the Administrative Agent or any Lender Representative associated with such party) generally available to the public, (ii) was rightfully known to the applicable Lender, applicable Funding Agent or the Administrative Agent or any Lender Representative or was rightfully in their possession prior to the date of its disclosure pursuant to this Agreement, (iii) becomes available to the applicable Lender, applicable Funding Agent or the Administrative Agent or any Lender Representative from a third party unless to their knowledge such third party disclosed such information in breach of an obligation of confidentiality to the applicable Lender, applicable Funding Agent or the Administrative Agent or any Lender Representative, (iv) has been
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approved for release by written authorization of the parties whose information is proposed to be disclosed, or (v) has been independently developed or acquired by any Lender, any Funding Agent or the Administrative Agent or any Lender Representative without violating this Agreement. The provisions of this Section 10.16 shall not prohibit any Lender, any Funding Agent or the Administrative Agent from filing with or making available to any judicial, governmental or regulatory agency or providing to any Person with standing any information or other documents with respect to the Facility as may be required by applicable Law or requested by such judicial, governmental or regulatory agency.
Section 10.17. Limited Recourse. All amounts payable by the Borrower on or in respect of the Obligations shall constitute limited recourse obligations of the Borrower secured by, and payable solely from and to the extent of, the Collateral; provided that (A) the foregoing shall not limit in any manner the ability of the Administrative Agent or any other Lender to seek specific performance of any Obligation (other than the payment of a monetary obligation in excess of the amount payable solely from the Collateral), (B) the provisions of this Section 10.17 shall not limit the right of any Person to name the Borrower as party defendant in any action, suit or in the exercise of any other remedy under this Agreement or the other Transaction Documents and (C) when any portion of the Collateral is transferred in a transfer permitted under and in accordance with this Agreement, the security interest in and Lien on such Collateral shall automatically be released, and the Lenders under this Agreement will no longer have any security interest in, lien on, or claim against such Collateral. No recourse shall be sought or had for the obligations of the Borrower against any Affiliate, director, officer, shareholder, manager or agent of the Borrower other than as specified in the Transaction Documents.
Section 10.18. Customer Identification - USA Patriot Act Notice. The Administrative Agent and each Lender hereby notifies the Borrower and the Facility Administrator that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the “Patriot Act”), and the Administrative Agent’s and each Lender’s policies and practices, the Administrative Agent and the Lenders are required to obtain, verify and record certain information and documentation that identifies the Borrower and the Facility Administrator, which information includes the name and address of the Borrower and such other information that will allow the Administrative Agent or such Lender to identify the Borrower in accordance with the Patriot Act.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 10.19. Paying Agent Compliance with Applicable Anti-Terrorism and Anti-Money Laundering Regulations. In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, but not limited to those relating to funding of terrorist activities and money laundering, the Paying Agent is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Paying Agent. Accordingly, each of the parties agrees to provide to the Paying Agent upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Paying Agent to comply with such laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, but not limited to those relating to funding of terrorist activities and money laundering.
Section 10.20. Non-Petition. Each party hereto hereby covenants and agrees that it will not institute against or join any other Person in instituting against the Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or of any state of the United States or of any other jurisdiction prior to the date which is one year and one day after the payment in full of all outstanding indebtedness of the Conduit Lender. The agreements set forth in this Section 10.20 and the parties’ respective obligations under this Section 10.20 shall survive the termination of this Agreement.
Section 10.21. No Recourse. (A) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto hereby acknowledge and agree that all transactions with a Conduit Lender hereunder shall be without recourse of any kind to such Conduit Lender. A Conduit Lender shall have no liability or obligation hereunder unless and until such Conduit Lender has received such amounts pursuant to this Agreement. In addition, the parties hereto hereby agree that (i) a Conduit Lender shall have no obligation to pay the parties hereto any amounts constituting fees, reimbursement for expenses or indemnities (collectively, “Expense Claims”) and such Expense Claims shall not constitute a claim (as defined in Section 101 of Title 11 of the Bankruptcy Code or similar laws of another jurisdiction) against such Conduit Lender, unless or until such Conduit Lender has received amounts sufficient to pay such Expense Claims pursuant to this Agreement and such amounts are not required to pay the outstanding indebtedness of such Conduit Lender and (ii) no recourse shall be sought or had for the obligations of a Conduit Lender hereunder against any Affiliate, director, officer, shareholders, manager or agent of such Conduit Lender.
(A)The agreements set forth in this Section 10.21 and the parties’ respective obligations under this Section 10.21 shall survive the termination of this Agreement.
Section 10.22. [Reserved].
Section 10.23. Additional Paying Agent Provisions. The parties hereto acknowledge that the Paying Agent shall not be required to act as a “commodity pool operator” as defined in the Commodity Exchange Act, as amended, or be required to undertake regulatory filings related to this Agreement in connection therewith.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Section 10.24. Acknowledgement Regarding Any Supported QFCs. To the extent that the Transaction Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Transaction Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Transaction Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Transaction Documents were governed by the laws of the United States or a state of the United States.
Section 10.25. Effect of Amendment and Restatement. Each of the parties hereto acknowledges and agrees that, upon the satisfaction of the conditions in Section 3.4, this Agreement amends, restates and in all respects replaces the Original Credit Agreement. Each of the parties hereto acknowledges and agrees that any reference to the “Credit Agreement” in the other Transaction Documents shall mean and be references to the Original Credit Agreement as amended and restated by this Agreement. All indebtedness, liabilities and obligations of the Borrower outstanding under the Original Credit Agreement and the Loan Notes and other documents delivered thereunder shall, to the extent not paid on or prior to the closing and effectiveness of this Agreement as an amended and restated Agreement on the Amendment and Restatement Date, be extended and renewed so as to continue and be Obligations outstanding hereunder. The Original Credit Agreement and other Transaction Documents as in effect prior to the Amendment and Restatement Date shall exclusively govern all acts, representations, qualifications to representations and other rights and duties of any Relevant Party hereunder and thereunder during the period of time on and after the Original Closing Date and prior to the Amendment and Restatement Date.
[Signature Pages Follow]
-111-
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
In Witness Whereof, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
Sunnova TEP Holdings, LLC, as Borrower
By: ____________________________________
Name:
Title:
Sunnova TE Management, LLC, as Facility Administrator
By: ____________________________________
Name:
Title:
[Signature Page to Sunnova TEP IV A&R Warehouse Credit Agreement]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Credit Suisse AG, New York Branch,
as Administrative Agent and as a Funding Agent
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
Credit Suisse AG, Cayman Islands Branch,
as a Lender
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
[Signature Page to Sunnova TEP IV A&R Warehouse Credit Agreement]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause 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: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
[Signature Page to Sunnova TEP IV A&R Warehouse Credit Agreement]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Silicon Valley Bank, as a Funding Agent and as a Lender
By: _________________________________
Name:
Title:
[Signature Page to Sunnova TEP IV A&R Warehouse Credit Agreement]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause 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: _________________________________
Name:
Title:
[Signature Page to Sunnova TEP IV A&R Warehouse Credit Agreement]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Wells Fargo Bank, National Association,
not in its individual capacity but solely as Paying Agent
By: _________________________________
Name:
Title:
[Signature Page to Sunnova TEP IV A&R Warehouse Credit Agreement]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
U.S. Bank National Association,
as Verification Agent
By: _________________________________
Name:
Title:
[Signature Page to Sunnova TEP IV A&R Warehouse Credit Agreement]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit A
Defined Terms
“1940 Act” shall mean the Investment Company Act of 1940, as amended.
“A-1 Verification Agent Certification” shall have the meaning set forth in Section 4(a) of the Verification Agent Agreement.
“A-2 Verification Agent Certification” shall have the meaning set forth in Section 4(b) of the Verification Agent Agreement.
“Accession Agreement” shall mean (i) a Security Agreement Supplement in the form of Exhibit B to the Security Agreement, (ii) a Pledge Agreement Joinder in the form of Exhibit A to the Pledge Agreement, (iii) a Joinder Agreement in the form of Exhibit C to the Verification Agent Agreement, (iv) Guaranty Supplement in the form of Exhibit A to the Subsidiary Guaranty and (v) an Subsidiary Supplement in the form of Exhibit A to the Parent Guaranty.
“Additional Interest Distribution Amount” shall mean, individually or collectively as the context may require, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amount. For the avoidance of doubt, the Additional Interest Distribution Amount shall not constitute “Confidential Information.”
“Additional Solar Assets” shall mean each Eligible Solar Asset that is acquired by a Financing Fund or SAP after the Original Closing Date and during the Availability Period.
“Adjusted LIBOR Rate” shall mean a rate per annum equal to the rate (rounded upwards, if necessary, to the next higher 1/100 of 1%) obtained by dividing (i) LIBOR by (ii) a percentage equal to 100% minus the reserve percentage (rounded upward to the next 1/100th of 1%) in effect on such day and applicable to the Non-Conduit Lender for which this rate is calculated under regulations issued from time to time by the Board of Governors of the Federal Reserve System for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “eurocurrency liabilities”). The Adjusted LIBOR Rate shall be adjusted automatically as of the effective date of any change in such reserve percentage.
“Administrative Agent” shall have the meaning set forth in the introductory paragraph hereof.
“Administrative Agent’s Account” shall mean the Administrative Agent’s bank account designated by the Administrative Agent from time to time by written notice to the Borrower.
“Advance” shall mean, individually or collectively, as the context may require, a Class A Advance and/or a Class B Advance.
A-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Affected Party” shall have the meaning set forth in Section 2.12(B).
“Affiliate” shall mean, with respect to any Person, any other Person that (i) directly or indirectly controls, is controlled by, or is under direct or indirect common control with such Person, or, (ii) is an officer or director of such Person, and in the case of any Lender that is an investment fund, the investment advisor thereof and any investment fund having the same investment advisor. A Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, power to (a) vote 50% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing partners of such other Person, or (b) direct or cause the direction of the management and policies of such other Person whether by contract or otherwise.
“Affiliated Entity” shall mean any of the Parent, the Facility Administrator (if the Facility Administrator is an Affiliate of the Borrower), a Seller, an Assignor, and any of their respective direct or indirect Subsidiaries and/or Affiliates, whether now existing or hereafter created, organized or acquired.
“Aggregate Commitment” shall mean, on any date of determination, the sum of the Commitments then in effect. The Aggregate Commitment as of the Amendment and Restatement Date shall be equal to $460,714,286.
“Aggregate Discounted Solar Asset Balance” shall mean, on any date of determination, the sum of the Discounted Solar Asset Balances for the Managing Member Interests, the SAP Solar Assets and any Hedged SREC Solar Assets. Any Managing Member Interests, SAP Solar Assets or Hedged SREC Solar Assets that would otherwise be duplicated in computing this sum shall only be counted once. For the avoidance of doubt, the Aggregate Discounted Solar Asset Balance shall not include any amounts attributable to Service Incentives, Excess SREC Proceeds or SREC Direct Sale Proceeds or, prior to the completion of satisfactory due diligence and approval by the Administrative Agent (such approval to be made in its sole discretion), New Jersey TRECs or MA SMART Revenue.
“Aggregate Outstanding Advances” shall mean, as of any date of determination, the sum of (i) the aggregate principal balance of all Class A Advances outstanding plus (ii) the aggregate principal balance of all Class B Advances outstanding.
“Agreement” shall have the meaning set forth in the introductory paragraph hereof.
“A.M. Best” shall mean A. M. Best Company, Inc. and any successor rating agency.
“Amendment and Restatement Date” shall mean March 29, 2021.
“Amendment and Restatement Documents” shall have the meaning set forth in Section 3.4(A).
A-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Amortization Event” shall mean the occurrence of the any of the following events:
(i)a Facility Administrator Termination Event;
(ii)the Solar Asset Payment Level is less than 88.0%;
(iii)the Managing Member Distributions Payment Level is less than 88.0%;
(iv)the Default Level is greater than 0.75%;
(v)the Default Level is greater than 0.40% for two consecutive Collection Periods;
(vi)an Event of Default (whether or not cured by a Tax Equity Investor);
(vii)a Tax Loss Insurance Policy ceases to be of full force and effect or ceases to meet the requirements of the related Tax Equity Facility;
(viii)if Sunnova Management is the Facility Administrator and the sum of (a) the net cash provided by operating activities of Sunnova Management, as reported in any set of quarterly financial statements delivered pursuant to Section 5(q)(ii) of the Parent Guaranty plus (b) unrestricted cash on hand held by Sunnova Management as of the date of such financial statements, shall be negative (for purposes of this clause (viii), the term “net cash” and “operating activities” shall have the meanings attributable to such terms under GAAP); provided, that if (x) on or prior to the date that is fifteen (15) Business Days after the date on which it is determined that such amount is negative, the Parent Guarantor’s equity holders, any of their Affiliates and any other Person makes an equity investment to Sunnova Management in cash in an amount not less than such shortfall, and such cash, if so designated by Sunnova Management, be included as unrestricted cash, and (y) any such action described in subclause (x) is communicated to the Administrative Agent in writing, then no Amortization Event shall be deemed to have occurred or be continuing;
(ix)Parent breaches any of the Financial Covenants and such breach has not been cured in accordance with Section 5(r) of the Parent Guaranty;
(x)the amounts on deposit in the Liquidity Reserve Account are at any time less than the Liquidity Reserve Account Required Balance and such deficit is not cured by the earlier of the next Payment Date or the next Funding Date;
(xi)the amounts on deposit in the Supplemental Reserve Account are at any time less than the Supplemental Reserve Account Required Balance and such deficit is not cured by the earlier of the next Payment Date or the next Funding Date; or
A-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(xii)the occurrence of a default under a Sunnova Credit Facility;
provided, that clause (v) shall not apply during the 30-day period following a Takeout Transaction if the threshold set forth in clause (v) would not have been breached but for the occurrence of such Takeout Transaction.
“Amortization Period” shall mean the period commencing at the end of the Availability Period.
“Ancillary PV System Components” shall mean main panel upgrades, generators, critter guards, snow guards, electric vehicle chargers, roofing and landscaping materials, automatic transfer switches and load controllers.
“Ancillary Solar Service Agreements” shall mean in respect of each Eligible Solar Asset, all agreements and documents ancillary to the Solar Service Agreement associated with such Eligible Solar Asset, which are entered into with a Host Customer in connection therewith, including any Customer Warranty Agreement.
“Applicable Law” shall mean all applicable laws of any Governmental Authority, including, without limitation, laws relating to consumer leasing and protection and any ordinances, judgments, decrees, injunctions, writs and orders or like actions of any Governmental Authority and rules and regulations of any federal, regional, state, county, municipal or other Governmental Authority.
“Approved Installer” shall mean an installer that has entered into an agreement with Parent (or an Affiliate thereof) to design, procure and install PV Systems on the properties of Host Customers and that has an active account with Parent at the time of installation of an applicable PV System.
“Approved Tax Equity Partner” shall mean, collectively, those Persons and its Affiliates (including any guarantor that may provide a guaranty on behalf of such Person) listed on Schedule XIII hereto, as the same may be updated by the Borrower from time to time with the approval of the Administrative Agent.
“Approved U.S. Territory” shall initially mean Puerto Rico, Guam and the Northern Mariana Islands and shall mean any other territory of the United States which the Administrative Agent has, in its sole discretion, approved as an Approved U.S. Territory, by providing a written notice to the Borrower regarding the same.
“Approved Vendor” shall mean a manufacturer of Solar Photovoltaic Panels, Inverters or Energy Storage Systems for PV Systems that was approved by the Parent and listed on the Parent’s list of approved vendors as of the time of installation of an applicable PV System.
A-4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Assignor” shall mean each of Parent, Intermediate Holdco, Sunnova Inventory Holdings, Sunnova Inventory Pledgor, TEP Inventory, and, if applicable, SAP Seller, as assignors of Solar Assets and/or Solar Asset Owner Membership Interests pursuant to a Contribution Agreement.
“Availability Period” shall mean the period from the Original Closing Date until the earlier to occur of (i) the Commitment Termination Date, and (ii) an Amortization Event.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Accrual Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then removed from the definition of “Interest Accrual Period” pursuant to clause (F) of Section 2.15.
“Bank Base Rate” shall mean, with respect to any Lender for any day, a rate per annum equal to the Base Rate with respect to such Lender on such date.
“Bankruptcy Code” shall mean the U.S. Bankruptcy Code, 11 U.S.C. § 101, et seq., as amended.
“Base Rate” shall mean, with respect to any Lender for any day, a rate per annum equal to the greater of (i) the prime rate of interest announced publicly by a Funding Agent with respect to its Lender Group (or the Affiliate of such Lender or Funding Agent, as applicable, that announces such rate) as in effect at its principal office from time to time, changing when and as said prime rate changes (such rate not necessarily being the lowest or best rate charged by such Person) or, if such Lender, Funding Agent or Affiliate thereof does not publicly announce the prime rate of interest, as quoted in The Wall Street Journal on such day and (ii) the sum of (a) 0.50% and (b) the rate equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by such Funding Agent with respect to such Lender Group from three Federal funds brokers of recognized standing selected by it. Any change in the Base Rate due to a change in the rate described in clause (i) or clause (ii) shall be effective from and including the effective date of such change in rate. Notwithstanding the foregoing, if the Base Rate as determined herein would be (i) with respect to determining the interest rate applicable to any Class A Advances, less than zero percent (0.00%), such rate shall be deemed to be zero percent (0.00%) and (ii) with respect to determining the interest rate applicable to any Class B Advances, less than one half of one percent (0.50%), such rate shall be deemed to be one half of one percent (0.50%) for purposes of this Agreement.
“Base Case Model” shall mean a computer model agreed to by a Managing Member and the related Tax Equity Investor showing the expected economic results from ownership of the
A-5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
PV Systems owned by the related Financing Fund and the assumptions to be used in calculating when the such Tax Equity Investor has reached its target internal rate of return, which is attached as an exhibit to the related Financing Fund LLCA.
“Base Reference Banks” shall mean the principal London offices of Standard Chartered Bank, Lloyds TSB Bank, Royal Bank of Scotland, Deutsche Bank and the investment banking division of Barclays Bank PLC or such other banks as may be appointed by the Administrative Agent with the approval of the Borrower.
“Basel III” shall mean Basel III: A global regulatory framework for more resilient banks and banking systems prepared by the Basel Committee on Banking Supervision, and all national implementations thereof.
“Benchmark” means, initially, the Adjusted LIBOR Rate; provided that, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Adjusted LIBOR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (B) of Section 2.15.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1)the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2)the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3)the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar denominated asset-backed syndicated credit facilities substantially similar hereto at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), the related Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.
A-6
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Accrual Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(4)for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(a)the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Accrual Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; or
(b)the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Accrual Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor;
(5)for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated asset-backed syndicated credit facilities substantially similar hereto; provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Change” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including any changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Accrual Period,” timing and frequency of determining rates and making payments of interest, timing of
A-7
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides, in its reasonable discretion, may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides, in its reasonable discretion, is reasonably necessary in connection with the administration of this Agreement or any other Transaction Document).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(6)in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(7)in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; and
(8)in the case of an Early Opt-In Election, the date that is thirty (30) days after the date an Early Opt-In Election Notice is provided to the Lenders and the Borrower pursuant to Section 2.15(C), so long as the Administrative Agent has not received by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-In Election is provided to the Lenders, written notice of objection to such Early Opt-In Election from Lenders comprising the Majority Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(9)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased to provide all
A-8
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(10)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(11)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Tranasction Document in accordance with Section 2.15 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and in accordance with Section 2.15.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
A-9
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Bidder” shall have the meaning set forth in Section 6.4.
“Borrower” shall have the meaning set forth in the introductory paragraph hereof.
“Borrower’s Account” shall mean (i) the bank account of the Borrower, described on Schedule II attached hereto, for the benefit of the Borrower or (ii) such other account as may be designated by the Borrower from time to time by at least ten (10) Business Days’ prior written notice to the Administrative Agent and the Lenders, so long as such other account is acceptable to the Administrative Agent in its sole and absolute discretion.
“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)(a) the portion of clause (x) that not is Puerto Rico Solar Assets or Substantial Stage Solar Assets, the applicable amount set forth in Column A of Schedule XII hereto, (b) the portion of clause (x) that is Puerto Rico Solar Assets that are not Substantial Stage Solar Assets, the applicable amount set forth in Column B of Schedule XII hereto, and (c) the portion of clause (x) that is Substantial Stage Solar Assets, the applicable amount set forth in Column C of Schedule XII hereto.
“Borrowing Base Certificate” shall mean the certificate in the form of Exhibit B-1 attached hereto.
“Borrowing Base Deficiency” shall have the meaning set forth in Section 2.9.
“Breakage Costs” shall mean, with respect to a failure by the Borrower, for any reason resulting from Borrower’s failure (but excluding any failures to borrow resulting from a Lender default under this Agreement), to borrow any proposed Advance on the date specified in the applicable Notice of Borrowing (including without limitation, as a result of the Borrower’s failure to satisfy any conditions precedent to such borrowing) after providing such Notice of Borrowing, the resulting loss, cost, expense or liability incurred by reason of the liquidation or reemployment of deposits, actually sustained by the Administrative Agent, any Lender or any Funding Agent; provided, however, that the Administrative Agent, such Lender or such Funding Agent shall use commercially reasonable efforts to minimize such loss or expense and shall have delivered to the Borrower a certificate as to the amount of such loss or expense, which certificate shall be conclusive in the absence of manifest error. For the avoidance of doubt, if a Lender does not make an advance and the Borrower has met all conditions precedent required under Article III or Lender has breached this Agreement, then any Breakage Costs shall be borne by Lender.
“Business Day” shall mean any day other than Saturday, Sunday and any other day on which commercial banks in New York, New York, Minnesota or California are authorized or required by law to close.
A-10
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Buyout Class B Lender” shall have the meaning set forth in Section 6.3 hereof.
“Calculation Date” shall mean with respect to a Payment Date, the close of business on the last day of the related Collection Period.
“Call Date” shall mean, with respect to a Purchase Option, the earliest date on which such Purchase Option may be exercised.
“Capital Stock” shall mean, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting) of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) or any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, but in no event will Capital Stock include any debt securities convertible or exchangeable into equity unless and until actually converted or exchanged.
“Carrying Cost” shall mean, as of any date of determination, the sum of (i) the weighted average Swap Rate as of such date of determination, (ii) the weighted average Class A Usage Fee Margin and Class B Usage Fee Margin as of such date of determination, (iii) the Step-Up Rate and (iv) 0.10%.
“Change in Law” shall mean (i) the adoption or taking effect of any Law after the date of this Agreement, (ii) any change in Law or in the administration, interpretation, application or implementation thereof by any Governmental Authority after the date of this Agreement, (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority after the date of this Agreement or (iv) compliance by any Affected Party, by any lending office of such Affected Party or by such Affected Party’s holding company, if any, with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided, that notwithstanding anything herein to the contrary, (a) the Dodd-Frank Act, (b) Basel III and (c) all requests, rules, guidelines and directives under either of the Dodd-Frank Act or Basel III or issued in connection therewith shall be deemed to be a “Change in Law”, regardless of the date implemented, enacted, adopted or issued.
“Change of Control” shall mean, the occurrence of one or more of the following events:
(i)any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of SEI or Parent to any Person or group of related Persons for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (a “Group”), other than, in each case, any such sale, lease, exchange or transfer to a Person or Group that is, prior to such, lease, exchange or transfer, an Affiliate of SEI and is controlled (as that term is used in the definition of Affiliate) by SEI;
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(ii)the approval by the holders of Capital Stock of SEI, Parent, Intermediate Holdco, Sunnova Inventory Pledgor, TEP Inventory, a Seller, TEP Resources, the Borrower or any Subsidiary of the Borrower of any plan or proposal for the liquidation or dissolution of such Person;
(iii)any Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of SEI, other than any Person that is a Permitted Investor or Group that is controlled by a Permitted Investor provided that any transfers or issuances of equity of SEI on or after the Original Closing Date to, among or between a Permitted Investor or any Affiliate thereof, shall not constitute a “Change of Control” for purposes of this clause (iii);
(iv)SEI shall cease to directly own all of the Capital Stock in Parent;
(v)Parent shall cease to directly own all of the Capital Stock in Intermediate Holdco;
(vi)Intermediate Holdco shall cease to directly own all of the Capital Stock in Sunnova Inventory Holdings;
(vii)Sunnova Inventory Holdings shall cease to directly own all of the Capital Stock in Sunnova Inventory Pledgor;
(viii)Sunnova Inventory Pledgor shall cease to directly own all of the Capital Stock in TEP Inventory;
(ix)TEP Inventory shall cease to directly own all of the Capital Stock in SAP Seller;
(x)SAP Seller shall cease to directly own all of the Capital Stock in TEP Resources or Financing Fund Seller;
(xi)TEP Resources shall cease to directly own all of the Capital Stock in the Borrower; or
(xii)the Borrower shall cease to own all of the Capital Stock in a Managing Member or SAP other than in connection with a Takeout Transaction pursuant to which 100% of the outstanding Capital Stock of such Managing Member or SAP is sold.
“Class A Additional Interest Distribution Amount” shall mean, with respect to the Class A Advances on any date of determination, an amount equal to the sum of (i) the product of (a) the daily average outstanding principal balance of all Class A Advances during the related period
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(including any related Interest Accrual Period), (b) the actual number of days in such period (including any related Interest Accrual Period), divided by 360, 365 or 366, as applicable, and (c) the Step-Up Rate and (ii) any unpaid Class A Additional Interest Distribution Amounts from prior Payment Dates plus, to the extent permitted by law, interest thereon at the Step-Up Rate for the related Interest Accrual Period. For the avoidance of doubt, the Class A Additional Interest Distribution Amount shall not constitute “Confidential Information.”
“Class A Advance” shall have the meaning set forth in Section 2.2.
“Class A Aggregate Commitment” shall mean, on any date of determination, the sum of the Class A Commitments then in effect. The Class A Aggregate Commitment as of the Amendment and Restatement Date shall be equal to $[***]. For the avoidance of doubt, any Class A Advance approved or funded pursuant to Section 2.18 herein shall be deemed to increase the Commitment of the Non-Conduit Lender approving such Class A Advance.
“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) the applicable amount set forth in Column D of Schedule XII hereto.
“Class A Borrowing Base Deficiency” shall have the meaning set forth in Section 2.9.
“Class A Commitment” shall mean the obligation of a Non-Conduit Lender to fund a Class A Advance in accordance with the terms hereof, as set forth on Exhibit E attached hereto.
“Class A Fundamental Amendment” shall mean any amendment, modification, waiver or supplement of or to this Agreement or any other Transaction Document that would (a) reduce the amount, timing or priority of any payment of principal, interest, fees or other amounts due to the Class A Lenders, or modify or alter any provision relating to pro rata treatment of the Class A Advances, in each case, including amending or modifying any of the definitions related to such terms; (b) amend or modify the definition of the terms “Class A Borrowing Base”, “Class A Borrowing Base Deficiency”, “Class A Commitment”, “Class A Fundamental Amendment,” “Class A Maximum Facility Amount”, “Class A Unused Portion of the Commitments” or, in each case, any defined terms within such definitions; or (c) change the provisions of this Agreement relating to the application of collections on, or the proceeds of the sale of, all or any portion of the Collateral to reduce payment of the Class A Advances.
“Class A Funding Agent” shall mean a Person appointed as a Class A Funding Agent for a Class A Lender Group pursuant to Section 7.12.
“Class A Indemnified Liabilities” shall have the meaning set forth in Section 6.3 hereof.
“Class A Interest Distribution Amount” shall mean, with respect to the Class A Advances on any date of determination, an amount equal to the sum of (i) the product of (a) the daily average outstanding principal balance of all Class A Advances during the related period
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(including any related Interest Accrual Period), (b) the actual number of days in such period (including any related Interest Accrual Period), divided by 360, 365 or 366, as applicable, and (c) the Class A Usage Fee Rate and (ii) any unpaid Class A Interest Distribution Amounts from prior Payment Dates plus, to the extent permitted by law, interest thereon at the Class A Usage Fee Rate for the related Interest Accrual Period. For the avoidance of doubt, the Class A Interest Distribution Amount shall not constitute “Confidential Information.”
“Class A Lender” shall mean a Lender that has funded a Class A Advance.
“Class A Lender Group” shall mean with respect to any Class A Advances, any group consisting of related Conduit Lenders, Non-Conduit Lenders and Funding Agents.
“Class A Lender Group Percentage” shall mean, for any Class A Lender Group, the percentage equivalent of a fraction (expressed out to five decimal places), the numerator of which is, with respect to each Class A Lender Group, the Class A Commitment of all Non-Conduit Lenders in such Class A Lender Group, and the denominator of which is the Class A Aggregate Commitment.
“Class A Loan Note” shall mean each Class A Loan Note of the Borrower in the form of Exhibit D-1 attached hereto, payable to a Class A Funding Agent for the benefit of the Class A Lenders in such Class A Funding Agent’s Class A Lender Group, in the aggregate face amount of up to such Class A Lender Group’s portion of the Class A Maximum Facility Amount, evidencing the aggregate indebtedness of the Borrower to the Class A Lenders in such Funding Agent’s Class A Lender Group, as the same be amended, restated, supplemented or otherwise modified from time to time.
“Class A Maximum Facility Amount” shall mean $[***].
“Class A Unused Portion of the Commitments” shall mean, with respect to the Class A Lenders on any day, the excess of (x) the Class A Aggregate Commitment as of such day as of 5:00 P.M. (New York City time) on such day, over (y) the sum of the aggregate outstanding principal balance of the Class A Advances as of 5:00 P.M. (New York City time) on such day.
“Class A Usage Fee Rate” shall mean the greater of (x) zero and (y) sum of (i) the Cost of Funds and (ii) the Class A Usage Fee Margin.
“Class A Usage Fee Margin” shall have the meaning set forth in the Fee Letter referred to in (a) clause (i) of the definition thereof with respect to the CS Lender Group and (b) clause (ii) of the definition thereof with respect to SVB, as a Class A Lender.
“Class B Additional Interest Distribution Amount” shall mean, with respect to the Class B Advances on any date of determination, an amount equal to the sum of (i) the product of (a) the daily average outstanding principal balance of all Class B Advances during the related period (including any related Interest Accrual Period), (b) the actual number of days in such period
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(including any related Interest Accrual Period), divided by 360, 365 or 366, as applicable, and (c) the Step-Up Rate and (ii) any unpaid Class B Additional Interest Distribution Amounts from prior Payment Dates plus, to the extent permitted by law, interest thereon at the Step-Up Rate for the related Interest Accrual Period. For the avoidance of doubt, the Class B Additional Interest Distribution Amount shall not constitute “Confidential Information.”
“Class B Advance” shall mean, individually or collectively as the context may require, the Class B-I Advances and the Class B-II Advances.
“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) the applicable amount set forth on Column E of Schedule XII hereto.
“Class B Aggregate Borrowing Base Deficiency” shall have the meaning set forth in Section 2.9.
“Class B Aggregate Commitment” shall mean, on any date of determination, the sum of the Class B-I Commitments and the Class B-II Commitments then in effect.
“Class B Buyout Amount” shall have the meaning set forth in Section 6.3 hereof.
“Class B Buyout Notice” shall have the meaning set forth in Section 6.3 hereof.
“Class B Buyout Option” shall have the meaning set forth in Section 6.3 hereof.
“Class B Buyout Option Exercise Date” shall have the meaning set forth in Section 6.3 hereof.
“Class B Collateral Exercise Deadline” shall have the meaning set forth in Section 6.4.
“Class B Collateral Exercise Notice” shall have the meaning set forth in Section 6.4.
“Class B Collateral Purchase Amount” shall have the meaning set forth in Section 6.4.
“Class B Collateral Purchase Date” shall have the meaning set forth in Section 6.4.
“Class B Collateral Purchase Right” shall have the meaning set forth in Section 6.4.
“Class B Commitment” shall mean, individually or collectively as the context may require, the Class B-I Commitments and the Class B-II Commitments.
“Class B Funding Agent” shall mean, individually or collectively as the context may require, the Class B-I Funding Agents and the Class B-II Funding Agents.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Class B Interest Distribution Amount” shall mean, with respect to the Class B Advances on any date of determination, an amount equal to the sum of (i) the product of (a) the daily average outstanding principal balance of all Class B Advances during the related period (including any related Interest Accrual Period), (b) the actual number of days in such period (including any related Interest Accrual Period), divided by 360, 365 or 366, as applicable, and (c) the Class B Usage Fee Rate and (ii) any unpaid Class B Interest Distribution Amounts from prior Payment Dates plus, to the extent permitted by law, interest thereon at the Class B Usage Fee Rate for the related Interest Accrual Period. For the avoidance of doubt, the Class B Interest Distribution Amount shall not constitute “Confidential Information.”
“Class B Lender” shall mean, individually or collectively as the context may require, the Class B-I Lenders and the Class B-II Lenders.
“Class B Lender Group” shall mean, individually or collectively as the context may require, the Class B-I Lender Group and the Class B-II Lender Group.
“Class B Lender Group Percentage” shall mean, for any Class B Lender Group, the percentage equivalent of a fraction (expressed out to five decimal places), the numerator of which is, with respect to each Class B Lender Group, the outstanding principal balance of the Class B Advances made by the Non-Conduit Lenders in such Class B Lender Group, and the denominator of which is the outstanding principal balance of all Class B Advances.
“Class B Loan Note” shall mean each Class B Loan Note of the Borrower in the form of Exhibit D-2 attached hereto, payable to a Class B Funding Agent for the benefit of the Class B Lenders in such Class B Funding Agent’s Class B Lender Group, in the aggregate face amount of up to such Class B Lender Group’s portion of the Class B Maximum Facility Amount, evidencing the aggregate indebtedness of the Borrower to the Class B Lenders in such Class B Funding Agent’s Class B Lender Group, as the same be amended, restated, supplemented or otherwise modified from time to time.
“Class B Maximum Facility Amount” shall mean the sum of the Class B-I Maximum Facility Amount and the Class B-II Maximum Facility Amount.
“Class B Purchase Rights” shall have the meaning set forth in Section 6.3 hereof.
“Class B Purchase Right Termination Date” shall have the meaning set forth in Section 6.3 hereof.
“Class B Unused Portion of the Commitments” shall mean, with respect to the Class B Lenders on any day, the excess of (x) the Class B Aggregate Commitment as of such day as of 5:00 P.M. (New York City time) on such day, over (y) the sum of the aggregate outstanding principal balance of the Class B Advances as of 5:00 P.M. (New York City time) on such day.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Class B Usage Fee Margin” shall have the meaning set forth in the Fee Letter referred to in clause (i) of the definition thereof.
“Class B Usage Fee Rate” shall mean the sum of (i) the Cost of Funds and (ii) the Class B Usage Fee Margin.
“Class B-I Advance” shall have the meaning set forth in Section 2.2.
“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 the Amendment and Restatement Date shall be equal to $[***]. For the avoidance of doubt, any Class B-I Advance approved or funded pursuant to Section 2.18 herein shall be deemed to increase the Commitment of the Non-Conduit Lender approving such Class B-I Advance.
“Class B-I Borrowing Base” shall mean, as of any date of determination, the lesser of (i) the Class B Aggregate Borrowing Base as of such date (ii) the Class B-I Aggregate Commitment as of such date.
“Class B-I Borrowing Base Deficiency” shall have the meaning set forth in Section 2.9.
“Class B-I Commitment” shall mean the obligation of a Non-Conduit Lender to fund a Class B-I Advance in accordance with the terms hereof, as set forth on Exhibit E attached hereto.
“Class B-I Funding Agent” shall mean a Person appointed as a Class B-I Funding Agent for a Class B-I Lender Group pursuant to Section 7.12.
“Class B-I Lender” shall mean a Lender that has funded a Class B-I Advance.
“Class B-I Lender Group” shall mean with respect to any Class B-I Advances, any group consisting of related Conduit Lenders, Non-Conduit Lenders and Funding Agents.
“Class B-I Lender Group Percentage” shall mean, for any Class B-I Lender Group, the percentage equivalent of a fraction (expressed out to five decimal places), the numerator of which is, with respect to each Class B-I Lender Group, the Class B-I Commitment of all Non-Conduit Lenders in such Class B-I Lender Group, and the denominator of which is the Class B-I Aggregate Commitment.
“Class B-I Maximum Facility Amount” shall mean $[***].
“Class B-II Advance” shall have the meaning set forth in Section 2.2.
“Class B-II Aggregate Commitment” shall mean, on any date of determination, the sum of the Class B-II Commitments then in effect. The Class B-II Aggregate Commitment as of the Amendment and Restatement Date shall be equal to $[***]. For the avoidance of doubt, any
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Class B-II Advance approved or funded pursuant to Section 2.18 herein shall be deemed to increase the Commitment of the Non-Conduit Lender approving such Class B-II Advance.
“Class B-II Borrowing Base” shall mean, as of any date of determination, the lesser of (i) the excess, if any, of (a) the Class B Aggregate Borrowing Base as of such date over (b) the Class B-I Aggregate Commitment as of such date, and (ii) the Class B-II Aggregate Commitment as of such date.
“Class B-II Borrowing Base Deficiency” shall have the meaning set forth in Section 2.9.
“Class B-II Commitment” shall mean the obligation of a Non-Conduit Lender to fund a Class B-II Advance in accordance with the terms hereof, as set forth on Exhibit E attached hereto.
“Class B-II Funding Agent” shall mean a Person appointed as a Class B-II Funding Agent for a Class B-II Lender Group pursuant to Section 7.12.
“Class B-II Lender” shall mean a Lender that has funded a Class B-II Advance.
“Class B-II Lender Group” shall mean with respect to any Class B-II Advances, any group consisting of related Conduit Lenders, Non-Conduit Lenders and Funding Agents.
“Class B-II Lender Group Percentage” shall mean, for any Class B-II Lender Group, the percentage equivalent of a fraction (expressed out to five decimal places), the numerator of which is, with respect to each Class B-II Lender Group, the Class B-II Commitment of all Non-Conduit Lenders in such Class B-I Lender Group, and the denominator of which is the Class B-II Aggregate Commitment.
“Class B-II Maximum Facility Amount” shall mean $[***].
“Closing Date Verification Agent Certification” shall have the meaning set forth in Section 4(c) of the Verification Agent Agreement.
“Collateral” shall mean the Pledged Collateral (as defined in the Pledge Agreement) and have the meaning set forth in the Security Agreement, as applicable.
“Collateral Sale Notice” shall have the meaning set forth in Section 6.4.
“Collection Account” shall have the meaning set forth in Section 8.2(A)(i).
“Collection Period” shall mean, with respect to a Payment Date, the three calendar months preceding the month in which such Payment Date occurs; provided that with respect to the first Payment Date, the Collection Period will be the period from and including the Original Closing Date to the end of the calendar quarter preceding such Payment Date.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Collections” shall mean (without duplication) all distributions and payments received in respect of the SAP Solar Assets, Solar Asset Owner Member Interests, the Hedged SREC Solar Assets and other cash proceeds thereof, except for Service Incentives, Excess SREC Proceeds, and SREC Direct Sale Proceeds. Without limiting the foregoing, “Collections” shall include any amounts payable to the Borrower under any Hedge Agreement entered into in connection with this Agreement or in connection with the disposition of any Collateral.
“Commercial Paper” shall mean commercial paper, money market notes and other promissory notes and senior indebtedness issued by or on behalf of a Conduit Lender.
“Commitment” shall mean, individually or collectively, as the context may require, the Class A Commitments and the Class B Commitments, as applicable.
“Commitment Termination Date” shall mean the earliest to occur of (i) the Scheduled Commitment Termination Date and (ii) the date of any voluntary termination of the facility by the Borrower.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Conduit Lender” shall mean the CS Conduit Lender and each financial institution identified as such that may become a party hereto.
“Confidential Information” shall have the meaning set forth in Section 10.16(A).
“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Contribution Agreement” shall mean, collectively, (a) the Master SAP Contribution Agreement, (b) the TEP OpCo Contribution Agreement, and (c) the Financing Fund Contribution Agreements.
“Conveyed Property” shall have the meaning set forth in the Sale and Contribution Agreement.
“Corporate Trust Office” shall mean, with respect to the Paying Agent, the corporate trust office thereof at which at any particular time its corporate trust business with respect to the Transaction Documents is conducted, which office at the date of the execution of this instrument is located at 600 S. 4th Street, MAC N9300-061, Minneapolis, Minnesota 55415, Attention: Corporate Trust Services – Asset-Backed Administration, or at such other address as such party may designate from time to time by notice to the other parties to this Agreement.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Cost of Funds” shall mean, (i) with respect to the Class A Advances for any Interest Accrual Period, interest accrued on such Class A Advances during such Interest Accrual Period at the Benchmark for such Interest Accrual Period or, if the then-current Benchmark is not available, the Base Rate and (ii) with respect to the Class B Advances for any Interest Accrual Period, interest accrued on such Class B Advances during such Interest Accrual Period at the Benchmark for such Interest Accrual Period or, if the then-current Benchmark is not available, the Base Rate.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” shall have the meaning set forth in Section 10.24 hereof.
“Credit Card Receivable” shall mean Host Customer Payments that are made via credit card.
“CS Conduit Lender” shall mean Alpine Securitization Ltd.
“CS Lender Group” shall mean a group consisting of the CS Conduit Lender, the CS Non-Conduit Lender and CSNY, as a Funding Agent for such Lenders.
“CS Non-Conduit Lender” shall mean Credit Suisse AG, Cayman Islands Branch.
“CSNY” shall have the meaning set forth in the introductory paragraph hereof.
“Customer Collection Policy” shall mean the initial Manager’s internal collection policy as described in each Management Agreement; provided that from and after the appointment of a Successor Manager pursuant to such Management Agreement, the “Customer Collection Policy” shall mean the collection policy of such Successor Manager for servicing assets comparable to the Borrower Solar Assets (as defined in such Management Agreement).
“Customer Warranty Agreement” shall mean any separate warranty agreement provided by Parent to a Host Customer (which may be an exhibit to a Solar Service Agreement) in connection with the performance and installation of the related PV System (which may include a Performance Guaranty).
“Cut-off Date” shall mean, (i) for each Solar Asset acquired on the Original Closing Date, the date that is three (3) Business Days prior to the Original Closing Date, and (ii) for any Additional Solar Asset, the date specified as such in the related Schedule of Solar Assets.
“Daily Simple SOFR” means, for any day, SOFR, with conventions (including, without limitation, a lookback) established by the Administrative Agent in accordance with the
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent determines that any such convention is not administratively, operationally, or technically feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Dealer” shall mean Homebuilders, Approved Installers and Approved Vendors.
“Default Level” shall mean, for any Collection Period, the quotient (expressed as a percentage) of (i) the excess (if any) of (a) the sum of the Discounted Solar Asset Balances of all Eligible Solar Assets that became Defaulted Solar Assets during such Collection Period and that did not repay all past due portions of a contractual payment due under the related Solar Service Agreement by the end of such Collection Period, over (b) (x) for the purposes of clause (v) of the definition of Amortization Event, the sum of the Discounted Solar Asset Balances of all Eligible Solar Assets that became Defaulted Solar Assets during the three immediately preceding Collection Periods and that repaid all past due portions of a contractual payment due under the related Solar Service Agreement during the Collection Period in which the “Default Level” is being calculated, or (y) otherwise, zero, divided by (ii) the aggregate Discounted Solar Asset Balances for the Managing Member Interests (other than any amounts attributable to New Construction Solar Asset (Non-Identified Customer)), the SAP Solar Assets and any Hedged SREC Solar Assets on the first day of such Collection Period. For the avoidance of doubt, the receipt of any Liquidated Damages Amounts by the Borrower shall not constitute payments of past due amounts pursuant to clause (i).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulted Solar Asset” shall mean a Solar Asset for which the related Host Customer is more than 120 days past due on any portion of a contractual payment due under the related Solar Service Agreement; provided, however, once such amounts are paid in full by the Host Customer such Solar Asset shall no longer be a “Defaulted Solar Asset”. For the avoidance of doubt, any past due amounts owed by an original Host Customer after reassignment to or execution of a replacement Solar Service Agreement with a new Host Customer shall not cause the Solar Asset to be deemed to be a Defaulted Solar Asset.
“Defaulting Lender” shall have the meaning set forth in Section 3.3(B).
“Defective Solar Asset” shall mean a Solar Asset with respect to which it is determined by the Administrative Agent (acting at the written direction of the Majority Lenders, such direction not to be unreasonably withheld, condition or delayed) or the Facility Administrator, at any time, that the Borrower breached as of the Transfer Date for such Solar Asset the representation in Section 4.1(U), unless such breach has been waived, in writing, by the Administrative Agent, acting at the direction of the Majority Lenders.
“Delayed Amount” shall have the meaning set forth in Section 2.4(E).
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Delayed Funding Date” shall have the meaning set forth in Section 2.4(E).
“Delayed Funding Lender” shall have the meaning set forth in Section 2.4(E).
“Delayed Funding Notice” shall have the meaning set forth in Section 2.4(E).
“Delayed Funding Reimbursement Amount” shall have the meaning set forth in Section 2.4(G).
“Delinquent Solar Asset” shall mean a Solar Asset for which the related Host Customer is more than 90 days past due on any portion of a contractual payment due under the related Solar Service Agreement; provided, however, once such amounts are paid in full by the Host Customer such Solar Asset shall no longer be a “Delinquent Solar Asset”.
“Discount Rate” shall mean, as of any date of determination, the greater of (i) 6.00% per annum and (ii) the Carrying Cost, in each case, determined as of such date of determination.
“Discounted Solar Asset Balance” shall mean, as of any date of determination (x)(i) with respect to the Managing Member Interests or the SAP Solar Assets (other than a Substantial Stage Solar Asset), the present value of the remaining and unpaid stream of Net Cash Flow on or after such date of determination, based upon discounting such Net Cash Flow to such date of determination at an annual rate equal to the Discount Rate, (ii) with respect to a Hedged SREC Solar Asset, the present value of the remaining and unpaid stream of Scheduled Hedged SREC Payments for such Hedged SREC Solar Asset on or after such date of determination, based upon discounting such Scheduled Hedged SREC Payments to such date of determination at an annual rate equal to the Discount Rate and (iii) with respect to a Substantial Stage Solar Asset, the amount actually disbursed to Dealers for services rendered in respect of such Solar Asset; provided, however, that in the case of either (i) or (ii), any Transferable Solar Asset will be deemed to have a Discounted Solar Asset Balance equal to $[***]; provided, further that any New Construction Solar Asset that (a) is transferred to a Financing Fund during a Placed in Service Failure Period and (b) is either a Substantial Stage Solar Asset or a Final Stage Solar Asset will be deemed to have a Discounted Solar Asset Balance equal to $[***] during the continuation of such Placed in Service Failure Period, and (y) for purposes of determining the Default Level respect to a Host Customer Solar Asset, the present value of the remaining and unpaid stream of Net Scheduled Payments for such Host Customer Solar Asset for the period beginning on such date of determination and ending on the date of the last Net Scheduled Payment for such Host Customer Solar Asset shall be based upon discounting such Net Scheduled Payments to such date of determination at an annual rate equal to the Discount Rate.
“Disqualified Entity” shall have the meaning set forth in the Tax Equity Financing Documents.
“Disqualified Lender” shall mean any financial institution or other Persons set forth on Exhibit K hereto, including any known Affiliate thereof clearly identifiable on the basis of its
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
name (in each case, other than any Affiliate that is primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which such financial institution or other Person does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity). The Borrower may from time to time update Exhibit K to (x) include identified Affiliates of financial institutions or other Persons identified pursuant to the preceding sentence; provided that such updates shall not apply retroactively to disqualify parties that have previously acquired an assignment or participation interest in the Commitment or (y) remove one or more Persons as Disqualified Lenders (in which case such removed Person or Persons shall no longer constitute Disqualified Lenders).
“Distributable Collections” shall have the meaning set forth in Section 2.7(B).
“Dodd-Frank Act” shall mean the Dodd-Frank Wall Street Reform and Consumer Protection Act.
“Dollar,” “Dollars,” “U.S. Dollars” and the symbol “$” shall mean the lawful currency of the United States.
“Early Opt-In Election” means, if the then current Benchmark is the Adjusted LIBOR Rate, the occurrence of:
(12)notification by the Administrative Agent to each of the other parties hereto that at least five currently outstanding U.S. dollar denominated asset-backed syndicated credit facilities substantially similar hereto at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review); and
(13)the joint election by the Administrative Agent and the Borrower to trigger a fallback from the Adjusted LIBOR Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.
“Early Opt-In Election Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of an Early Opt-In Election.
“East Region” shall mean the states of New York, New Jersey, Massachusetts, Connecticut, Pennsylvania, Rhode Island, Maryland, Florida, and South Carolina and any other territory of the United States consented to in writing by the Administrative Agent.
“East Region Substantial Stage Date Solar Asset Reserve Amount” shall mean, as of any date of determination, the product of (i) 9/3 times (ii) the sum of the Class A Interest Distribution Amount, the Class B Interest Distribution Amount, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amount, if any, due and payable on the
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
immediately succeeding Payment Date times (iii) the ratio of (x) the aggregate principal balance of all Advances related to Substantial Stage Solar Assets that are Retrofit Solar Assets and the Host Customer of which is located in the East Region as of such date divided by (y) the Aggregate Outstanding Advances as of such date; provided, however, that solely for the purpose of determining the East Region Substantial Stage Date Solar Asset Reserve Amount as of the Original Closing Date, the East Region Substantial Stage Date Solar Asset Reserve Amount shall be an amount reasonably calculated by the Administrative Agent and provided to the Borrower prior to the Original Closing Date.
“Effective Advance Rate” shall mean, as of any date of determination, the ratio of the Aggregate Outstanding Advances to the Aggregate Discounted Solar Asset Balance.
“Eligible Facility Administrator” shall mean Sunnova Management or any other operating entity which, at the time of its appointment as Facility Administrator, (i) is legally qualified and has the capacity to service the Solar Assets or provide administrative services to the Borrower, and (ii) prior to such appointment, is approved in writing by the Administrative Agent as having demonstrated the ability to professionally and competently service the Collateral and/or a portfolio of assets of a nature similar to the Eligible Solar Assets in accordance with high standards of skill and care.
“Eligible Hedged SREC Counterparty” shall mean (i) any Person rated, or guaranteed (such guaranty to be acceptable to the Administrative Agent in its sole discretion) by an entity rated, investment grade by any of Moody’s, S&P, Fitch, DBRS, Inc. or Kroll Bond Rating Agency, Inc. and (ii) such other Persons that are agreed to in writing by the Administrative Agent to be Eligible Hedged SREC Counterparties.
“Eligible Institution” shall mean a commercial bank or trust company having capital and surplus of not less than $[***] in the case of U.S. banks and $[***] (or the U.S. dollar equivalent as of the date of determination) in the case of foreign banks; provided that a commercial bank which does not satisfy the requirements set forth above shall nonetheless be deemed to be an Eligible Institution for purposes of holding any deposit account or any other account so long as such commercial bank is a federally or state chartered depository institution subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. § 9.10(b) and such account is maintained as a segregated trust account with the corporate trust department of such bank.
“Eligible Letter of Credit Bank” means a financial institution (a) organized in the United States, (b) having total assets in excess of $[***] and with a long term rating of at least “[***]” by S&P or “[***]” by Moody’s and a short term rating of at least “[***]” by S&P or “[***]” by Moody’s, and (c) approved by the Administrative Agent acting on the instructions of the Majority Lenders (such approval not to be unreasonably delayed withheld or delayed).
“Eligible Solar Asset” shall mean, on any date of determination, a Solar Asset:
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(xiii)which meets all of the criteria specified in Schedule I;
(xiv)for which the legal title to the Host Customer Payments, PBI Payments and Energy Storage System Incentives related thereto is vested solely in a Financing Fund or SAP, and the Hedged SREC Payments related thereto is vested solely in the Borrower; and
(xv)was acquired by a Financing Fund or SAP pursuant to the related SAP NTP Financing Documents, Tax Equity Financing Documents or the SAP Contribution Agreement, as applicable, and has not been sold or encumbered by the related Financing Fund or SAP except as permitted hereunder (with respect to Permitted Liens and Permitted Equity Liens) and under the applicable SAP Financing Documents, SAP NTP Financing Documents or Tax Equity Financing Documents.
“Energy Storage System” shall mean an energy storage system to be used in connection with a PV System, including all equipment related thereto (including any battery management system, wiring, conduits and any replacement or additional parts included from time to time).
“Energy Storage System Incentives” shall mean payments paid by a state or local Governmental Authority, based in whole or in part on the size of an Energy Storage System, made as an inducement to the owner thereof.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the Original Closing Date and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean each Person (as defined in Section 3(9) of ERISA), which together with the Borrower, would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code or Section 4001(a)(14) or 4001(b)(1) of ERISA.
“ERISA Event” shall mean (i) that a Reportable Event has occurred with respect to any Single-Employer Plan; (ii) the institution of any steps by the Borrower or any ERISA Affiliate, the Pension Benefit Guaranty Corporation or any other Person to terminate any Single-Employer Plan or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Single-Employer Plan; (iii) the institution of any steps by the Borrower or any ERISA Affiliate to withdraw from any Multi-Employer Plan or Multiple Employer Plan or written notification of the Borrower or any ERISA Affiliate concerning the imposition of withdrawal liability; (iv) a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code in connection with any Plan; (v) the cessation of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (vi) with respect to a Single-Employer Plan, a failure to satisfy the minimum
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
funding standard under Section 412 of the Internal Revenue Code or Section 302 of ERISA, whether or not waived; (vii) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to a Single-Employer Plan; (viii) a determination that a Single-Employer Plan is or is expected to be in “at-risk” status (within the meaning of Section 430(i)(4) of the Internal Revenue Code or Section 303(i)(4) of ERISA); (ix) the insolvency of or commencement of reorganization proceeding with respect to a Multi-Employer Plan or written notification that a Multi-Employer Plan is in “endangered” or “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA); or (x) the taking of any action by, or the threatening of the taking of any action by, the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation with respect to any of the foregoing.
“Estimated Class B Buyout Amount” shall have the meaning set forth in Section 6.3 hereof.
“Event of Default” shall mean any of the Events of Default described in Section 6.1.
“Event of Loss” shall mean the occurrence of an event with respect to a PV System if such PV System is damaged or destroyed by fire, theft or other casualty and such PV System has become inoperable because of such event.
“Excess Concentration Amount” shall mean the dollar amount specified as such on Schedule III of a Borrowing Base Certificate; provided, that commencing on the Original Closing Date or the effective date of a Qualifying Takeout Transaction and ending ninety (90) days thereafter, lines 34, 37 and 40 thereof shall not be included in the calculation of the Excess Concentration Amount.
“Excess SRECs” means any SREC of a particular jurisdiction and vintage generated in excess of the amount of SRECs of such jurisdiction and such vintage required to satisfy the aggregate annual SREC delivery requirements of such jurisdiction and such vintage under all Hedged SREC Agreements.
“Excess SREC Proceeds” means all cash proceeds actually received by the Borrower from the sale of Excess SRECs.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (a) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan pursuant to a Law in effect on the date on which (a) such Lender acquires such interest in
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
the Loan or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 2.17(G) and (iv) any U.S. federal withholding Taxes imposed under FATCA.
“Expected Amortization Profile” shall mean the expected amortization schedule based on the sum (without duplication of clauses (ii) and (iii)) of (i) any outstanding Advance, (ii) any Advance that has been requested pursuant to Section 2.4 and (iii) prior to June 30, 2022, and subject to the Borrower’s ability to request an Advance pursuant to Section 2.4, an amount equal to the Borrowing Base as determined pursuant to the most recently delivered Borrowing Base Certificate as required hereunder minus any outstanding Advances (as determined by the Administrative Agent in its sole discretion), as the context may require, as of the applicable date of determination as determined by the Administrative Agent using its proprietary model and in consultation with the Borrower.
“Expense Claim” shall have the meaning set forth in Section 10.21.
“Facility” shall mean this Agreement together with all other Transaction Documents.
“Facility Administration Agreement” shall mean the Facility Administration Agreement, dated as of the Original Closing Date, by and among the Borrower, the Facility Administrator and the Administrative Agent, as amended, restated, modified and/or supplemented from time to time in accordance with its terms.
“Facility Administrator” shall have the meaning set forth in the introductory paragraph hereof.
“Facility Administrator Fee” shall have the meaning set forth in Section 2.1(b) of the Facility Administration Agreement.
“Facility Administrator Report” shall have the meaning set forth in the Facility Administration Agreement.
“Facility Administrator Termination Event” shall have the meaning set forth in Section 7.1 of the Facility Administration Agreement.
“Facility Maturity Date” shall mean November 21, 2023, unless otherwise extended pursuant to and in accordance with Section 2.16.
“FATCA” shall mean Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any intergovernmental agreements between the United States and another country which modify the provisions of the foregoing.
“FATCA Withholding Tax” means any withholding or deduction required pursuant to FATCA.
“Fee Letters” shall mean (i) that certain Eighth Amended and Restated Fee Letter, dated as of October 18, 2021, entered into by and among the Administrative Agent, the Lenders party thereto and the Borrower, as the same be amended, restated, supplemented or otherwise modified from time to time, (ii) that certain Fee Letter, dated as of October 18, 2021, entered into by and among the Administrative Agent, SVB, as a Class A Lender, and the Borrower, as the same be amended, restated, supplemented or otherwise modified from time to time, and (iii) any other fee letter between the Borrower and any other Lender or other Person, as the same be amended, restated, supplemented or otherwise modified from time to time.
“Final Auction” shall have the meaning set forth in Section 6.4.
“Final Stage Solar Asset” shall mean a Host Customer Solar Asset for which (i) with respect to a Retrofit Solar Asset, the related PV System is fully installed but has not been Placed in Service, and (ii) with respect to a New Construction Solar Asset, the installation of the related Solar Photovoltaic Panel has been completed, but the related PV System has not been Placed in Service. For the avoidance of doubt, a Solar Service Agreement does not need to have been signed in order for a New Construction Solar Asset to constitute a Final Stage Solar Asset.
“Final Stage Solar Asset Reserve Amount” shall mean, as of any date of determination, the product of (i) 5/3 times (ii) the sum of the Class A Interest Distribution Amount, the Class B Interest Distribution Amount, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amount, if any, due and payable on the immediately succeeding Payment Date times (iii) the ratio of (x) the aggregate principal balance of all Advances related to Final Stage Solar Assets that are Retrofit Solar Assets as of such date divided by (y) the Aggregate Outstanding Advances as of such date; provided, however, that solely for the purpose of determining the Final Stage Solar Asset Reserve Amount as of the Original Closing Date, the Final Stage Solar Asset Reserve Amount shall be an amount reasonably calculated by the Administrative Agent and provided to the Borrower prior to the Original Closing Date.
“Financial Covenants” shall have the meaning set forth in the Parent Guaranty.
“Financing Fund” shall mean, collectively, each entity set forth under the heading “Financing Funds” on Schedule VIII hereto.
“Financing Fund Contribution Agreements” shall mean, collectively, each document set forth under the heading “Contribution Agreements” on Schedule VIII hereto.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Financing Fund Contributions” shall mean any capital contributions from Parent or its Affiliates to Borrower or a Managing Member for contribution to a Financing Fund.
“Financing Fund LLCA” shall mean, collectively, each document set forth under the heading “Financing Fund LLCAs” on Schedule VIII hereto.
“Financing Fund Seller” shall mean Sunnova TEP Developer, LLC, a Delaware limited liability company.
“First Payment Date Reserve Amount” shall mean, as of any date of determination, the product of (i) 1/3 times (ii) the sum of the Class A Interest Distribution Amount, the Class B Interest Distribution Amount, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amount, if any, due and payable on the immediately succeeding Payment Date times (iii) the ratio of (x) the aggregate principal balance of all Advances related to Solar Assets which have been Placed in Service but have not yet made a payment under the related Solar Service Agreement as of such date divided by (y) the Aggregate Outstanding Advances as of such date.
“Fitch” shall mean Fitch, Inc., or any successor rating agency.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to LIBOR.
“Fundamental Amendment” shall mean any amendment, modification, waiver or supplement of or to this Agreement or any other Transaction Document that would (a) extend the Facility Maturity Date or the Scheduled Commitment Termination Date; (b) (i) change the date fixed for the payment or extend the time for payment of principal of or interest on any Advance or any fee or other amount due hereunder or (ii) add new fees or increase fees payable by the Borrower hereunder or any other Transaction Document; (c) reduce the amount, timing or priority of any payment of principal, interest, fees or other amounts due to the Class B Lenders, or modify or alter any provision relating to pro rata treatment of the Class B Advances, in each case, including amending or modifying any of the definitions related to such terms; (d) modify the rate at which interest accrues or is payable on any Class A Advances or Class B Advances, in each case, amending or modifying any of the definitions related to such terms; (e) release any material portion of the Collateral, except in connection with dispositions permitted hereunder or under any other Transaction Document; (f) amend, modify, waive or supplement any provision of Sections 2.8, 2.9, 3.3, 5.1(A), 5.1(U), 5.2(A), 5.2(B), or 6.1 through 6.4, or the definition of the terms “Aggregate Discounted Solar Asset Balance”, “Amortization Event”, “Amortization Period”, “Availability Period”, “Borrowing Base Deficiency”, “Change of Control”, “Class A Borrowing Base”, “Class A Borrowing Base Deficiency”, “Class B Aggregate Borrowing Base Deficiency”, “Class B Aggregate Commitment”, “Class B Aggregate Borrowing Base”, “Class B Commitment”, “Class B Maximum Facility Amount”, “Class B Unused Portion of the Commitments”, “Class B-I Borrowing Base”, “Class B-I Borrowing Base Deficiency”, Class B-
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
II Borrowing Base”, “Class B-II Borrowing Base Deficiency”, “Collections”, “Commitment Termination Date”, “Effective Advance Rate”, “Eligible Solar Asset”, “Excess Concentration Amount”, “Event of Default”, “Facility Maturity Date”, “Fundamental Amendment”, “Hedge Requirement”, “Hedge Trigger Event”, “Liquidity Reserve Account Required Balance”, “Maturity Date”, “Maximum Facility Amount”, “Supplemental Reserve Account Deposit”, “Takeout Transaction”, or, in each case, any defined terms within such definitions; (h) release any party to any Transaction Document from material obligations under any Transaction Document; (i) change the provisions of this Agreement relating to the application of collections on, or the proceeds of the sale of, all or any portion of the Collateral; (j) impair the right to institute suit for enforcement of the provisions of this Agreement; (k) reduce the percentage of Majority Lenders the consent of which is necessary to (1) approve any amendment to this Agreement or (2) direct the sale or liquidation of the Collateral; (l) permit the creation of any lien or security interest; (m) change the currency required for payments of Obligations owing to any Lender under this Agreement; or (n) waive, limit, reduce or impair any condition precedent required to be satisfied for the making of an Advance.
“Funding Agent” shall mean, individually or collectively as the context may require, each Class A Funding Agent and each Class B Funding Agent, as applicable.
“Funding Date” shall mean any Business Day on which an Advance is made at the request of the Borrower in accordance with provisions of this Agreement and, with respect to any Class B-II Advance, subject to Section 2.4(H) .
“GAAP” shall mean generally accepted accounting principles as are in effect from time to time and applied on a consistent basis (except for changes in application in which the Borrower’s independent certified public accountants and the Administrative Agent reasonably agree) both as to classification of items and amounts.
“Governmental Authority” shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Hedge Agreement” shall mean, collectively, (i) the ISDA Master Agreement, the related Schedule to the ISDA Master Agreement, and the related Confirmation or (ii) a long form confirmation, in each case in form and substance reasonably acceptable to the Administrative Agent.
“Hedge Counterparty” shall mean the initial counterparty under a Hedge Agreement, and any Qualifying Hedge Counterparty to such Hedge Agreement thereafter.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Hedge Requirements” shall mean the requirements of the Borrower to (i) within two (2) Business Days of the Original Closing Date, each Funding Date, each Payment Date, the date of any Takeout Transaction and, prior to June 30, 2022, any other date on which the Borrower delivers a Borrowing Base Certificate to the Administrative Agent, enter into forward-starting interest rate swap agreements with a forward start date no later than the Facility Maturity Date to an aggregate DV01 exposure of within +/- 5.0% of the then present value of such forward-starting interest rate swap agreement according to the aggregate Expected Amortization Profile of the Aggregate Outstanding Advances and, to the extent the expected notional balance of the Aggregate Outstanding Advances is equal to or greater than $5,000,000, with an amortizing notional balance schedule which, after giving effect to such interest rate swap agreement, will cause not greater than 125.0% and not less than 75.0% of the aggregate Expected Amortization Profile to be subject to a fixed interest rate, with each such interest rate swap agreement being entered into at the market fixed versus LIBOR swap rate as at the date of the execution thereof and (ii) upon the election of the Borrower or no later than five (5) Business Days following the occurrence of a Hedge Trigger Event, each Funding Date, each Payment Date, the date of any Takeout Transaction and, prior to June 30, 2022, any other date on which the Borrower delivers a Borrowing Base Certificate to the Administrative Agent thereafter, enter into one or more interest rate swap or cap agreements with a Hedge Counterparty, under which the Borrower will expect to, at all times until the Facility Maturity Date, receive on or about each Payment Date, an amount required to maintain a fixed interest rate or interest rate protection at then current market interest rates on not greater than 110.0% and not less than 90.0% of the Expected Amortization Profile through the Facility Maturity Date (determined after giving effect to Advances and payments made on the applicable Funding Date) (it being understood that an interest rate swap agreement entered into under clause (i) of this definition of “Hedge Requirements” (to the extent the effective date thereof is earlier than the Facility Maturity Date) may be taken into account in determining whether the Borrower satisfies the requirements of this clause (ii)); provided, that, notwithstanding anything to the contrary contained in this Agreement, the Borrower shall be permitted to enter into other types of derivative agreements in order to satisfy the Hedge Requirements subject to the prior written approval of the Administrative Agent in its sole discretion.
“Hedge Trigger Event” shall mean the occurrence of either of the following (i) LIBOR for any Interest Accrual Period is greater than or equal to 2.75% or (ii) the end of the Availability Period.
“Hedged SREC” shall mean any SREC that is subject to a Hedged SREC Agreement.
“Hedged SREC Agreement” shall mean, with respect to a PV System, the agreement evidencing all conditions to the payment of Hedged SREC Payments by the Eligible Hedged SREC Counterparty to the Borrower and the rate and timing of such Hedged SREC Payments.
“Hedged SREC Credit Support Obligations” shall mean that Indebtedness constituting credit support for Hedged SRECs in favor of Eligible Hedged SREC Counterparties in the form of guarantees, letters of credit and similar reimbursement and credit support obligations.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Hedged SREC Payments” shall mean, with respect to a PV System and the related Hedged SREC Agreement, all payments due by the related Eligible Hedged SREC Counterparty to the Borrower under or in respect of such Hedged SREC Agreement.
“Hedged SREC Solar Asset” shall mean (i) a Hedged SREC Agreement and all rights and remedies of the Borrower thereunder, including all Hedged SREC Payments due on and after the related Cut-Off Date and any related security therefor, (ii) the related Hedged SRECs subject to such Hedged SREC Agreement, and (iii) all documentation in the Solar Asset File and other documents held by the Verification Agent related to such Hedged SREC Agreement and related Hedged SRECs.
“Homebuilder” shall mean a homebuilder that has entered into an agreement with Parent (or an Affiliate thereof) and an Approved Installer, pursuant to which the Approved Installer has agreed to install PV Systems on new homes built and sold by such homebuilder.
“Host Customer” shall mean the customer under a Solar Service Agreement.
“Host Customer Payments” shall mean with respect to a PV System and a Solar Service Agreement, all payments due from the related Host Customer under or in respect of such Solar Service Agreement, including any amounts payable by such Host Customer that are attributable to sales, use or property taxes.
“Host Customer Security Deposit” shall mean any security deposit that a Host Customer must provide in accordance with such Host Customer’s Solar Service Agreement or the Facility Administrator’s credit and collections policy.
“Host Customer Solar Asset” shall mean (i) a PV System installed on a residential property (including Single-Family Residential Properties, multi-family homes, clubhouses or apartment buildings), (ii) all related real property rights, Permits and Manufacturer Warranties (in each case, to the extent transferable), (iii) upon execution of the related Solar Service Agreement, all rights and remedies of the lessor/seller under such Solar Service Agreement, including all Host Customer Payments on and after the related Cut-Off Date and any related security therefor (other than Host Customer Security Deposits) and all Energy Storage System Incentives, (iv) all related PBI Solar Assets on and after the related Cut-Off Date, and (v) all documentation in the Solar Asset File and other documents held by the Verification Agent related to such PV System, the Solar Service Agreement and PBI Documents, if any.
“Indebtedness” shall mean as to any Person at any time, any and all indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of: (i) borrowed money; (ii) obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (iii) amounts raised under or liabilities in respect of any note purchase or acceptance credit facility; (iv) reimbursement obligations under any letter of credit, currency swap agreement, interest rate swap, cap, collar or floor agreement or other interest rate
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
management device (other than in connection with this Agreement); (v) obligations of such Person to pay the deferred purchase price of property or services; (vi) obligations of such Person as lessee under leases which have been or should be in accordance with GAAP recorded as capital leases; (vii) any other transaction (including without limitation forward sale or purchase agreements, capitalized leases and conditional sales agreements) having the commercial effect of a borrowing of money entered into by such Person to finance its operations or capital requirements, and whether structured as a borrowing, sale and leaseback or a sale of assets for accounting purposes; (viii) any guaranty or endorsement of, or responsibility for, any Indebtedness of the types described in this definition; (ix) liabilities secured by any Lien on property owned or acquired, whether or not such a liability shall have been assumed (other than any Permitted Liens or Permitted Equity Liens); or (x) unvested pension obligations.
“Indemnified Taxes” shall mean (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Transaction Document and (ii) to the extent not otherwise described in clause (i), Other Taxes.
“Indemnitee Agent Party” shall have the meaning set forth in Section 7.6 hereof.
“Indemnitee Funding Agent Party” shall have the meaning set forth in Section 7.17 hereof.
“Indemnitees” shall have the meaning set forth in Section 10.5.
“Independent Accountant” shall have the meaning set forth in the Facility Administration Agreement.
“Independent Director” shall have the meaning set forth in Section 5.1(M).
“Initial Solar Asset” shall mean each Solar Asset listed on the Schedule of Solar Assets as of the Original Closing Date.
“Insolvency Event” shall mean, with respect to any Person:
(i)the commencement of: (a) a voluntary case by such Person under the Bankruptcy Code or (b) the seeking of relief by such Person under other debtor relief Laws in any jurisdiction outside of the United States;
(ii)the commencement of an involuntary case against such Person under the Bankruptcy Code (or other debtor relief Laws) and the petition is not controverted or dismissed within sixty (60) days after commencement of the case;
(iii)a custodian (as defined in the Bankruptcy Code) (or equal term under any other debtor relief Law) is appointed for, or takes charge of, all or substantially all of the property of such Person;
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
(iv)such Person commences (including by way of applying for or consenting to the appointment of, or the taking of possession by, a rehabilitator, receiver, custodian, trustee, conservator or liquidator (or any equal term under any other debtor relief Laws) (collectively, a “conservator”) of such Person or all or any substantial portion of its property) any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, liquidation, rehabilitation, conservatorship or similar law of any jurisdiction whether now or hereafter in effect relating to such Person;
(v)such Person is adjudicated by a court of competent jurisdiction to be insolvent or bankrupt;
(vi)any order of relief or other order approving any such case or proceeding referred to in clauses (i) or (ii) above is entered;
(vii)such Person suffers any appointment of any conservator or the like for it or any substantial part of its property that continues undischarged or unstayed for a period of sixty (60) days; or
(viii)such Person makes a compromise, arrangement or assignment for the benefit of creditors or generally does not pay its debts as such debts become due.
“Intended Collateral Sale Date” shall have the meaning set forth in Section 6.4.
“Interconnection Agreement” shall mean, with respect to a PV System, a contractual obligation with a utility that allows such PV System to interconnect to the utility electrical grid.
“Interest Accrual Period” shall mean for each Payment Date, the period from and including the immediately preceding Payment Date to but excluding such Payment Date except that the Interest Accrual Period for the initial Payment Date shall be the actual number of days from and including the Original Closing Date to, but excluding, the initial Payment Date; provided, however, that with respect to any application of Distributable Collections pursuant to Section 2.7(B) on a Business Day other than a Payment Date, the “Interest Accrual Period” shall mean the period from and including the immediately preceding Payment Date to but excluding such Business Day.
“Interest Distribution Amount” shall mean, individually or collectively as the context may require, the Class A Interest Distribution Amount, the Class B Interest Distribution Amount and the Additional Interest Distribution Amount, if any. For the avoidance of doubt, the Interest Distribution Amount shall not constitute “Confidential Information.”
“Interest Rate Reset Date” means, with respect to any Interest Accrual Period, the date that is two (2) Business Days prior to the first day of such Interest Accrual Period.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Intermediate Holdco” shall mean Sunnova Intermediate Holdings, LLC, a Delaware limited liability company.
“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as the same may be amended or supplemented from time to time, or any successor statute, and the rules and regulations thereunder, as the same are from time to time in effect.
“Inverter” shall mean, with respect to a PV System, the necessary device required to convert the variable direct electrical current (DC) output from a Solar Photovoltaic Panel into a utility frequency alternating electrical current (AC) that can be used by the related property, or that can be fed back into a utility electrical grid pursuant to an Interconnection Agreement.
“Invested Capital Payment Amount” shall have the meaning set forth in the Fee Letter referred to in clause (i) of the definition thereof.
“Invested Capital Payment Date” shall have the meaning set forth in the Fee Letter referred to in clause (i) of the definition thereof.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Law” shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, guideline, judgment, injunction, writ, decree or award of any Governmental Authority.
“Lease Agreement” shall mean an agreement between the owner of the PV System and a Host Customer whereby the Host Customer leases a PV System from such owner for fixed or escalating monthly payments.
“Lender Group” shall mean, individually or collectively as the context may require, each Class A Lender Group and each Class B Lender Group, as applicable.
“Lender Group Percentage” shall mean, individually or collectively as the context may require, each Class A Lender Group Percentage and each Class B Lender Group Percentage, as applicable.
“Lender Representative” shall have the meaning set forth in Section 10.16(B)(i).
“Lenders” shall have the meaning set forth in the introductory paragraph hereof.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Letter of Credit” means any letter of credit issued by an Eligible Letter of Credit Bank and provided by the Borrower to the Administrative Agent in lieu of or in substitution for moneys otherwise required to be deposited in the Liquidity Reserve Account or the Supplemental Reserve Account, as applicable, which Letter of Credit is to be held as an asset of the Liquidity Reserve Account or the Supplemental Reserve Account, as applicable, and which satisfies each of the following criteria: (i) the related account party of which is not the Borrower, (ii) is issued for the benefit of the Paying Agent, (iii) has a stated expiration date of at least 180 days from the date of determination (taking into account any automatic renewal rights), (iv) is payable in Dollars in immediately available funds to the Paying Agent upon the delivery of a draw certificate duly executed by the Paying Agent stating that (A) such draw is required pursuant to Section 8.2(C) or (D), as applicable, or (B) the issuing bank ceased to be an Eligible Letter of Credit Bank and the Letter of Credit has not been extended or replaced with a Letter of Credit issued by an Eligible Letter of Credit Bank within ten (10) Business Days such issuing bank ceasing to be an Eligible Letter of Credit Bank, (v) the funds of any draw request submitted by the Paying Agent in accordance with Sections 8.2(C) and (D) will be made available in cash no later than two (2) Business Days after the Paying Agent submits the applicable drawing documents to the related Eligible Letter of Credit Bank, and (vi) that has been reviewed by the Administrative Agent and otherwise contains terms and conditions that are acceptable to the Administrative Agent. For purposes of determining the amount on deposit in the Liquidity Reserve Account or the Supplemental Reserve Account, as applicable, the Letter of Credit shall be valued at the amount as of any date then available to be drawn under such Letter of Credit.
“LIBOR” shall mean (a) an interest rate per annum equal to the rate appearing on the applicable Screen Rate; or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the London interbank offered rate as administered by ICE Benchmark Administration (or such other Person that takes over the administration of such rate) for deposits (for delivery on the first day of such period) for a three-month period in U.S. Dollars, determined as of approximately 11:00 a.m. (London, England time) on the related Interest Rate Reset Date. Notwithstanding the foregoing, if LIBOR as determined herein would be (i) with respect to determining the interest rate applicable to any Class A Advances, less than zero percent (0.00%), such rate shall be deemed to be zero percent (0.00%) and (ii) with respect to determining the interest rate applicable to any Class B Advances, less than one half of one percent (0.50%), such rate shall be deemed to be one half of one percent (0.50%) for purposes of this Agreement.
“Lien” shall mean any mortgage, deed of trust, pledge, lien, security interest, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having the effect of, security and any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists at the time of the filing).
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Liquidated Damages Amount” shall have the meaning set forth in the Sale and Contribution Agreement.
“Liquidation Fee” shall mean for any Interest Accrual Period for which a reduction of the principal balance of the relevant Advance is made for any reason, on any day other than the last day of such Interest Accrual Period, the amount, if any, by which (A) the additional interest (calculated without taking into account any Liquidation Fee or any shortened duration of such Interest Accrual Period) which would have accrued during the portion of such Interest Accrual Period for which the cost of funding had been established prior to such reduction of the principal balance on the portion of the principal balance so reduced, exceeds (B) the income, if any, received by the Conduit Lender or the Non-Conduit Lender which holds such Advance from the investment of the proceeds of such reductions of principal balance for the portion of such Interest Accrual Period for which the cost of funding had been established prior to such reduction of the principal balance. A statement as to the amount of any Liquidation Fee (including the computation of such amount) shall be submitted by the affected Conduit Lender or the Non-Conduit Lender to the Borrower and shall be prima facie evidence of the matters to which it relates for the purpose of any litigation or arbitration proceedings, absent manifest error or fraud. Such statement shall be submitted five (5) Business Days prior to such amount being due.
“Liquidity Reserve Account” shall have the meaning set forth in Section 8.2(A)(iii).
“Liquidity Reserve Account Required Balance” shall mean on any date of determination, an amount equal to the sum of (i) the product of (a) six, (b) one-twelfth, (c) the Aggregate Outstanding Advances and (d) the weighted average effective per annum rate used to calculate the Class A Interest Distribution Amounts, the Class B Interest Distribution Amounts, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amounts, if any, for the immediately preceding Payment Date or, with respect to the initial Payment Date hereunder, 5.58%, (ii) the Final Stage Solar Asset Reserve Amount, (iii) the East Region Substantial Stage Date Solar Asset Reserve Amount, (iv) the Non-East Region Substantial Stage Date Solar Asset Reserve Amount (v) the First Payment Date Reserve Amount, (vi) the New Construction Final Stage Solar Asset Reserve Amount and (vii) the New Construction Substantial Stage Date Solar Asset Reserve Amount.
“Loan Note” shall mean, individually or collectively as the context may require, each Class A Loan Note and each Class B Loan Note, as applicable.
“Low/No FICO Solar Assets” shall mean a New Construction Solar Asset with respect to which a Solar Service Agreement has been executed and either (i) Parent has not obtained a FICO score for the related Host Customer within 30 days of such Solar Asset achieving Placed in Service or (ii) the related Host Customer had a FICO score of less than [***] at the time Parent initially obtained such Host Customer’s FICO score.
“MA SMART Revenue” shall mean any revenue received by any Financing Fund or SAP under the SMART Program and pursuant to the SMART Tariff.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Major Actions” shall mean the actions described in the provisions set forth under the heading “Major Actions” on Schedule VIII hereto.
“Majority Lenders” shall mean, as of any date of determination, (i) unless and until all Obligations owing to any Class A Lender solely in its capacity as a Class A Lender have been reduced to zero, Class A Lenders having Class A Advances exceeding fifty percent (50%) of all outstanding Class A Advances, and (ii) at any time on and after all Obligations owing to each Class A Lender solely in its capacity as Class A Lender have been reduced to zero, Class B Lenders having Class B Advances exceeding fifty percent (50%) of all outstanding Class B Advances; provided, that (w) in the event that no Advances are outstanding as of such date, “Majority Lenders” shall mean Administrative Agent, (x) so long as CSNY, its Affiliates or any related Conduit Lender with respect to CSNY or its Affiliates (the foregoing collectively referred to herein as the “Credit Suisse Related Parties”) holds at least twenty-five percent (25%) of Class A Advances or, if no Obligations are owing to any Class A Lender, Class B Advances or, if no Obligations are owing to any Lender, “Majority Lenders” shall include such Credit Suisse Related Party holding such Advances hereunder and (y) at any time there are two or less Class A Lenders, the term “Majority Lenders” shall mean all Class A Lenders holding at least twenty percent (20%) of Class A Advances. For the purposes of determining the number of Lenders in the foregoing proviso, Affiliates of a Lender shall constitute the same Lender.
“Management Agreement” shall mean, collectively, each document set forth under the heading “Management Agreements” on Schedule VIII hereto.
“Manager” shall mean, collectively, each entity set forth under the heading “Managers” on Schedule VIII hereto.
“Manager Fee” shall mean the fees, expenses and other amounts owed to the Manager pursuant to the Management Agreements.
“Managing Member” shall mean, collectively, each entity set forth under the heading “Managing Members” on Schedule VIII hereto.
“Managing Member Distributions” shall mean all distributions and payments in any form made, or due to be made, to the Managing Members or the Borrower in connection with its ownership interest in the Managing Member Interests, except for Service Incentives and SREC Direct Sale Proceeds.
“Managing Member Distributions Payment Level” shall mean, for any Collection Period, the quotient (expressed as a percentage) of (i) the sum of all Managing Member Distributions actually received in the Collection Account during such Collection Period, divided by (ii) the Scheduled Managing Member Distributions during such Collection Period.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Managing Member Interests” shall mean, collectively, the Managing Members’ interest in 100% of the interests listed under the heading “Managing Member Interests” on Schedule VIII hereto.
“Manufacturer’s Warranty” shall mean any warranty given by a manufacturer of a PV System relating to such PV System or any part or component thereof.
“Margin Stock” shall have the meaning set forth in Regulation U.
“Master SAP Contribution Agreement” shall mean that certain Master SAP Contribution Agreement, dated as of the Amendment and Restatement Date, by and among the Assignors and SAP Seller.
“Master Purchase Agreement” shall mean, collectively, each document set forth under the heading “Master Purchase Agreements” on Schedule VIII hereto.
“Material Adverse Effect” shall mean, any event or circumstance having a material adverse effect on any of the following: (i) the business, property, operations or financial condition of the Borrower, the Facility Administrator, the Parent, a Financing Fund, a Managing Member or SAP, (ii) the ability of the Borrower or the Facility Administrator to perform its respective obligations under the Transaction Documents (including the obligation to pay interest that is due and payable), (iii) the validity or enforceability of, or the legal right to collect amounts due under or with respect to, a material portion of the Eligible Solar Assets, or (iv) the priority or enforceability of any liens in favor of the Administrative Agent.
“Maturity Date” shall mean the earliest to occur of (i) the Facility Maturity Date, (ii) the occurrence of an Event of Default and declaration of all amounts due in accordance with Section 6.2(B) and (iii) the date of any voluntary termination of the Facility by the Borrower; provided that the Maturity Date may be extended in accordance with Section 2.16.
“Maximum Facility Amount” shall mean $[***].
“Minimum Payoff Amount” shall mean, with respect to a Takeout Transaction, an amount of proceeds equal to the sum of (i) the product of the aggregate Discounted Solar Asset Balance or the Collateral subject to such Takeout Transaction times the Effective Advance Rate then in effect plus (ii) any accrued interest with respect to the amount of principal of Advances being prepaid in connection with such Takeout Transaction, plus (iii) any fees due and payable to any Lender or the Administrative Agent with respect to such Takeout Transaction plus (iii) any other amounts owed by the Borrower and required to be paid pursuant to Section 2.7(B) on the date of such Takeout Transaction; provided that if such Takeout Transaction is being undertaken to cure an Event of Default, then the Minimum Payoff Amount shall include such additional proceeds as are necessary to cure such Event of Default, if any.
“Moody’s” shall mean Moody’s Investors Service, Inc., or any successor rating agency.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Multi-Employer Plan” shall mean a multi-employer plan, as defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions or had liability with respect to.
“Multiple Employer Plan” shall mean a Single-Employer Plan, to which the Borrower or any ERISA Affiliate, and one or more employers other than the Borrower or an ERISA Affiliate, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which the Borrower or an ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.
“Nationally Recognized Accounting Firm” shall mean (A) PricewaterhouseCoopers LLP, Ernst & Young LLP, KPMG LLC, Deloitte LLP and any successors to any such firm and (B) any other public accounting firm designated by the Parent and approved by the Administrative Agent, such approval not to be unreasonably withheld or delayed.
“Net Cash Flow” shall mean for any Collection Period (i) with respect to the Managing Member Interests (A) the Scheduled Managing Member Distributions minus (B) the sum of (x) the Tax Equity Investor Distribution Reduction Amount for such Collection period and (y) amounts attributable to Solar Assets that were Transferable Solar Assets as of the last day of such Collection Period and (ii) with respect to a SAP Solar Asset (other than a Substantial Stage Solar Asset), an amount equal to (A) the sum of (x) the Scheduled Host Customer Payment for such SAP Solar Asset during such Collection Period, plus (y) the Scheduled PBI Payments for such SAP Solar Asset during such Collection Period minus (B) the Operational Amounts for such Collection Period. For the avoidance of doubt, “Net Cash Flow” shall not include Service Incentives, SREC Direct Sale Proceeds or Excess SREC Proceeds.
“Net Scheduled Payment” shall mean, with respect to a Host Customer Solar Asset and PBI Solar Asset and any Collection Period an amount equal to (i) the sum of (A) the Scheduled Host Customer Payment for such Host Customer Solar Asset during such Collection Period, plus (B) the Scheduled PBI Payments for such Host Customer Solar Asset during such Collection Period, minus (ii) the sum of (A) the Manager Fee allocated with respect to such Host Customer Solar Asset during such Collection Period and (B) the Servicing Fee allocated with respect to such Host Customer Solar Asset during such Collection Period.
“New Construction Final Stage Solar Asset Reserve Amount” shall mean, as of any date of determination, the product of (i) 6/3 times (ii) the sum of the Class A Interest Distribution Amount, the Class B Interest Distribution Amount, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amount, if any, due and payable on the immediately succeeding Payment Date times (iii) the ratio of (x) the aggregate principal balance of all Advances related to Final Stage Solar Assets that are New Construction Solar Assets as of such date divided by (y) the Aggregate Outstanding Advances as of such date.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“New Construction Solar Asset” shall mean a Host Customer Solar Asset for which the related PV System is installed, or planned to be installed, on a newly constructed residential building (including Single-Family Residential Properties, multi-family homes, clubhouses or apartment buildings).
“New Construction Solar Asset Event Ratio” means, as of any Calculation Date, the ratio of (x) the aggregate Discounted Solar Asset Balance of all New Construction Solar Assets that do not, as of such Calculation Date, qualify as Eligible Solar Assets as a result of the failure to meet the requirements set forth in paragraphs 39 or 40 of Schedule I to (y) the aggregate Discounted Solar Asset Balance of all New Construction Solar Assets that have been Placed in Service. For the purposes of calculating the New Construction Solar Asset Event Ratio, any determination of whether a New Construction Solar Asset qualifies as an Eligible Solar Asset shall not take into account whether such New Construction Solar Asset fails to meet the requirements set forth on Schedule I other than the requirements set forth in paragraphs 39 or 40 thereof. The New Construction Solar Asset Event Ratio shall be included in each Facility Administrator Report.
“New Construction Solar Asset (Non-Identified Customer)” shall mean a New Construction Solar Asset with respect to which a Solar Service Agreement has not yet been signed and delivered to the Verification Agent.
“New Construction Solar Asset (Sub-PV6)” shall mean a New Construction Solar Asset (other than a New Construction Solar Asset (Non-Identified Customer)) with respect to which the mandatory prepayment amount in the related Solar Service Agreement is less than an amount determined by the discounting of all remaining projected Host Customer Payments at a pre-determined discount rate of 6.00% per annum.
“New Construction Substantial Stage Date Solar Asset Reserve Amount” shall mean, as of any date of determination, the product of (i) 10/3 times (ii) the sum of the Class A Interest Distribution Amount, the Class B Interest Distribution Amount, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amount, if any, due and payable on the immediately succeeding Payment Date times (iii) the ratio of (x) the aggregate principal balance of all Advances related to Substantial Stage Solar Assets that are New Construction Solar Assets as of such date divided by (y) the Aggregate Outstanding Advances as of such date.
“New Jersey TREC” shall mean transition renewable energy certificates administered by the State of New Jersey in accordance with the State of New Jersey, Board of Public Utilities Docket No. QO19010068, adopted December 6, 2019.
“Non-Conduit Lender” shall mean each Lender that is not a Conduit Lender.
“Non-East Region” means any state or territory of the United States that is not an East Region state or territory.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Non-East Region Substantial Stage Date Solar Asset Reserve Amount” shall mean, as of any date of determination, the product of (i) 8/3 times (ii) the sum of the Class A Interest Distribution Amount, the Class B Interest Distribution Amount, the Class A Additional Interest Distribution Amount and the Class B Additional Interest Distribution Amount, if any, due and payable on the immediately succeeding Payment Date times (iii) the ratio of (x) the aggregate principal balance of all Advances related to Substantial Stage Solar Assets that are Retrofit Solar Assets and the Host Customer of which is located in a Non-East Region as of such date divided by (y) the Aggregate Outstanding Advances as of such date; provided, however, that solely for the purpose of determining the Non-East Region Substantial Stage Date Solar Asset Reserve Amount as of the Original Closing Date, the Non-East Region Substantial Stage Date Solar Asset Reserve Amount shall be an amount reasonably calculated by the Administrative Agent and provided to the Borrower prior to the Original Closing Date.
“Notice of Borrowing” shall have the meaning set forth in Section 2.4.
“Obligations” shall mean and include, with respect to each of the Borrower, SAP, the Managing Members or Parent, respectively, all loans, advances, debts, liabilities, obligations, covenants and duties owing by such Person to the Administrative Agent, the Paying Agent or any Lender of any kind or nature, present or future, arising under this Agreement, the Loan Notes, the Security Agreement, the Pledge Agreement, the Subsidiary Guaranty, any of the other Transaction Documents or any other instruments, documents or agreements executed and/or delivered in connection with any of the foregoing, but, in the case of Parent, solely to the extent Parent is a party thereto, whether or not for the payment of money, whether arising by reason of an extension of credit, the issuance of a letter of credit, a loan, guaranty, indemnification or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising. The term includes the principal amount of all Advances, together with interest, charges, expenses, fees, attorneys’ and paralegals’ fees and expenses, any other sums chargeable to the Borrower or Parent, as the case may be, under this Agreement or any other Transaction Document pursuant to which it arose but, in the case of Parent, solely to the extent Parent is a party thereto.
“OFAC” shall have the meaning set forth in Section 4.1(S).
“Officer’s Certificate” shall mean a certificate signed by an authorized officer of an entity.
“Operational Amounts” shall mean amounts necessary for SAP to pay the Manager for O&M Services and Servicing Services and the back-up servicer for services under the Servicing Agreement listed on Schedule IX hereto, in each case, related to Solar Assets owned by SAP.
“Original Closing Date” shall mean September 6, 2019.
“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Solar Asset or Transaction Document).
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Transaction Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“O&M Services” shall mean the services required to be performed by the Manager pursuant to the terms of each Management Agreement, including all administrative, operations, maintenance, collection and other management services with respect to the related Solar Assets, maintaining required insurance and collecting sales and use taxes payable by Host Customers under their Solar Service Agreements.
“Parent” shall mean Sunnova Energy Corporation, a Delaware corporation.
“Parent Guaranty” shall mean the Second Amended and Restated Parent Guaranty, dated as of April 27, 2021, by the Parent in favor of the Borrower and the Administrative Agent.
“Participant” shall have the meaning set forth in Section 10.8.
“Participant Register” shall have the meaning set forth in Section 10.8.
“Parts” shall mean components of a PV System.
“Patriot Act” shall have the meaning set forth in Section 10.18.
“Paying Agent” shall have the meaning set forth in the introductory paragraph hereof.
“Paying Agent Account” shall have the meaning set forth in Section 8.2(A)(v).
“Paying Agent Fee” shall mean a fee payable by the Borrower to the Paying Agent as set forth in the Paying Agent Fee Letter.
“Paying Agent Fee Letter” shall mean that certain letter agreement, dated as of August 22, 2019, between the Borrower and the Paying Agent.
“Paying Agent Indemnified Parties” shall have the meaning set forth in Section 9.5.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Payment Date” shall mean the 30th day of each October, January, April and July or, if such 30th day is not a Business Day, the next succeeding Business Day, commencing October 2019.
“Payment Facilitation Agreement” shall mean each modification, waiver or amendment agreement (including a replacement Solar Service Agreement) entered into by the Manager in accordance with a Servicing Agreement relating to a Solar Service Agreement.
“PBI Documents” shall mean, with respect to a PV System, (i) all applications, forms and other filings required to be submitted to a PBI Obligor in connection with the performance based incentive program maintained by such PBI Obligor and the procurement of PBI Payments, and (ii) all approvals, agreements and other writings evidencing (a) that all conditions to the payment of PBI Payments by the PBI Obligor have been met, (b) that the PBI Obligor is obligated to pay PBI Payments and (c) the rate and timing of such PBI Payments.
“PBI Liquidated Damages” shall mean any liquidated damages due and payable to a PBI Obligor in respect of a Solar Asset.
“PBI Obligor” shall mean a utility or Governmental Authority that maintains or administers a renewable energy program designed to incentivize the installation of PV Systems and use of solar generated electricity that has approved and is obligated to make PBI Payments to the owner of the related PV System.
“PBI Payments” shall mean, with respect to a PV System and the related PBI Documents, all payments due by the related PBI Obligor under or in respect of such PBI Documents, including New Jersey TRECs and MA SMART Revenue; provided, that PBI Payments do not include Rebates, Hedged SRECs, amounts received, if any, in respect of Hedged SRECs or Service Incentives.
“PBI Solar Assets” shall mean (i) all rights and remedies of the payee under any PBI Documents related to such PV System, including all PBI Payments on and after the related Transfer Date and (ii) all documentation in the Solar Asset File and other documents held by the Verification Agent related to such than PBI Documents.
“Performance Guaranty” shall mean, with respect to a PV System, an agreement in the form of a production warranty between the Host Customer and Parent (or in some cases, between the Host Customer and the owner of the Solar Asset), which the Facility Administrator has agreed to perform on behalf of the Borrower that specifies a minimum level of solar energy production, as measured in kWh, for a specified time period. Such guarantees stipulate the terms and conditions under which the Host Customer could be compensated if their PV System does not meet the electricity production guarantees.
“Permission to Operate” shall mean, with respect to any PV System, receipt of a letter or functional equivalent from the connecting utility authorizing such PV System to be operated.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Permits” shall mean, with respect to any PV System, the applicable permits, franchises, leases, orders, licenses, notices, certifications, approvals, exemptions, qualifications, rights or authorizations from or registration, notice or filing with any Governmental Authority required to operate such PV System.
“Permitted Assignee” shall mean (a) a Lender or any of its Affiliates, (b) any Person managed by a Lender or any of its Affiliates, including any investment fund whose investment manager is the same investment manager (or an Affiliate of such investment manager) as a Lender, and (c) any Program Support Provider for any Conduit Lender, an Affiliate of any Program Support Provider, or any commercial paper conduit administered, sponsored or managed by a Lender or to which a Non-Conduit Lender provides liquidity support, an Affiliate of a Lender or an Affiliate of an entity that administers or manages a Lender or with respect to which the related Program Support Provider of such commercial paper conduit is a Lender.
“Permitted Equity Liens” shall mean the ownership interest of the related Tax Equity Investor in the related Tax Equity Facility and in each case arising under the related Financing Fund LLCA.
“Permitted Indebtedness” shall mean (i) Indebtedness under the Transaction Documents, and (ii) to the extent constituting Indebtedness, reimbursement obligations of the Borrower owed to the Borrower in connection with the payment of expenses incurred in the ordinary course of business in connection with the financing, management, operation or maintenance of the Solar Assets or the Transaction Documents.
“Permitted Investments” shall mean any one or more of the following obligations or securities: (i) (a) direct interest bearing obligations of, and interest-bearing obligations guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality of the United States the obligations of which are backed by the full faith and credit of the United States; (b) direct interest-bearing obligations of, and interest-bearing obligations guaranteed as to payment of principal and interest by, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, but only if, at the time of investment, such obligations are assigned the highest credit rating by S&P; and (c) evidence of ownership of a proportionate interest in specified obligations described in (a) and/or (b) above; (ii) demand, time deposits, money market deposit accounts, certificates of deposit of and federal funds sold by, depository institutions or trust companies incorporated under the laws of the United States of America or any state thereof (or domestic branches of foreign banks), subject to supervision and examination by federal or state banking or depository institution authorities, and having, at the time of a relevant Borrower’s investment or contractual commitment to invest therein, a short term unsecured debt rating of “A-1” by S&P; (iii) securities bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any state thereof which have a rating of no less than “A-1+” by S&P and a maturity of no more than 365 days; (iv) commercial paper (including both non-interest bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the closing date thereof) of any corporation (other than the Parent),
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
incorporated under the laws of the United States of America or any state thereof, that, at the time of the investment or contractual commitment to invest therein, a rating of “A-1” by S&P; (v) money market mutual funds, or any other mutual funds registered under the 1940 Act which invest only in other Permitted Investments, having a rating, at the time of such investment, in the highest rating category by S&P; (vi) money market deposit accounts, demand deposits, time deposits or certificates of deposit of any depository institution or trust company incorporated under the laws of the United States of America or any state thereof and subject to supervision and examination by federal or state banking or depository institution authorities; provided, however, that at the time of the investment or contractual commitment to invest therein, the commercial paper or other short-term unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) thereof will be rated “A-1+” by S&P, including proprietary money market funds offered or managed by the Paying Agent or an Affiliate thereof; (vii) repurchase agreements with respect to obligations of, or guaranteed as to principal and interest by, the United States of America or any agency or instrumentality thereof when such obligations are backed by the full faith and credit of the United States of America; provided, however, that the unsecured obligations of the party agreeing to repurchase such obligations at the time have a credit rating of no less than the A-1 by S&P; and (viii) any investment agreement (including guaranteed investment certificates, forward delivery agreements, repurchase agreements or similar obligations) with an entity which on the date of acquisition has a credit rating of no less than the A-1 by S&P, in each case denominated in or redeemable in Dollars.
“Permitted Investor” shall mean collectively, Energy Capital Partners III, LP, Energy Capital Partners III-A, LP, Energy Capital Partners III-B, LP, Energy Capital Partners III-C, LP and Energy Capital Partners-D, LP, Quantum Strategic Partners, and each of their Permitted Transferees (as defined in the Investors Agreement, dated as of March 29, 2018, by and among the Parent and the other signatories thereto).
“Permitted Liens” shall mean (i) any lien for taxes, assessments and governmental charges or levies owed by the applicable asset owner and not yet due and payable or which are being contested in good faith, (ii) Liens in favor of the Administrative Agent (or in favor of the Borrower and created pursuant to the Transaction Documents), (iii) solely in the case of Substantial Stage Solar Assets and Final Stage Solar Assets, workmen’s, mechanic’s, or similar statutory Liens securing obligations owing to approved Dealers (or subcontractors of Dealers) which are not yet due or for which reserves in accordance with GAAP have been established; provided that any such Solar Asset shall be classified as a Defective Solar Asset if not resolved within sixty (60) days of such Solar Asset receiving Permission to Operate from the applicable Governmental Authority, (iv) Liens on cash collateral or other liquid assets in favor of Eligible Hedged SREC Counterparties securing Hedged SREC Credit Support Obligations that constitute Permitted Indebtedness, (v) to the extent a PV System constitutes a fixture, any conflicting interest of an encumbrancer or owner of the real property that has or would have priority over the applicable UCC fixture filing (or jurisdictional equivalent) so long as any such lien does not adversely affect the rights of the Borrower of the Administrative Agent and (vi) any rights of customers under Host Customers Agreements.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Person” shall mean any individual, corporation (including a business trust), partnership, limited liability company, joint-stock company, trust, unincorporated organization or association, joint venture, government or political subdivision or agency thereof, or any other entity.
“Placed in Service” shall mean (a) with respect to a Retrofit Solar Asset, when the underlying PV System has (i) received of Permission to Operate, and (ii) produced meterable quantities of electricity, and (b) with respect to a New Construction Solar Asset, upon the latest to occur of (1) the PV System’s receipt of Permission to Operate and production of measurable quantities of electricity, (2) a Host Customer signing a Solar Service Agreement and (3) other than with respect to clubhouses, the closing of the sale of the related property to the such Host Customer.
“Placed in Service Failure Period” shall mean a period commencing on any Calculation Date when the New Construction Solar Asset Event Ratio is equal to or greater than 15% for the related Collection Period and ending on the next succeeding Calculation Date when the New Construction Solar Asset Event Ratio is less than 15% for the related Collection Period; provided, that no Placed in Service Failure Period shall be in effect if the New Construction Solar Asset Event Ratio is equal to or greater than 15% for a Collection Period immediately succeeding a Takeout Transaction that includes a material portion of New Construction Solar Assets included in the Borrowing Base immediately prior to such Takeout Transaction (as determined by the Administrative Agent in its reasonable discretion).
“Plan” shall mean an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code as to which the Borrower or any Affiliate may have any liability.
“Pledge Agreement” shall mean the Amended and Restated Pledge Agreement, dated as of February 12, 2020, by TEP Resources, the Borrower and the Managing Members in favor of the Administrative Agent, as amended, restated, modified and/or supplemented from time to time in accordance with its terms.
“Potential Amortization Event” shall mean any occurrence or event that, with notice, passage of time or both, would constitute an Amortization Event.
“Potential Default” shall mean any occurrence or event that, with notice, passage of time or both, would constitute an Event of Default.
“Power Purchase Agreement” shall mean either a Power Purchase Agreement (Fixed Fee) or a Power Purchase Agreement (Variable Fee), as the context requires.
“Power Purchase Agreement (Fixed Fee)” shall mean an agreement between the owner of the PV System and a Host Customer whereby the Host Customer agrees to purchase electricity produced by such PV System for a fixed fee per kWh.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Power Purchase Agreement (Variable Fee)” shall mean an agreement between the owner of the PV System and a Host Customer whereby the Host Customer agrees to purchase electricity produced by such PV System for a variable fee per kWh.
“Prepaid Solar Asset” shall mean a Solar Asset for which the related Host Customer has prepaid all amounts under the related Solar Service Agreement.
“Projected Purchase Option Price” shall mean, with respect to a Purchase Option, an amount estimated by the related Managing Member and agreed upon by the Administrative Agent on or before the Scheduled Commitment Termination Date; provided, that the Projected Purchase Option Price for the Purchase Option related to TEP V-E shall be reduced to the extent the TEP V-E Withdrawal Amount Deposit is then on deposit in the Supplemental Reserve Account. Should the Availability Period expire before the Scheduled Commitment Termination Date, the Administrative Agent may use its reasonable judgment to estimate the Projected Purchase Option Price.
“Program Support Provider” shall mean and include any Person now or hereafter extending liquidity or credit or having a commitment to extend liquidity or credit to or for the account of, or to make purchases from, a Conduit Lender (or any related commercial paper issuer that finances such Conduit Lender) in support of commercial paper issued, directly or indirectly, by such Conduit Lender in order to fund Advances made by such Conduit Lender hereunder.
“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 the applicable Financing Funds identified in Column F of Schedule XII hereto 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.
“Puerto Rico Non-Storage Solar Assets” means the Solar Assets listed on Schedule XI attached hereto.
“Puerto Rico Solar Asset” shall mean a Host Customer Solar Asset for which the related PV System is installed on a residence in Puerto Rico.
“Purchase Option” shall mean, collectively, each purchase option set forth under the heading “Purchase Options” on Schedule VIII hereto.
“Purchase Option Price” shall have the meaning set forth in the Tax Equity Financing Documents.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Purchase Standard” shall mean (i) the terms of the related Financing Fund LLCA and the terms of the Transaction Documents to which the Borrower is a party, (ii) the availability of funds in the Supplemental Reserve Account to pay the Purchase Option Price as then projected by the Facility Administrator and (iii) the same degree of analysis that the Borrower and its Affiliates use in determining whether or not to exercise similar purchase options for comparable assets owned by the Borrower and its Affiliates, taking into consideration the best interests of all parties to the Transaction Documents.
“PV System” shall mean, with respect to a Solar Asset, a photovoltaic system, including Solar Photovoltaic Panels, Inverters, Racking Systems, any Energy Storage Systems installed in connection therewith, wiring and other electrical devices, as applicable, conduits, weatherproof housings, hardware, remote monitoring equipment, connectors, meters, disconnects and over current devices (including any replacement or additional parts included from time to time) and any Ancillary PV System Components.
“PV System Payment” shall mean, for any PV System, the total monthly amounts payable under the related Solar Service Agreement multiplied by the PV System Payment Percentage.
“PV System Payment Percentage” shall mean, for any PV System, the quotient (expressed as a percentage) equal to (i) the sum of all costs that relate to the equipment for such PV System (other than any costs related to Ancillary PV System Components and any related Energy Storage System, if applicable) plus the Total Installation Cost, divided by (ii) the Total Equipment Cost plus the Total Installation Cost.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” shall have the meaning set forth in Section 10.24 hereof.
“Qualified Service Provider” shall mean one or more Independent Accountants or, subject to the approval of Administrative Agent, other service providers.
“Qualifying Hedge Counterparty” shall mean (i) a counterparty which at all times satisfies all then applicable counterparty criteria of S&P or Moody’s for eligibility to serve as counterparty under a structured finance transaction rated “[***]”, in the case of S&P or “[***]”, in the case of Moody’s or (ii) an affiliate of any Funding Agent (in which case rating agency counterparty criteria shall not be applicable).
“Qualifying Hedge Counterparty Joinder” shall mean that certain Joinder Agreement executed by a Qualifying Hedge Counterparty and acknowledged by the Administrative Agent, a copy of which shall be provided to all Parties to this Agreement.
“Qualifying Takeout Transaction” shall mean a Takeout Transaction pursuant to which the Aggregate Outstanding Advances are repaid in amount equal to or exceeding the lesser of (i)
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
$[***] and (ii) [***]% of the Aggregate Outstanding Advances immediately prior to giving effect to such Takeout Transaction.
“Racking System” shall mean, with respect to a PV System, the hardware required to mount and securely fasten a Solar Photovoltaic Panel onto the Host Customer site where the PV System is located.
“Rebate” shall mean any rebate by a PBI Obligor, electric distribution company, or state or local governmental authority or quasi-governmental agency as an inducement to install or use a PV System, paid upon such PV System receiving Permission to Operate.
“Recipient” shall mean the Administrative Agent, the Lenders or any other recipient of any payment to be made by or on account of any obligation of the Borrower under this Agreement or any other Transaction Document.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is Adjusted LIBOR Rate, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not Adjusted LIBOR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Register” shall have the meaning set forth in Section 10.8.
“Related Parties” shall mean, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, or any successor of any of the foregoing.
“Relevant Parties” shall mean the Borrower, the Managing Members and SAP.
“Reportable Event” shall mean a reportable event as defined in Section 4043 of ERISA and the regulations issued under such Section, with respect to a Plan, excluding, however, such events as to which the Pension Benefit Guaranty Corporation by regulation or by public notice waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event, provided, that a failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waivers in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Internal Revenue Code.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Required Tax Loss Insurance Coverage Period” shall mean the period beginning on the date on which a Tax Loss Insurance Policy is issued to, if prior to the scheduled expiration of a Tax Loss Insurance Policy, the Internal Revenue Service commenced an investigation of a Financing Fund that could result in a Tax Loss Indemnity with respect to such Financing Fund, the date of either (a) the termination of such investigation without a determination by the Internal Revenue Service that results in a Tax Loss Indemnity or (b) a final determination with respect to such investigation and payment of any Tax Loss Indemnity resulting from such final determination.
“Responsible Officer” shall mean (x) with respect to the Paying Agent, any President, Vice President, Assistant Vice President, Assistant Secretary, Assistant Treasurer or Corporate Trust Officer, or any other officer in the Corporate Trust Office customarily performing functions similar to those performed by any of the above designated officers, in each case having direct responsibility for the administration of this Agreement or the Facility Administration Agreement, as applicable, and (y) with respect to any other party hereto, any corporation, limited liability company or partnership, the chairman of the board, the president, any vice president, the secretary, the treasurer, any assistant secretary, any assistant treasurer, managing member and each other officer of such corporation or limited liability company or the general partner of such partnership specifically authorized in resolutions of the board of directors of such corporation or managing member of such limited liability company to sign agreements, instruments or other documents in connection with the Transaction Documents on behalf of such corporation, limited liability company or partnership, as the case may be, and who is authorized to act therefor.
“Retrofit Solar Asset” shall mean a Host Customer Solar Asset that is not a New Construction Solar Asset.
“S&P” shall mean S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, or any successor rating agency.
“Sale and Contribution Agreement” shall mean that certain Amended and Restated Sale and Contribution Agreement, dated as of the Amendment and Restatement Date, by and among SAP Seller, TEP Resources and the Borrower.
“SAP” shall mean Sunnova SAP IV, LLC, a Delaware limited liability company.
“SAP Contribution Agreement” shall mean that certain Contribution Agreement, dated as of the Original Closing Date, between the Borrower and SAP.
“SAP Distributions” shall mean all distributions and payments in any form made, or due to be made, to the Borrower in connection with its ownership interest in SAP.
“SAP Financing Documents” shall mean the documents listed on Schedule IX hereto.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“SAP Lockbox Account” shall mean account number 3111060541, established in the name of SAP at Texas Capital Bank, N.A.
“SAP Lockbox Account Control Agreement” shall mean the Deposit Account Control Agreement, dated as of January 19, 2021, by and among Texas Capital Bank, N.A., SAP and the Administrative Agent.
“SAP NTP Financing Documents” shall mean the documents listed on Schedule X hereto.
“SAP Revenue Account” shall have the meaning set forth in Section 8.2(A)(iv).
“SAP Seller” shall mean Sunnova TEP OpCo, a Delaware limited liability company.
“SAP Solar Asset” shall mean a Solar Asset owned by SAP.
“SAP Transfer” shall mean a transfer of Solar Assets pursuant to the SAP NTP Financing Documents pursuant to which (i) the SAP Solar Assets subject to such transfer are contemporaneously transferred to a Financing Fund and (ii) after giving effect thereto, no Class A Borrowing Base Deficiency, Class B-I Borrowing Base Deficiency or Class B-II Borrowing Base Deficiency exists, as demonstrated in a Borrowing Base Certificate delivered by the Borrower to the Administrative Agent no later than two (2) Business Days prior to the SAP Transfer.
“Schedule of Solar Assets” shall mean, as the context may require, the Schedule of Solar Assets owned by the Financing Funds and SAP, as such schedule may be amended from time to time in connection with the delivery of a Notice of Borrowing.
“Scheduled Commitment Termination Date” shall mean May 20, 2023, unless otherwise extended pursuant to and in accordance with Section 2.16.
“Scheduled Hedged SREC Payments” shall mean the payments scheduled to be paid by an Eligible Hedged SREC Counterparty during each Collection Period, if any, as set forth on Schedule IV hereto, as the same may be updated from time to time.
“Scheduled Host Customer Payments” shall mean for each Solar Asset, the payments scheduled to be paid by a Host Customer during each Collection Period in respect of the initial term of the related Solar Services Agreement, as set forth on Schedule V hereto (which scheduled payments, for the avoidance of doubt, subtract any Service Incentive Rebates owed to a Host Customer), as the same may be updated from time to time and may be adjusted by the Facility Administrator to reflect that such Solar Asset has become a Defaulted Solar Asset, a Defective Solar Asset or if a Payment Facilitation Agreement has been executed in connection with such Solar Asset. The Scheduled Host Customer Payments for any Power Purchase Agreement (Variable Fee) as of any date of determination shall be calculated based on rates published by U.S. Energy Information Administration for the state in which the related PV
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
System is located, escalating at 1% annually and discounted to such date of determination at an annual rate equal to 20%. For the purposes of calculating Scheduled Host Customer Payments with respect to a New Construction Solar Asset (Sub-PV6), the Discounted Solar Asset Balance of such Solar Asset shall be equal to the lesser of (i) the present value of the remaining and unpaid stream of Net Cash Flow on or after such date of determination, based upon discounting such Net Cash Flow to such date of determination at an annual rate equal to the Discount Rate, and (ii) the amount required to be paid by the related Host Customer in connection with a prepayment of amounts under the related Solar Service Agreement. The Scheduled Host Customer Payments exclude any amounts attributable to sales, use or property taxes to be collected from Host Customers.
“Scheduled Managing Member Distributions” shall mean forecasted Managing Member Distributions plus (without duplication of the forecasted Managing Member Distributions) the aggregate amount actually disbursed to Dealers for services rendered in respect of each New Construction Solar Asset (Non-Identified Customer), set as set forth on Schedule VII hereto, as the same may be updated from time to time and may be adjusted by the Facility Administrator to reflect that such Solar Asset has become a Defaulted Solar Asset, a Defective Solar Asset, if a Payment Facilitation Agreement has been executed in connection with such Solar Asset or if a Solar Asset has been repurchased by the Financing Fund Seller from a Financing Fund pursuant to the related Master Purchase Agreement. For the purposes of calculating Scheduled Managing Member Distributions with respect to a Substantial Stage Solar Asset or New Construction Solar Asset (Non-Identified Customer), the Discounted Solar Asset Balance of such Solar Assets shall be the amount actually disbursed to Dealers for services rendered in respect of such Substantial Stage Solar Asset or New Construction Solar Asset (Non-Identified Customer), as applicable. For the purposes of calculating Scheduled Managing Member Distributions with respect to a New Construction Solar Asset (Sub-PV6), the Discounted Solar Asset Balance of such Solar Asset shall be equal to the lesser of (i) the present value of the remaining and unpaid stream of Net Cash Flow on or after such date of determination, based upon discounting such Net Cash Flow to such date of determination at an annual rate equal to the Discount Rate, and (ii) the amount required to be paid by the related Host Customer in connection with a prepayment of amounts under the related Solar Service Agreement.
“Scheduled PBI Payments” shall mean for each Solar Asset, the payments scheduled to be paid by a PBI Obligor during each Collection Period, if any, as set forth on Schedule VI hereto, as the same may be updated from time to time and may be adjusted by the Facility Administrator to reflect that such Solar Asset has become a Defaulted Solar Asset, a Defective Solar Asset or if a Payment Facilitation Agreement has been executed in connection with such Solar Asset.
“Screen Rate” shall mean the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate as administered by ICE Benchmark Administration (or such other Person that takes over the administration of such rate) (such page currently being Reuters Screen LIBOR01 Page) for deposits (for delivery on the
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
first day of such period) for a three-month period in U.S. Dollars, determined as of approximately 11:00 a.m. (London, England time) on the related Interest Rate Reset Date. If the agreed page is replaced or service ceases to be available, the Administrative Agent may specify another page or service displaying the same rate after consultation with the Borrower and the Majority Lenders.
“Secured Parties” shall mean the Administrative Agent, each Lender and each Qualifying Hedge Counterparty.
“Security Agreement” shall mean the Security Agreement, dated as of the Original Closing Date, executed and delivered by the Borrower, SAP and the Managing Members in favor of the Administrative Agent, for the benefit of the Secured Parties, as amended, restated, modified and/or supplemented from time to time in accordance with its terms.
“SEI” shall mean Sunnova Energy International Inc., a Delaware corporation.
“Seller” shall mean each of SAP Seller and Financing Fund Seller.
“Service Incentives” shall mean payments paid by a state or local Governmental Authority, a utility or grid operator, a community choice aggregator or any other Person that administers a program or arrangement similar to those described herein in respect of any PV System or Energy Storage System, as applicable, in connection with any demand response programs, grid services, or any other program or arrangement utilized for the purpose of maintaining the reliability of the electrical grid to the owner thereof. For the avoidance of doubt, Service Incentives do not include PBI Solar Assets or SRECs.
“Service Incentives Rebates” shall mean any amounts credited to or paid to a Host Customer in exchange for such Host Customer permitting the related PV System and/or Energy Storage System to participate in a program or arrangement pursuant to which Service Incentives are generated, as set forth in the related Solar Service Agreement.
“Servicing Agreement” shall mean, collectively, (i) each document set forth under the heading “Servicing Agreements” on Schedule VIII hereto and (ii) the Servicing Agreement listed on Schedule IX hereto.
“Servicing Fee” shall mean the fees, expenses and other amounts owed to the Manager pursuant to the Servicing Agreements.
“Servicing Services” shall mean the services required to be performed by the Manager pursuant to the terms of each Servicing Agreement, including all billing and collection services with respect to the related Solar Assets.
“Single-Employer Plan” shall mean any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multi-Employer Plan, that is subject to Title IV
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
of ERISA or Section 412 of the Internal Revenue Code and is sponsored or maintained by the Borrower or any ERISA Affiliate or for which the Borrower or any ERISA Affiliate may have liability by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
“Single-Family Residential Property” shall mean (i) single-family homes, (ii) duplexes and triplexes of side-by-side construction where individual units are separately titled and where individual units are not separately titled, (iii) duplexes and triplexes of stacked construction where individual units are not separately titled, (iv) townhomes, (v) condos and (vi) manufactured or modular homes.
“SMART Program” shall mean the “Solar Massachusetts Renewable Target (SMART) Program” as defined in 225 CMR 20.00 et. seq., developed by the Massachusetts Department of Energy Resources (“DOER”) pursuant to Section 11(b) of Chapter 75 of the Acts of 2016, An Act Relative to Solar Energy as implemented, pursuant to regulations or guidelines issued by the DOER and/or orders, regulations and tariffs adopted by the Massachusetts Department of Public Utilities (“DPU”) in connection therewith, including pursuant to the SMART Tariff and any and all orders, regulations and tariffs and related documentation as approved or adopted by the DPU and the local electric distribution companies in connection with the DPU’s Docket 17-140 and other related dockets.
“SMART Tariff” shall have the meaning set forth in 225 CMR 20.00 et seq., including any SMART Tariff titled SMART Provision, and including, as applicable, the SMART Tariff specific to a particular local electric distribution company.
“SOFR” means, with respect to any SOFR Business Day, a rate per annum equal to the secured overnight financing rate for such SOFR Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding SOFR Business Day.
“SOFR Administrator” means the Federal Reserve Bank of New York (or any successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the SOFR Administrator’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Business Day” means a day on which banks are open for dealing in foreign currency and exchange in London, New York City and Washington, D.C.
“Solar Asset” shall mean a Host Customer Solar Asset or PBI Solar Asset, in each case owned by a Financing Fund or SAP, as applicable, or a Hedged SREC Solar Asset owned the by Borrower.
“Solar Asset File” shall have the meaning set forth in the Verification Agent Agreement.
“Solar Asset Owner Member Interests” shall mean, collectively, the 100.00% equity interests in the Managing Members and SAP.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Solar Asset Payment Level” shall mean, for any Collection Period, the quotient (expressed as a percentage) of (i) the sum of all Host Customer Payments and PBI Payments actually received by the Financing Fund or SAP, as applicable, and Hedged SREC Payments actually received by the Borrower, in each case, during such Collection Period, divided by (ii) the sum of all Scheduled Host Customer Payments, Scheduled PBI Payments and Scheduled Hedged SREC Payments during such Collection Period.
“Solar Photovoltaic Panel” shall mean, with respect to a PV System, the necessary hardware component that uses wafers made of silicon, cadmium telluride, or any other suitable material, to generate a direct electrical current (DC) output using energy from the sun’s light.
“Solar Service Agreement” shall mean in respect of a PV System, a Lease Agreement or a Power Purchase Agreement entered into with a Host Customer and all related Ancillary Solar Service Agreements, including any related Payment Facilitation Agreements, but excluding any Performance Guaranty or Customer Warranty Agreement.
“Solvent” shall mean, with respect the Borrower, that as of the date of determination, both (a) (i) the sum of such entity’s debt (including contingent liabilities) does not exceed the present fair saleable value of such entity’s present assets; (ii) such entity’s capital is not unreasonably small in relation to its business as contemplated on the Amendment and Restatement Date; and (iii) such entity has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (b) such entity is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“SREC” shall mean a solar renewable energy certificate representing any and all environmental credits, benefits, emissions reductions, offsets and allowances, howsoever entitled, that are created or otherwise arise from a PV System’s generation of electricity, including, but not limited to, a solar renewable energy certificate issued to comply with a state’s renewable portfolio standard.
“SREC Direct Sale” shall mean any sale or transfer of SRECs by a Financing Fund to Parent or an Affiliate of Parent (other than TEP Resources, the Borrower, SAP, a Managing Member or a Financing Fund) in an arm’s length transaction subject to terms and conditions that are no more favorable to Parent or such Affiliate than are commercially available at the time in unrelated third-party transactions.
“SREC Direct Sale Proceeds” shall mean cash distributions made by a Financing Fund to its related Managing Member, the Borrower or the Parent specifically and directly relating to
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
amounts received by such Financing Fund from the Parent in connection with any SREC Direct Sale.
“SREC Year” shall mean (i) with respect to New Jersey, the twelve-month period beginning on June 1 and ending on May 31 and numbered in accordance with the calendar year in which such twelve-month period ends and (ii) with respect to Massachusetts, a calendar year.
“Step-Up Rate” shall have the meaning set forth in the Fee Letter referred to in (a) clause (i) of the definition thereof with respect to the CS Lender Group and the Class B Lenders and (b) clause (ii) of the definition thereof with respect to SVB, as a Class A Lender.
“Subsidiary” shall mean, with respect to any Person at any time, (i) any corporation or trust of which 50% or more (by number of shares or number of votes) of the outstanding Capital Stock or shares of beneficial interest normally entitled to vote for the election of one or more directors, managers or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) is at such time owned directly or indirectly by such Person or one or more of such Person’s subsidiaries, or any partnership of which such Person or any of such Peron’s Subsidiaries is a general partner or of which 50% or more of the partnership interests is at the time directly or indirectly owned by such Person or one or more of such Person’s subsidiaries, and (ii) any corporation, trust, partnership or other entity which is controlled or capable of being controlled by such Person or one or more of such Person’s subsidiaries.
“Subsidiary Guaranty” shall mean the Guaranty, dated as of the Original Closing Date, by SAP, the Managing Members and each other party joined thereto as a guarantor in favor of the Administrative Agent.
“Substantial Stage Solar Asset” shall mean a Host Customer Solar Asset that has not yet been installed and for which (i) with respect to a Retrofit Solar Asset, (a) the Parent or an Affiliate thereof has been issued a “notice to proceed” confirming that the Host Customer has signed a Solar Service Agreement, (b) a Dealer has submitted a final design proposal and (c) such proposal has been approved by the Parent or an Affiliate thereof and (ii) with respect to a New Construction Solar Asset, a Dealer has completed installation of all rough electrical wiring to connect the PV system to the building. For the avoidance of doubt, a Solar Service Agreement does not need to have been signed in order for a New Construction Solar Asset to constitute a Substantial Stage Solar Asset.
“Successor Facility Administrator” shall mean a successor Facility Administrator appointed pursuant to the Facility Administration Agreement.
“SunStreet” means MoonRoad Services Group, LLC, a Delaware limited liability, or an Affiliate thereof that is a successor to and engages in its business or otherwise conducts its business in such Affiliate’s name.
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[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Sunnova Credit Facility” shall mean any financing agreement providing extensions of credit to the Parent or its Subsidiaries in which the Administrative Agent or its affiliates is a lender, agent or noteholder thereunder.
“Sunnova Inventory Holdings” shall mean Sunnova Inventory Holdings, LLC, a Delaware limited liability company.
“Sunnova Inventory Pledgor” shall mean Sunnova Inventory Pledgor, LLC, a Delaware limited liability company.
“Sunnova Management” shall mean Sunnova TE Management, LLC, a Delaware limited liability company.
“Sunnova Tracking System” shall mean the internal Solar Asset tracking system maintained by the Borrower or an Affiliate thereof for the purpose of identifying the amounts payable under a Solar Service Agreement that relate to a PV System (other than Ancillary PV System Components), an Energy Storage System (if any) and any Ancillary PV System Components.
“Supplemental Reserve Account” shall have the meaning set forth in Section 8.2(A)(ii).
“Supplemental Reserve Account Deposit” shall mean, so long as the Managing Member for TEP V-E constitutes part of the Collateral, for the Payment Date occurring in January 2023, the TEP V-E Withdrawal Amount Deposit, and for any Payment Date after Availability Period, an amount equal to the sum of (i) any Supplemental Reserve Account Deposit amounts from prior Payment Dates not deposited into the Supplemental Reserve Account, and (ii) the lesser of (a) the sum of (x) the product of (1) one-fourth of $[***] and (2) the aggregate DC nameplate capacity (measured in kW) of all PV Systems owned by the Financing Funds and SAP which are operational (excluding Transferable Solar Assets) and that have related Solar Service Agreements with remaining terms that exceed the remaining terms of the related manufacturer warranty for the Inverter associated with such PV System and (y) the product of (1) one-fourth of $[***] and (2) the aggregate storage capacity (measured in kWh) of all Energy Storage Systems owned by the Financing Funds and SAP which are operational (excluding Transferable Solar Assets) and that have related Solar Service Agreements with remaining terms that exceed the remaining terms of the related manufacturer warranty for such Energy Storage System and (b) the Supplemental Reserve Account Required Balance as of the related Calculation Date minus the sum of (1) the amount on deposit in the Supplemental Reserve Account as of the related Calculation Date, and (2) the amount, if any, being deposited into the Supplemental Reserve Account on such Payment Date pursuant to clause (i). Notwithstanding the foregoing, the Supplemental Reserve Account Deposit shall be the sum of (x) so long as the Managing Member for TEP V-E constitutes part of the Collateral, the TEP V-E Withdrawal Amount Deposit and (y) $0 for any Payment Date on which the sum of Distributable Collections is greater than or equal to the sum of (i) the payments and distributions required under clauses (i) through (iii)(a), (vii)
A-58
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
and (ix) of Section 2.7(B) and (ii) the Aggregate Outstanding Advances as of such Payment Date prior to any distributions made on such Payment Date.
“Supplemental Reserve Account Required Balance” shall mean, as of any date of determination, the sum of (X)(i) prior to the end of the Availability Period, $[***] or (ii) after the Availability Period, an amount equal to the sum of (a) for any Payment Date prior to the date on which a Managing Member has acquired the related Tax Equity Investor Interests in the related Financing Fund pursuant to the related Purchase Option, the sum of the Projected Purchase Option Prices under each Financing Fund, (b) for any Payment Date during a Required Tax Loss Insurance Coverage Period, the Tax Loss Insurance Deductibles and (c) the sum of (x) the product of (1) $[***] and (2) the aggregate DC nameplate capacity (measured in kW) of all PV Systems owned by the Financing Funds and SAP which are operational (excluding Transferable Solar Assets) and that have related Solar Service Agreements with remaining terms that exceed the remaining terms of the related manufacturer warranty for the Inverter associated with such PV System and (y) the product of (1) $[***] and (2) the aggregate storage capacity (measured in kWh) of all Energy Storage Systems owned by the Financing Funds and SAP which are operational (excluding Transferable Solar Assets) and that have related Solar Service Agreements with remaining terms that exceed the remaining terms of the related manufacturer warranty for such Energy Storage System and (Y) the TEP V-E Withdrawal Amount Deposit.
“Supported QFC” shall have the meaning set forth in Section 10.24 hereof.
“Swap Rate” shall mean, as of any date of determination, the then current weighted average of (i) the fixed interest rates under the swap agreements entered into in accordance with clause (i) of the definition of Hedge Requirements and (ii) with respect to any Advance not yet hedged in accordance with such clause (i) the then current fixed versus LIBOR swap rate associated with the Expected Amortization Profile of such Advance, as determined by the Administrative Agent in consultation with the Borrower.
“SVB” shall mean Silicon Valley Bank.
“Takeout Agreements” shall mean agreements, instruments, documents and other records entered into in connection with a Takeout Transaction.
“Takeout Transaction” shall mean (i) any sale, assignment or other transfer of the Solar Asset Owner Member Interests, SAP Solar Assets or Hedged SREC Solar Assets and related Collateral (either directly or through the sale, assignment or other transfer of all the Capital Stock of the Borrower) by the Borrower to any of its Affiliates (including a special purpose bankruptcy remote subsidiary of Parent) or to a third party, in each case, in an arms’ length transaction, which Collateral is used to secure or provide for the payment of amounts owing (or to be owing) or expected as a result of the issuance of equity or debt securities or other Indebtedness by a Person other than the Borrower that are backed by such Collateral (a “Financing Transaction”); provided, the Borrower may only enter into a Takeout Transaction if immediately after giving effect to such Financing Transaction, (w) no Event of Default exists (unless such Event of Default would be cured by application of the net proceeds of such Financing Transaction), (x) an
A-59
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
amount equal to the greater of $[***] or the Minimum Payoff Amount for the Collateral removed from the Borrower in the Financing Transaction shall be deposited into the Takeout Transaction Account for distribution in accordance with Section 2.8(B), such that no Borrowing Base Deficiency exists after giving effect to such Takeout Transaction, (y) there are no selection procedures utilized which are materially adverse to the Lenders with respect to those items of the Collateral assigned by the Borrower in the Financing Transaction and (z) such Financing Transaction is not guaranteed by and has no material recourse to the Borrower (except that such assets are being sold and assigned by it free and clear of all Liens), or (ii) any other financing arrangement, securitization, sale or other disposition of items of Collateral (either directly or through the sale or other disposition of the Capital Stock of the Borrower, a Managing Member, a Financing Fund, or SAP) entered into by Borrower or any of its Affiliates other than under this Agreement that is not a Financing Transaction and that has been consented to in writing by the Administrative Agent and the Majority Lenders.
“Takeout Transaction Account” shall have the meaning set forth in Section 8.2(A)(v).
“Takeout Transaction Failure” shall mean, if applicable to a Financing Fund as indicated in Column G of Schedule XII hereto, the failure of a Managing Member and the related Financing Fund to be included in Takeout Transaction on or prior to the date set forth for such Financing Fund in Column G of Schedule XII hereto.
“Tax Credit” shall mean an investment tax credit under Section 48(a)(3)(A)(i) of the Code or any successor provision.
“Tax Equity Facility” shall mean each transaction contemplated by the Tax Equity Financing Documents.
“Tax Equity Financing Documents” shall mean, collectively, each document set forth under the heading “Tax Equity Financing Documents” on Schedule VIII hereto.
“Tax Equity Investor” shall mean, collectively, each entity set forth under the heading “Tax Equity Investors” on Schedule VIII hereto.
“Tax Equity Investor Consent” shall mean the consent of a Tax Equity Investor of the related Tax Equity Financing Documents, as applicable relating to the transactions contemplated by this Facility.
“Tax Equity Investor Distribution Reduction Amount” shall mean, for any Collection Period, amounts required to be paid by the Financing Funds to the Tax Equity Investors, in each case, which reduce Scheduled Managing Member Distributions for such Collection Period.
“Tax Equity Investor Interests” shall mean the Tax Equity Investors’ interest in 100% of the Class A Interest in the related Financing Fund.
A-60
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Tax Equity Party” shall mean each of the Financing Funds, the Managing Members and SAP.
“Tax Loss” shall mean the amount a Tax Credit and other federal tax benefits assumed in the Base Case Model that the respective Financing Fund, the respective Managing Member or the respective Tax Equity Investor (or their respective affiliates) shall lose the benefit of, shall not have the right to claim, shall suffer the disallowance or reduction of, shall be required to recapture or shall not claim (as a result of a final determination in accordance with the terms of such Financing Fund LLCA.
“Tax Loss Claim” shall mean the assertion by the Internal Revenue Service of a position that would result in a Tax Loss Indemnity if not reversed through administrative action or litigation.
“Tax Loss Indemnity” shall mean a Managing Member’s obligation, pursuant to the terms of the related Financing Fund LLCA, to pay the related Tax Equity Investor the amount of any Tax Loss, reduced by any Tax Savings and grossed up for any U.S. federal interest, penalties, fines or additions to tax payable by a Managing Member or the related Tax Equity Investor (or their respective affiliates) as a result thereof and for the net amount of any additional U.S. federal income taxes payable by a Managing Member or the related Tax Equity Investor (or their respective affiliates) as a result of including any Tax Loss Indemnity payment in its income, in each case as a result of the breach or inaccuracy of certain representations, warranties and covenants of a Managing Member set forth in such Financing Fund LLCA or the failure by Managing Member to comply with applicable law in connection with its acts or omissions pursuant to, or the performance of any covenant or obligation under, such Financing Fund LLCA.
“Tax Loss Insurance Deductible” shall mean, with respect to a Tax Loss Insurance Policy, the deductible due under such Tax Loss Insurance Policy. Should the Availability Period expire before a Tax Loss Insurance Policy is entered into, the Administrative Agent may use reasonable judgment to estimate the Tax Loss Insurance Deductible.
“Tax Loss Insurance Policy” shall mean the policy of insurance issued by a Tax Loss Insurer with respect to a Financing Fund naming such Financing Fund and the related Managing Member as insureds and such Financing Fund as loss payee, in form and substance (including, but not limited to, amounts and coverage period) approved by the Administrative Agent in its sole discretion.
“Tax Loss Insurer” shall mean the insurance company party to any Tax Loss Insurance Policy.
“Tax Savings” shall mean, with respect to a Tax Loss, any federal income tax savings realized by a Managing Member or the related Tax Equity Investor (or their respective affiliates)
A-61
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
as a result of the Tax Loss, using an assumed tax rate equal to the maximum allowable U.S. federal corporate income tax rate applicable to corporations as of a given date of determination.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, and including any interest, additions to tax or penalties applicable thereto.
“TEP Inventory” shall mean Sunnova TEP Inventory, LLC, a Delaware limited liability company.
“TEP OpCo Contribution Agreement” shall mean that certain Contribution Agreement, dated as of the Amendment and Restatement Date, by and between SAP Seller and Financing Fund Seller.
“TEP Resources” shall mean Sunnova TEP Resources, LLC, a Delaware limited liability company.
“TEP V-E” shall mean Sunnova TEP V-E, LLC, a Delaware limited liability company.
“TEP V-E Withdrawal Amount” shall have the meaning ascribed to “Withdrawal Amount” in the Financing Fund LLCA for TEP V-E.
“TEP V-E Withdrawal Amount Deposit” shall mean an amount determined by the Managing Member of TEP V-E and agreed to by the Administrative Agent on or before the Payment Date occurring in January 2023 related to the TEP V-E Withdrawal Amount.
“TEP V-E Withdrawal Right” shall have the meaning ascribed to “Withdrawal Right” in the Financing Fund LLCA for TEP V-E.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Terminated Solar Asset” shall mean a Solar Asset for which the related PV System has experienced an Event of Loss and (i) is not repaired, restored, replaced or rebuilt to substantially the same condition as it existed immediately prior to the Event of Loss within 120 days of such Event of Loss or (ii) is deemed to be a “Cancelled Project” in accordance with the related Master Purchase Agreement.
“Total Equipment Cost” shall mean for any PV System the sum of all costs that relate to the equipment for such PV System inclusive of any Ancillary PV System Components and any related Energy Storage System, if applicable.
A-62
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Total Installation Cost” shall mean for any PV System the sum of all costs that relate to the installation of such PV System inclusive of any Ancillary PV System Components and any related Energy Storage System, if applicable.
“Transaction Documents” shall mean this Agreement, the Loan Notes, the Security Agreement, the Pledge Agreement each Fee Letter, the Paying Agent Fee Letter, the Verification Agent Fee Letter, the Facility Administration Agreement, the Verification Agent Agreement, the Contribution Agreements, the Sale and Contribution Agreement, the SAP Contribution Agreement, the SAP NTP Financing Documents, the Parent Guaranty, the Tax Equity Investor Consents, each Hedge Agreement, the SAP Lockbox Account Control Agreement and any other agreements, instruments, certificates or documents delivered hereunder or thereunder or in connection herewith or therewith, and “Transaction Document” shall mean any of the Transaction Documents.
“Transfer Date” shall mean (i) with respect to Initial Solar Assets, the Original Closing Date and (ii) (x) with respect to any Additional Solar Asset that is not a SAP Solar Asset, the date on which such Additional Solar Asset is included in the definition of Borrowing Base and the Lenders make an Advance against such Additional Solar Asset and (y) with respect to any Additional Solar Asset that is a SAP Solar Asset, the date set forth in the relevant Additional Solar Asset Supplement (as defined in the Sale and Contribution Agreement).
“Transferable Solar Asset” shall mean (i) any Solar Asset that constitutes a Defaulted Solar Asset, Defective Solar Asset, Delinquent Solar Asset, or Terminated Solar Asset and (ii) any other Solar Asset that is not an Eligible Solar Asset hereunder.
“Triggering Event Notice” shall have the meaning set forth in Section 6.3 hereof.
“UCC” shall mean the Uniform Commercial Code as from time to time in effect in any applicable jurisdiction.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Underwriting and Reassignment Credit Policy” shall mean the internal underwriting and reassignment policies of Parent and SunStreet attached as Exhibit J hereto, as such Exhibit may be modified after the Original Closing Date in accordance with Section 5.1(W) hereof.
“United States” shall mean the United States of America.
“Unused Line Fee” shall have the meaning set forth in Section 2.5(D).
“Unused Line Fee Percentage” shall have the meaning set forth in the Fee Letter referred to in (a) clause (i) of the definition thereof with respect to the CS Lender Group and the Class B Lenders and (b) clause (ii) of the definition thereof with respect to SVB, as a Class A Lender.
A-63
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
“Unused Portion of the Commitments” shall mean, as of any date of determination, the sum of the Class A Unused Portion of the Commitments plus the Class B Unused Portion of the Commitments as of such date of determination.
“Usage Percentage” shall mean, as of such date of determination, a percentage equal to (i) the Aggregate Outstanding Advances divided by (ii) the Aggregate Commitment as of such date.
“U.S. Person” shall mean any Person who is a U.S. person within the meaning of Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Special Resolution Regime” shall have the meaning set forth in Section 10.24 hereof.
“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.17(G)(ii)(b)(3).“Verification Agent” shall have the meaning set forth in the introductory paragraph hereof.
“Verification Agent Agreement” shall mean the Amended and Restated Verification Agent Agreement, dated as of May 6, 2021, by and among the Verification Agent, the Borrower, the Facility Administrator and the Administrative Agent, as amended, restated, modified and/or supplemented from time to time in accordance with its terms.
“Verification Agent Fee” shall mean a fee payable by the Borrower to the Verification Agent as set forth in the Verification Agent Fee Letter.
“Verification Agent Fee Letter” shall mean the Verification Agent Fee Letter, dated as of the date hereof, among the Borrower and the Verification Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
A-64
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit B-1
Form of Borrowing Base Certificate
Borrowing Base Certificate
Sunnova TEP Holdings, LLC
[DATE]
In connection with that certain Amended and Restated Credit Agreement, dated as of March 29, 2021 (as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Sunnova TEP Holdings, LLC, a Delaware limited liability company (the “Borrower”), Sunnova TE Management, LLC, a Delaware limited liability company, as Facility Administrator (in such capacity, the “Facility Administrator”), Credit Suisse AG, New York Branch, as Administrative Agent for the financial institutions that may become parties thereto as Lenders, the Lenders, Wells Fargo Bank, National Association, as Paying Agent, and U.S. Bank National Association, as Verification Agent, the Borrower hereby certifies that
1.The attached Schedule I sets forth the borrowing base calculations with respect to Class A Advances on the proposed Funding Date (the “Class A Borrowing Base Calculation”) and provides all data used, in Excel format, to calculate the foregoing as of the date set forth above and the computations reflected in the Class A Borrowing Base Calculation are true, correct and complete.
2.The attached Schedule II-A sets forth the borrowing base calculations with respect to Class B-I Advances on the proposed Funding Date (the “Class B-I Borrowing Base Calculation”) and provides all data used, in Excel format, to calculate the foregoing as of the date set forth above and the computations reflected in the Class B-I Borrowing Base Calculation are true, correct and complete.
3.The attached Schedule II-B sets forth the borrowing base calculations with respect to Class B-II Advances on the proposed Funding Date (the “Class B-II Borrowing Base Calculation”) and provides all data used, in Excel format, to calculate the foregoing as of the date set forth above and the computations reflected in the Class B-II Borrowing Base Calculation are true, correct and complete.
4.The attached Schedule III sets forth the Excess Concentration Amount calculations on the Funding Date (the “Excess Concentration Amount Calculation”) and provides all data used, in Excel format, to calculate the foregoing as of the date set forth above and the computations reflected in the Excess Concentration Amount Calculation are true, correct and complete.
B-1-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
5.Each Solar Asset included in the Class A Borrowing Base Calculations, in the Class B-I Borrowing Base Calculations and in the Class B-II Borrowing Base Calculations constitutes an Eligible Solar Asset as of the date hereof and the Excess Concentration Amount Calculation has been computed based on the information known to the Borrower or Facility Administrator as of the date hereof.
Capitalized terms used but not defined herein shall have the meanings specified in the Credit Agreement.
In Witness Whereof, the undersigned has executed this certificate as of the date first written above.
Sunnova TEP Holdings, LLC, as Borrower
By: _________________________________
Name:
Title:
B-1-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule I
Class A Borrowing Base Calculation
| | | | | | | | |
| 1. | Aggregate Discounted Solar Asset Balance | $_____________ |
| 2. | Excess Concentration Amount (see Line 63 of Schedule III) | $_____________ |
| 3. | Line 1 minus Line 2 | $_____________ |
| 4. | The portion of the Solar Assets included in Line 3 that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets times the applicable percentage in Column A of Schedule XII to the Credit Agreement times the applicable percentage in Column D of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 5. | The portion of the Solar Assets included in Line 3 that are Puerto Rico Solar Assets that are not Substantial Stage Solar Assets times the applicable percentage in Column B of Schedule XII to the Credit Agreement times the applicable percentage in Column D of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 6. | The portion of the Solar Assets included in Line 3 that are Substantial Stage Solar Assets times the applicable percentage in Column C of Schedule XII to the Credit Agreement times the applicable percentage in Column D of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 7. | Line 4 plus Line 5 plus Line 6 (the “Class A Borrowing Base”) | $_____________ |
| 8. | The Class A Aggregate Commitment | $[***] |
| 9. | The lesser of Line 7 and Line 8 | $_____________ |
B-1-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause 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 63 of Schedule III) | $_____________ |
| 3. | Line 1 minus Line 2 | $_____________ |
| 4. | The portion of the Solar Assets included in Line 3 that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets times the applicable percentage in Column A of Schedule XII to the Credit Agreement times the applicable percentage in Column E of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 5. | The portion of the Solar Assets included in Line 3 that are Puerto Rico Solar Assets that are not Substantial Stage Solar Assets times the applicable percentage in Column B of Schedule XII to the Credit Agreement times the applicable percentage in Column E of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 6. | The portion of the Solar Assets included in Line 3 that are Substantial Stage Solar Assets times the applicable percentage in Column C of Schedule XII to the Credit Agreement times the applicable percentage in Column E of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 7. | Line 4 plus Line 5 plus Line 6 | $_____________ |
| 8. | The Class B-I Aggregate Commitment | $[***] |
| 9. | The lesser of Line 7 and Line 8 | $_____________ |
B-1-4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause 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 63 of Schedule III) | $_____________ |
| 3. | Line 1 minus Line 2 | $_____________ |
| 4. | The portion of the Solar Assets included in Line 3 that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets times the applicable percentage in Column A of Schedule XII to the Credit Agreement times the applicable percentage in Column E of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 5. | The portion of the Solar Assets included in Line 3 that are Puerto Rico Solar Assets that are not Substantial Stage Solar Assets times the applicable percentage in Column B of Schedule XII to the Credit Agreement times the applicable percentage in Column E of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 6. | The portion of the Solar Assets included in Line 3 that are Substantial Stage Solar Assets times the applicable percentage in Column C of Schedule XII to the Credit Agreement times the applicable percentage in Column E of Schedule XII to the Credit Agreement, as determined for each Financing Fund and SAP | $_____________ |
| 7. | Line 4 plus Line 5 plus Line 6 | $_____________ |
| 8. | The greater of (a) Line 7 minus the Class B-I Aggregate Commitment and (b) zero | $_____________ |
| 9. | The Class B-II Aggregate Commitment | $[***] |
| 10. | The lesser of Line 8 and Line 9 | $_____________ |
B-1-5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule III
Excess Concentration Amount Calculation1
1.Aggregate Discounted Solar Asset Balance $____________
2.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets for which Parent has obtained a FICO score, in which the related Host Customer had a FICO score of less than
[***] at the time Parent initially obtained such FICO Score $_____________
3.Line 1 times [***]% $_____________
4.Line 2 minus 3 (enter $0 if less than $0) $_____________
5.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets for which Parent has obtained a FICO score, in which the related Host Customer had a FICO score of less than
[***] at the time Parent initially obtained such FICO Score $_____________
6.Line 1 times [***]% $_____________
7.Line 5 minus Line 6 (enter $0 if less than $0) $_____________
8.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets
in which the related PV System is located in the state in the United States
with the highest concentration of PV Systems (measured by the
aggregate Discounted Solar Asset Balance in each state and the Aggregate
Discounted Solar Asset Balance) $_____________
9.Line 1 times [***]% $_____________
10.Line 8 minus Line 9 (enter $0 if less than $0) $_____________
11.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets
in which the related PV System is located in any one of the two states
in the United States with either the highest or the second highest
concentrations of PV Systems (measured by the aggregate Discounted
Solar Asset Balance in each state and the Aggregate
Discounted Solar Asset Balance) $_____________
12.Line 1 times [***]% $_____________
13.Line 11 minus Line 12 (enter $0 if less than $0) $_____________
14.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets
in which the related PV System is located in any one of the three states
in the United States with either the highest, second highest or third highest
1 For the purpose of calculating the Excess Concentration Amount, Prepaid Solar Assets shall be deemed to have a Discounted Solar Asset Balance equal to $[***].
B-1-6
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
concentrations of PV Systems (measured by the aggregate Discounted
Solar Asset Balance in each state and the Aggregate
Discounted Solar Asset Balance) $_____________
15.Line 1 times [***]% $_____________
16.Line 14 minus Line 15 (enter $0 if less than $0) $_____________
17.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets
in which the related PV System is located in Puerto Rico, Guam or
the Northern Mariana Islands $_____________
18.Line 1 times [***]% $_____________
19.Line 17 minus Line 18 (enter $0 if less than $0) $_____________
20.The amount by which the procurement cost attributable
to Ancillary PV System Components exceeds 15.0% of the Aggregate
Discounted Solar Asset Balance $_____________
21.[Reserved]
22.[Reserved]
23.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets
in which the related PV System is located in of Guam $_____________
24.Line 1 times [***]% $_____________
25.Line 23 minus Line 24 (enter $0 if less than $0) $_____________
26.The aggregate Discounted Solar Asset Balance for Eligible Solar Assets
in which the related PV System is located in the Northern Mariana
Islands $_____________
27.Line 1 times [***]% $_____________
28.Line 26 minus Line 27 (enter $0 if less than $0) $_____________
29.The aggregate portion of the Discounted Solar Asset Balance of all
Eligible Solar Assets with Credit Card Receivables $_____________
30.Line 1 times [***]% $_____________
31.Line 29 minus Line 30 (enter $0 if less than $0) $_____________
32.The aggregate portion of the Discounted Solar Asset Balance of all
Eligible Solar Assets that are Final Stage Solar Assets $_____________
33.Line 1 times [***]% $_____________
34.Line 32 minus Line 33 (enter $0 if less than $0) $_____________
B-1-7
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
35.The aggregate portion of the Discounted Solar Asset Balance of all
Eligible Solar Assets that are Substantial Stage Solar Assets $_____________
36.Line 1 times [***]% $_____________
37.Line 35 minus Line 36 (enter $0 if less than $0) $_____________
38.The aggregate portion of the Discounted Solar Asset Balance of all
Eligible Solar Assets that are Final Stage Solar Assets or Substantial
Stage Solar Assets $_____________
39.Line 1 times [***]% $_____________
40.Line 38 minus Line 39 (enter $0 if less than $0) $_____________
41.The aggregate portion of the Discounted Solar Asset Balance of all
Eligible Solar Assets for which the related PV System
includes an Energy Storage System $_____________
42.Line 1 times [***]% $_____________
43.Line 41 minus Line 42 (enter $0 if less than $0) $_____________
44.The aggregate Discounted Solar Asset Balance of all
Eligible Solar Assets for which procurement costs attributable
to Ancillary PV System Components exceeds 25.0% of the
Discounted Solar Asset Balance of any individual Solar Asset $_____________
45.Line 1 times [***]% $_____________
46.Line 44 minus Line 45 (enter $0 if less than $0) $_____________
47.The aggregate Discounted Solar Asset Balance of all
Eligible Solar Assets for which the related Solar Service Agreement
is a Power Purchase Agreement (Variable Fee) $_____________
48.Line 1 times [***]% $_____________
49.Line 47 minus Line 48 (enter $0 if less than $0) $_____________
50.The aggregate Discounted Solar Asset Balance of all
Eligible Solar Assets that are New Construction Solar Assets (Non-
Identified Customer) $_____________
51.Line 1 times [***]% $_____________
52.Line 50 minus Line 51 (enter $0 if less than $0) $_____________
53.The aggregate Discounted Solar Asset Balance of all
B-1-8
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Eligible Solar Assets that are New Construction Solar Assets $_____________
54.Line 1 times [***]% $_____________
55.Line 53 minus Line 54 (enter $0 if less than $0) $_____________
56.The aggregate Discounted Solar Asset Balance of all Eligible Solar
Assets that are Low/No FICO Solar Assets $_____________
57.Line 1 times [***]% $_____________
58.Line 56 minus Line 57 (enter $0 if less than $0) $_____________
59.The aggregate Discounted Solar Asset Balance of all Eligible Solar
Assets for which the related PV System is not installed
on a Single-Family Residential Property $_____________
60.Line 1 times [***]% $_____________
61.Line 59 minus Line 60 (enter $0 if less than $0) $_____________
62.The aggregate Discounted Solar Asset Balance of all Eligible Solar Assets
relating to any one Host Customer which exceeds the lesser of (i) one percent (1.00%)
the Maximum Facility Amount and (ii) the U.S. Dollar equivalent of 1.5
million Swiss Francs (calculated at the rate of exchange at which,
in accordance with normal banking procedures, the Administrative Agent could purchase
with U.S. Dollars, Swiss Francs in New York City, New York,
at the close of business on the day prior to such date of determination) $_____________
63.The sum of Line 4 plus Line 7 plus Line 10 plus Line 13 plus Line 16
plus Line 19 plus Line 20 plus Line 25 plus Line 28 plus Line 31 [plus
Line 34 plus Line 37]2 plus Line 40 plus Line 43 plus Line 46 plus Line 49
plus Line 52 plus Line 55 plus Line 58 plus Line 61 plus 62
(the “Excess Concentration Amount”) $_____________
2 For the purpose of calculating the Excess Concentration Amount, Lines 34, 37 and 40 shall not be included during the period commencing on the Original Closing Date or the effective date of a Qualifying Takeout Transaction and ending ninety (90) days thereafter.
B-1-9
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit B-2
Form of Notice of Borrowing
__________ ___, 20__
To: Credit Suisse AG, New York Branch, as Administrative Agent and Class A Funding Agent
11 Madison Avenue, 3rd Floor
New York, NY 10010
Attention: Patrick Duggan
Patrick Hart
Silicon Valley Bank, as Class A Funding Agent
387 Park Ave. South, 2nd Floor
New York, NY 10016
Attention: Tai Pimputkar
Email: TPimputkar@svb.com
LibreMax Opportunistic Value Master Fund, LP, as Class B-I Funding Agent and as Class B-II Funding Agent
c/o LibreMax Capital, LLC
600 Lexington Ave, 7th Floor
New York, NY 10022
Attention: Frank Bruttomesso
Wells Fargo Bank, National Association, as Paying Agent
600 S. 4th Street, MAC N9300-061
Minneapolis, MN 55415
Attention: Corporate Trust Services – Asset Backed Administration
E-mail: ctsabsservicer@wellsfargo.com
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated as of March 29, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Sunnova TEP Holdings, LLC (the “Borrower”), Credit Suisse AG, New York Branch, as Administrative Agent for the financial institutions that may from time to time become parties thereto as Lenders (in such capacity, the “Administrative Agent”), the Lenders, Wells Fargo Bank, National Association, as Paying Agent and U.S. Bank National Association, as Verification Agent. Capitalized terms used herein but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
B-2-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
AIn accordance with Section 2.4 of the Credit Agreement, the Borrower hereby requests that the Class A Lenders provide Class A Advances based on the following criteria:
1.Aggregate principal amount of Class A Advances requested: $[____________]
2.Allocated amount of such Class A Advances to be paid by the Class A Lenders in each Class A Lender Group:
CS Lender Group $[________________]
[_____________] $___________________
3.$_______________ should be transferred to the Liquidity Reserve Account
4.$_______________ should be transferred to the Supplemental Reserve Account
Account(s) to which Class A Funding Agents should wire the balance of the requested funds:
Bank Name: [_________________]
ABA No.: [_________________]
Account Name: [_________________]
Account No.: [_________________]
Reference: [_________________]
5.Attached to this notice as Exhibit A is the Borrowing Base Certificate in connection with these Class A Advances and a related Schedule of Solar Assets.
BIn accordance with Section 2.4 of the Credit Agreement, the Borrower hereby requests that the Class B-I Lenders provide Class B-I Advances based on the following criteria:
1.Aggregate principal amount of Class B-I Advances requested: $[____________]
2.Allocated amount of such Class B-I Advances to be paid by the Class B-I Lenders in each Class B-I Lender Group:
[_____________] $[________________]
[_____________] $[________________]__________________
3.$_______________ should be transferred to the Liquidity Reserve Account
4.$_______________ should be transferred to the Supplemental Reserve Account
Account(s) to which Class B-I Funding Agents should wire the balance of the requested funds:
Bank Name: [_________________]
ABA No.: [_________________]
Account Name: [_________________]
Account No.: [_________________]
Reference: [_________________]
B-2-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
5.Attached to this notice as Exhibit B is the Borrowing Base Certificate in connection with these Class B-I Advances and a related Schedule of Solar Assets.
CIn accordance with Section 2.4 of the Credit Agreement, the Borrower hereby requests that the Class B-II Lenders provide Class B-II Advances based on the following criteria:
6.Aggregate principal amount of Class B-II Advances requested: $[____________]
7.Allocated amount of such Class B-II Advances to be paid by the Class B-II Lenders in each Class B-II Lender Group:
[_____________] $[________________]
[_____________] $[________________]___________________
8.$_______________ should be transferred to the Liquidity Reserve Account
9.$_______________ should be transferred to the Supplemental Reserve Account
Account(s) to which Class B-II Funding Agents should wire the balance of the requested funds:
Bank Name: [_________________]
ABA No.: [_________________]
Account Name: [_________________]
Account No.: [_________________]
Reference: [_________________]
10.Attached to this notice as Exhibit B is the Borrowing Base Certificate in connection with these Class B-II Advances and a related Schedule of Solar Assets.
DIn accordance with Section 3.2 of the Credit Agreement, the Borrower hereby certifies that no Amortization Event, Event of Default, Potential Amortization Event or Potential Default has occurred and is continuing or would result from any borrowing of any Advance or from the application of the proceeds therefrom.
Very truly yours,
Sunnova TEP Holdings, LLC, as Borrower
By: _________________________________
Name:
Title:
B-2-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit A
Borrowing Base Certificate
[see attached]
B-2-4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit B
Borrowing Base Certificate
[see attached]
B-2-5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit C
[Reserved]
C-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit D-1
Form of Class A Loan Note
Class A Loan Note
Up to $[________] [DATE]
New York, New York
Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 29, 2021 (as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Sunnova TEP Holdings, LLC, a Delaware limited liability company (the “Borrower”), Sunnova TE Management, LLC, a Delaware limited liability company, as Facility Administrator, Credit Suisse AG, New York Branch, as Administrative Agent for the Lenders (including any Conduit Lender) that may become parties thereto, the Lenders, Wells Fargo Bank, National Association, as Paying Agent, and U.S. Bank National Association, as Verification Agent. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.
For Value Received, the Borrower hereby promises to pay [________], as Class A Funding Agent, for the benefit of the Class A Lenders in its Class A Lender Group (the “Class A Loan Note Holder”) on the Maturity Date or such earlier date as provided in the Credit Agreement, in immediately available funds in lawful money of the United States the principal amount of up to [__________] DOLLARS ($[________]) or, if less, the aggregate unpaid principal amount of all Class A Advances made by the Class A Lenders in the Class A Loan Note Holder’s Class A Lender Group to the Borrower pursuant to the Credit Agreement together with all accrued but unpaid interest thereon.
The Borrower also agrees to pay interest in like money to the Class A Loan Note Holder, for the benefit of the Class A Lenders in its Class A Lender Group, on the unpaid principal amount of each such Class A Advance from time to time from the date hereof until payment in full thereof at the rate or rates and on the dates set forth in the Credit Agreement.
This Class A Loan Note is one of the Loan Notes referred to in, and is entitled to the benefits of, the Credit Agreement, which, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions specified therein and is secured by the Collateral.
In the event of any inconsistency between the provisions of this Class A Loan Note and the provisions of the Credit Agreement, the Credit Agreement will prevail.
D-1-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
This Class A Loan Note shall be governed by, and construed in accordance with, the laws of the State of New York (including Sections 5-1401 and 5-1402 of the general obligations laws of the State of New York but otherwise without regard to conflicts of law principles).
Any legal action or proceeding with respect to this Class A Loan Note may be brought in the courts of the State of New York or of the United States for the Southern District of New York, and by execution and delivery of this Class A Loan Note, each of the parties hereto consents, for itself and in respect of its property, to the exclusive jurisdiction of those courts. Each of the parties hereto irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, or any legal process with respect to itself or any of its property, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Class A Loan Note or any document related hereto. Each of the parties hereto waives personal service of any summons, complaint or other process, which may be made by any other means permitted by New York Law.
All parties hereunder hereby knowingly, voluntarily and intentionally waive any rights they may have to a trial by jury in respect of any litigation based hereon, or arising out of, under, or in connection with, this Class A Loan Note, or any course of conduct, course of dealing, statements (whether oral or written) or actions of the parties in connection herewith or therewith. All parties acknowledge and agree that they have received full and significant consideration for this provision and that this provision is a material inducement for all parties to enter into this Class A Loan Note.
This Class A Loan Note may be transferred or assigned by the holder hereof at any time, subject to compliance with the Credit Agreement and any applicable law. This Class A Loan Note shall be binding upon the Borrower and shall inure to the benefit of the holder hereof and its successors and assigns. The obligations and liabilities of the Borrower hereunder may not be assigned to any Person without the prior written consent of the holder hereof. Any such assignment in violation of this paragraph shall be void and of no force or effect.
Demand, presentment, protest and notice of nonpayment and protest are hereby waived by the Borrower.
[Signature page follows.]
D-1-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
In Witness Whereof, this Class A Loan Note has been duly executed and delivered on behalf of the Borrower by its duly authorized officer on the date and year first written above.
Sunnova TEP Holdings, LLC, as Borrower
By: ____________________________________
Name:
Title:
D-1-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit D-2
Form of Class B Loan Note
Class B-[I][II] Loan Note
Up to $[________] [DATE]
New York, New York
Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 29, 2021 (as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Sunnova TEP Holdings, LLC, a Delaware limited liability company (the “Borrower”), Sunnova TE Management, LLC, a Delaware limited liability company, as Facility Administrator, Credit Suisse AG, New York Branch, as Administrative Agent for the Lenders (including any Conduit Lender) that may become parties thereto, the Lenders, Wells Fargo Bank, National Association, as Paying Agent, and U.S. Bank National Association, as Verification Agent. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.
For Value Received, the Borrower hereby promises to pay LibreMax Opportunistic Value Master Fund, LP, as Class B-[I][II] Funding Agent, for the benefit of the Class B-[I][II] Lenders in its Class B-[I][II] Lender Group (the “Class B-[I][II] Loan Note Holder”) on the Maturity Date or such earlier date as provided in the Credit Agreement, in immediately available funds in lawful money of the United States the principal amount of up to [__________] DOLLARS ($[________]) or, if less, the aggregate unpaid principal amount of all Class B-[I][II] Advances made by the Class B-[I][II] Lenders in the Class B-[I][II] Loan Note Holder’s Class B-[I][II] Lender Group to the Borrower pursuant to the Credit Agreement together with all accrued but unpaid interest thereon.
The Borrower also agrees to pay interest in like money to the Class B-[I][II] Loan Note Holder, for the benefit of the Class B-[I][II] Lenders in its Class B-[I][II] Lender Group, on the unpaid principal amount of each such Class B-[I][II] Advance from time to time from the date hereof until payment in full thereof at the rate or rates and on the dates set forth in the Credit Agreement.
This Class B-[I][II] Loan Note is one of the Loan Notes referred to in, and is entitled to the benefits of, the Credit Agreement, which, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions specified therein and is secured by the Collateral.
In the event of any inconsistency between the provisions of this Class B-[I][II] Loan Note and the provisions of the Credit Agreement, the Credit Agreement will prevail.
D-2-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
This Class B-[I][II] Loan Note shall be governed by, and construed in accordance with, the laws of the State of New York (including Sections 5-1401 and 5-1402 of the general obligations laws of the State of New York but otherwise without regard to conflicts of law principles).
Any legal action or proceeding with respect to this Class B-[I][II] Loan Note may be brought in the courts of the State of New York or of the United States for the Southern District of New York, and by execution and delivery of this Class B-[I][II] Loan Note, each of the parties hereto consents, for itself and in respect of its property, to the exclusive jurisdiction of those courts. Each of the parties hereto irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, or any legal process with respect to itself or any of its property, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Class B-[I][II] Loan Note or any document related hereto. Each of the parties hereto waives personal service of any summons, complaint or other process, which may be made by any other means permitted by New York Law.
All parties hereunder hereby knowingly, voluntarily and intentionally waive any rights they may have to a trial by jury in respect of any litigation based hereon, or arising out of, under, or in connection with, this Class B-[I][II] Loan Note, or any course of conduct, course of dealing, statements (whether oral or written) or actions of the parties in connection herewith or therewith. All parties acknowledge and agree that they have received full and significant consideration for this provision and that this provision is a material inducement for all parties to enter into this Class B-[I][II] Loan Note.
This Class B-[I][II] Loan Note may be transferred or assigned by the holder hereof at any time, subject to compliance with the Credit Agreement and any applicable law. This Class B-[I][II] Loan Note shall be binding upon the Borrower and shall inure to the benefit of the holder hereof and its successors and assigns. The obligations and liabilities of the Borrower hereunder may not be assigned to any Person without the prior written consent of the holder hereof. Any such assignment in violation of this paragraph shall be void and of no force or effect.
Demand, presentment, protest and notice of nonpayment and protest are hereby waived by the Borrower.
[Signature page follows.]
D-2-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
In Witness Whereof, this Class B-[I][II] Loan Note has been duly executed and delivered on behalf of the Borrower by its duly authorized officer on the date and year first written above.
Sunnova TEP Holdings, LLC, as Borrower
By: ____________________________________
Name:
Title:
D-2-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
EXHIBIT E
COMMITMENTS
Class A Commitments:
| | | | | |
| The Class A Aggregate Commitment |
| Credit Suisse AG, Cayman Islands Branch | $[***] |
| Silicon Valley Bank | $[***] |
| 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: | $[***] |
E-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit F
Form of Assignment Agreement
This Assignment Agreement (the “Assignment Agreement”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below (the “Assignor”) and the Assignee identified in item 2 below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment Agreement as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a [Class A][Class B] Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a [Class A][Class B] Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment Agreement, without representation or warranty by the Assignor.
1.Assignor: ________________________________
2.Assignee: ________________________________
3.Administrative Agent: Credit Suisse AG, New York Branch
4.Credit Agreement: Amended and Restated Credit Agreement, dated as of March 29, 2021, by and among Sunnova TEP Holdings, LLC, a Delaware limited liability company, Sunnova TE Management, LLC, a Delaware limited liability company, Credit Suisse AG, New York Branch, as Administrative Agent for the Lenders (including any Conduit Lender) that may become parties thereto, the
F-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Lenders, Wells Fargo Bank, National Association, as Paying Agent, and U.S. Bank National Association, as Verification Agent
5.Assigned Interest:
| | | | | | | | | | | | | | | | | | | | | | | |
| Assignor | Assignee | Type of Loans Assigned (Class A or Class B) | Aggregate Amount of Loans for all Lenders | Class [A][B] Commitment | Amount of Class [A][B] Commitment Assigned | Amount of Loans Assigned | Percentage Assigned of
Loans |
| | | $ | | $ | % |
[Signature pages follow]
F-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Effective Date: ________________, 20__
The terms set forth in this Assignment Agreement are hereby agreed to:
Assignor
[Name of Assignor]
By
Name
Title
Assignee
[Name of Assignee]
By
Name
Title
Accepted:
Credit Suisse AG, New York Branch,
as Administrative Agent
By
Name
Title
By
Name
Title
F-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Annex 1
Standard Terms and Conditions for
Assignment Agreement
Section 1.Representations and Warranties.
Section 1.1.Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment Agreement and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Transaction Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Transaction Documents or any collateral thereunder, (iii) the financial condition of the Borrower or any other Person obligated in respect of any Transaction Document, or (iv) the performance or observance by the Borrower or any other Person of any of their respective obligations under any Transaction Document.
Section 1.2.Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment Agreement and to consummate the transactions contemplated hereby and to become a [Class A][Class B] Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 10.8 of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.8 of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a [Class A][Class B] Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a [Class A][Class B] Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to the Credit Agreement, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment Agreement and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment Agreement and to purchase the Assigned Interest, and (vii) attached to the Assignment Agreement is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Transaction
F-4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Transaction Documents are required to be performed by it as a Lender.
[The Assignee further represents, warrants and covenants that:
(i)it (A) is not, and will not become, a “tax-exempt entity” as described in clauses (i), (ii) or (iv) of Section 168(h)(2)(A) of the Internal Revenue Code, incorporating any cross-references in that Section (and excluding corporations described in Section 168(h)(2)(D) of the Internal Revenue Code); (B) will, if it is a foreign person or entity described in Section 168(h)(2)(A)(iii) of the Internal Revenue Code, satisfy the exception in Section 168(h)(2)(B) of the Internal Revenue Code (regarding taxability of its income by the United States) if the Class B Advances are treated as equity for U.S. federal income tax purposes and the Borrower is characterized as a partnership; and (C) is not, and will not become, a tax-exempt controlled entity within the meaning of Section 168(h)(6)(F)(iii) of the Internal Revenue Code; and
(ii)either (a) the Assignee is not and will not become, for U.S. federal income tax purposes, an entity disregarded from its owner, a pass-thru entity (as such term is used in Section 168(h) of the Internal Revenue Code) or a partnership (each such entity a “flow-through entity”) or (b) if the Assignee is or becomes a flow-through entity, then each direct or indirect (through one or more tiers of flow-through entities) owner of any of the interests in such flow-through entity would satisfy representation (i) above if such person held the Class B Advances directly.]3
Section 2.Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.
Section 3.General Provisions.
This Assignment Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment Agreement may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment Agreement by telecopy shall be effective as delivery of a manually executed counterpart of
3 To be included for assignments of Class B Advances only.
F-5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
this Assignment Agreement. This Assignment Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
F-6
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit G
Form of Solar Service Agreement
[On File with Administrative Agent]
G-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit H
Form of Notice of Delayed Funding
Sunnova TEP Holdings, LLC
20 Greenway Plaza, Suite 540
Houston, TX 77046
Re: Notice of Potential For Delayed Funding
Reference is made to the Amended and Restated Credit Agreement, dated as of March 29, 2021 (as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Sunnova TEP Holdings, LLC (the “Borrower”), Credit Suisse AG, New York Branch, as Administrative Agent for the financial institutions that may from time to time become parties thereto as Lenders (in such capacity, the “Administrative Agent”), the Lenders, Wells Fargo Bank, National Association, as Paying Agent and U.S. Bank National Association, as Verification Agent. Capitalized terms used herein but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.4(E) of the Credit Agreement, [___], as a Non-Conduit Lender, hereby notifies the Borrower that it has incurred external costs, fees or expenses directly related to and as a result of the “liquidity coverage ratio” under Basel III in respect of its Commitments under the Credit Agreement and/or its interests in the Loan Notes.
Sincerely,
[____]
By: _____________________________
Name:
Title:
I-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit I
Delayed Funding Notice
Sunnova TEP Holdings, LLC
20 Greenway Plaza, Suite 540
Houston, TX 77046
Re: Notice of Potential For Delayed Funding
Reference is made to the Amended and Restated Credit Agreement, dated as of March 29, 2021 (as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Sunnova TEP Holdings, LLC (the “Borrower”), Credit Suisse AG, New York Branch, as Administrative Agent for the financial institutions that may from time to time become parties thereto as Lenders (in such capacity, the “Administrative Agent”), the Lenders, Wells Fargo Bank, National Association, as Paying Agent and U.S. Bank National Association, as Verification Agent. Capitalized terms used herein but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.4(E) of the Credit Agreement, [___], as a Non-Conduit Lender, hereby notifies the Borrower of its intent to fund its amount of the Advance related to the Notice of Borrowing delivered by the Borrower on [__], on a Business Day that is before [____]4, rather than on the date specified in such Notice of Borrowing.
Sincerely,
[____]
By: _____________________________
Name:
Title:
4 Thirty-five days following the date of delivery by such Non-Conduit Lender of this Delayed Funding Notice.
I-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit J
Underwriting and Reassignment Credit Policy
[See attached]
J-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Exhibit K
Disqualified Lenders
Connecticut Green Bank
Dividend Solar Finance LLC
Greensky, LLC
Hannon Armstrong Sustainable Infrastructure Capital, Inc.
IGS Solar, LLC
New York Green Bank
Omnidian, Inc.
Paramount Equity Mortgage, LLC, d/b/a Loanpal
Radian Group Inc.
Renew Financial Group, LLC
Renovate America, Inc.
Solar Mosaic, Inc.
Spruce Finance Inc.
Sungage Financial, Inc.
Sunlight Financial LLC
Sunpower Corporation
Sunrun Inc.
SunSystem Technology, LLC
Tesla, Inc.
Vivint, Inc.
Ygrene Energy Fund, Inc.
K-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule I
Eligibility Criteria
Representations and Warranties as to Solar Assets
1.Accuracy of Schedule of Solar Assets. Each entry with respect to the Solar Asset set forth on the Schedule of Solar Assets is complete, accurate, true and correct in all material respects and does not omit any necessary information that makes such entry misleading, including (i) if such Solar Asset is a Substantial Stage Solar Asset or New Construction Solar Asset (Non-Identified Customer), the amount disbursed to Dealers for services rendered in respect of such Substantial Stage Solar Asset or New Construction Solar Asset (Non-Identified Customer) and (ii) if such Solar Asset is a New Construction Solar Asset (Sub-PV6), the amount required to be paid by the related Host Customer in connection with a prepayment in full of amounts under the related Solar Service Agreement.
2.Form of Solar Service Agreement. The related Solar Service Agreement is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be), substantially in the form of one of the Parent’s standard forms of Solar Service Agreement attached as Exhibit G to this Agreement (as such Exhibit may be modified after the Original Closing Date in accordance with Section 5.1(X) of the Agreement). The related Solar Service Agreement provides (or in the case of a New Construction Solar Asset (Non-Identified Customer), will provide) that an Approved Installer has designed, procured and installed, or will design, procure and install, a PV System at the property specified in such Solar Service Agreement and the Host Customer agrees to purchase electric energy produced by such PV System or lease such PV System. At the time of installation, such Approved Installer was properly licensed and had the required expertise to design, procure and install the related PV System.
3.Modifications to Solar Service Agreement. The terms of the related Solar Service Agreement have not been amended, waived, extended, or modified in any manner inconsistent with the Customer Collection Policy after the date such Solar Service Agreement is entered into.
4.Host Customer Payments in U.S. Dollars. The related Host Customer is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) obligated per the terms of the related Solar Service Agreement to make payments in U.S. dollars to the owner of the related Solar Service Agreement or its designee.
5.Host Customer FICO Score. With respect to Retrofit Solar Assets, as of the date of the Solar Service Agreement, the related Host Customer has a FICO of at least [***].
6.Weighted Average FICO Score. After giving effect to the Solar Asset’s inclusion in the Collateral, the weighted average FICO score (determined (i) with respect to Retrofit Solar Assets, as of the dates of the related Solar Service Agreements, and (ii) with respect to
Schedule I-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
New Construction Solar Assets, as of the date Parent initially obtains a FICO Score for the applicable Host Customer) for Eligible Solar Assets will be at least [***]. For the avoidance of doubt, New Construction Solar Assets with respect to which a FICO score has not been obtained for the applicable Host Customer shall not be included in this calculation.
7.Absolute and Unconditional Obligation. The related Solar Service Agreement is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) by its terms an absolute and unconditional obligation of the Host Customer to pay for electricity generated and delivered or that will be generated and delivered by the related PV System to such Host Customer after the related PV System has been Placed in Service, and the payment obligations under the related Solar Service Agreement do not (or in the case of a New Construction Solar Asset (Non-Identified Customer), will not) provide for offset for any reason, including without limitation non-payment or non-performance by the Parent or any assignee thereof under any Customer Warranty Agreement or Performance Guaranty.
8.Non-cancelable; Prepayable. Other than with respect to New Construction Solar Assets (Sub-PV6), the related Solar Service Agreement is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) non-cancelable and prepayable by the Host Customer, if at all, only with a mandatory prepayment amount equal to or greater than an amount determined by the discounting of all remaining projected Host Customer Payments at a pre-determined discount rate of not more than 6.00% per annum. With respect to New Construction Solar Assets (Sub-PV6), the related Solar Service Agreement is non-cancelable and prepayable by the Host Customer, if at all, only with a mandatory prepayment amount equal to the amount specified in the Schedule of Solar Assets.
9.Freely Assignable.
a.Ownership of the related PV System is freely assignable to a Financing Fund or SAP, as applicable, and a security interest in such PV System may be granted by SAP, without the consent of any Person, except any such consent as has already been obtained.
b.The related Solar Service Agreement and the rights with respect to the related Solar Assets (other than the PV System) are (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) freely assignable to a Financing Fund or SAP, as applicable, and a security interest in such Solar Assets may be granted by SAP, without the consent of any Person, except any such consent as has already been obtained.
10.Legal Compliance. The origination of the related Solar Service Agreement and related PV Systems, as installed, was in compliance (or in the case of a Substantial Stage Solar
Schedule I-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Asset or a New Construction Solar Asset (Non-Identified Customer), will be in compliance) in all material respects with respect to the applicable federal, state and local laws and regulations including those relating to usury, truth-in-lending, consumer credit protection and disclosure laws at the time such Solar Service Agreement was originated or such PV System was installed (or in the case of a Substantial Stage Solar Asset, will be installed), as applicable.
11.Legal, Valid and Binding Agreement. The related Solar Service Agreement is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be upon execution) the legal, valid and binding payment obligation of the related Host Customer, enforceable against such related Host Customer in accordance with its terms, except as such enforceability may be limited in the future by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally, and except as such enforceability may be limited in the future by general principles of equity (whether considered in a suit at law or in equity).
12.No Delinquencies, Defaults or Terminations. With respect to Solar Assets other than New Construction Solar Assets (Non-Identified Customer), the related Solar Service Agreement is not a Delinquent Solar Asset or a Defaulted Solar Asset and the related PV System is not a Terminated Solar Asset. Furthermore, the Host Customer associated with such related Solar Service Agreement is not a Host Customer for any other Solar Service Agreement that was originated, acquired and/or serviced by the Parent or any Affiliate thereof that would meet the definition of either Delinquent Solar Asset or Defaulted Solar Asset.
13.Minimum Payments Made. Either a minimum of one payment due under the related Solar Service Agreement has been made or the related Host Customer’s first payment under the related Solar Service Agreement has not been made because such payment is not yet due but such payment is due (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be due) in (or, in the case of a New Construction Solar Asset, on the first Business Day following) the calendar month no later than the first full calendar month immediately following the later of (a) the related Transfer Date or (b) the date that such Solar Asset is (or in the case of a Substantial Stage Solar Asset or a Final Stage Solar Asset, is expected to be) Placed in Service.
14.PV System and Solar Service Agreement Status. With respect to Solar Assets that have been Placed in Service, the related PV System has not been turned off due to a Host Customer delinquency under the Solar Service Agreement.
15.Affiliate Host Customers. Solar Service Agreements comprising no more than 0.25% of the Aggregate Discounted Solar Asset Balance as of the Original Closing Date (with respect to the Initial Solar Assets) and as of the most recent Transfer Date (as to all Eligible Solar Assets then owned by a Financing Fund or SAP) are (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) related to Host
Schedule I-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Customers that are Persons who are employees of the Parent, the Borrower or any of their respective Affiliates.
16.No Adverse Selection. No selection procedures reasonably believed by the Parent or Borrower to be adverse to the Lenders were utilized in selecting such Solar Asset and the related Solar Service Agreement from among the Eligible Solar Assets directly owned by the Parent or its Affiliates.
17.Full Force and Effect. The related Solar Service Agreement is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be upon execution) in full force and effect in accordance with its respective terms, except as may be limited in the future by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally, and except as such enforceability may be limited in the future by general principles of equity (whether considered in a suit at law or in equity).
18.Ordinary Course of Business. The related Solar Service Agreement relates (or in the case of a New Construction Solar Asset (Non-Identified Customer), will relate) to the sale of power from or the leasing of a PV System, and such Solar Service Agreement was (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) originated or acquired consistent with the ordinary course of business of the Parent.
19.PV System. Except in the case of a Substantial Stage Solar Asset, the related PV System was properly delivered to and installed in good repair, without defects and in satisfactory order. Except in the case of a Substantial Stage Solar Asset or a Final Stage Solar Asset that is a New Construction Solar Asset, the related Host Customer has accepted the related PV System, and no related Host Customer has notified the Parent or any Affiliate thereof of any existing defects therein which is not in the process of being investigated, addressed or repaired by the Parent or any Affiliate thereof. Except in the case of a Substantial Stage Solar Asset, the Solar Photovoltaic Panels with respect to the related PV System were manufactured by an Approved Vendor at the time of installation. Except in the case of a Substantial Stage Solar Asset or a Final Stage Solar Asset that is a New Construction Solar Asset, Inverters and Energy Storage Systems with respect to the related PV System were manufactured by an Approved Vendor at the time of installation.
20.No Defenses Asserted. Except in the case of a New Construction Solar Asset (Non-Identified Customer), the related Solar Service Agreement, has not been satisfied, subordinated or rescinded and no lawsuit is pending with respect to such related Solar Service Agreement.
21.Insurance. With respect to the related PV System (other than if such PV System is related to a Substantial Stage Solar Asset), the Parent has obtained and does maintain insurance in amounts and coverage consistent with the Parent’s policies. The Parent’s policies in respect of amounts, coverage and monitoring compliance thereof are consistent with insurance broker recommendations based on probable maximum loss
Schedule I-4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
projections and with the Parent’s historic loss experience, taking into account what is commercially reasonable and available in the market on commercially reasonable terms. All such required insurance is in full force and effect.
22.Taxes and Governmental Charges. The transfer, assignment and the pledge of the Collateral by the Borrower, a Managing Member and SAP pursuant to the Security Agreement and the Pledge Agreement is not subject to and will not result in any Tax payable by the Borrower to any federal, state or local government except as has been paid or provided for. No Tax is owed in connection with any period prior to the applicable Cut-Off Date or with respect to the sale, contribution or assignment of Conveyed Property by the applicable Assignor to SAP Seller, by SAP Seller to TEP Resources, by TEP Resources to the Borrower or by the Borrower to SAP, except as has been paid or provided for.
23.Governing Law of Solar Service Agreement. The related Solar Service Agreement is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) governed by the laws of a state or territory of the United States and was not originated in, nor is it subject to the laws of, any jurisdiction, the laws of which would make unlawful the sale, transfer, pledge or assignment of such Solar Service Agreement under any of the Transaction Documents, including any exchange for refund in accordance with the Transaction Documents.
24.No Unpaid Fees. Except in the case of a Substantial Stage Solar Asset or a Final Stage Solar Asset, there are no unpaid fees owed to third parties relating to the origination of the related Solar Service Agreement and installation of the related PV System.
25.Payment Terms of Solar Service Agreement. The related Solar Service Agreement provides (or in the case of a New Construction Solar Asset (Non-Identified Customer), will provide) that the Host Customer thereunder is required to make periodic Host Customer Payments, which are due and payable on a monthly basis, during the term of the related Solar Service Agreement.
26.PBI Payments.
a.Except with respect to Substantial Stage Solar Assets and Final Stage Solar Assets, all applications, forms and other filings required to be submitted in connection with the procurement of PBI Payments have been properly made in all material respects under applicable law, rules and regulations and the related PBI Obligor has provided a written reservation approval (which may be in the form of electronic mail from the related PBI Obligor) for the payment of PBI Payments.
b.Except with respect to Substantial Stage Solar Assets and Final Stage Solar Assets, all conditions to the payment of PBI Payments by the related PBI Obligor (including but not limited to the size of the PV Systems, final site visits, provision
Schedule I-5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
of data, installation of metering, proof of project completion, production data and execution and delivery of final forms and related agreements (including all applications, forms and other filings and any written reservation approvals, Interconnection Agreements and REC purchase agreements, if required, each, a “Performance Based Incentive Agreement”)) have been satisfied or approved, as applicable, and the PBI Obligor’s payment obligation is an absolute and unconditional obligation of the PBI Obligor that is not, by the terms of the related Performance Based Incentive Agreement, subject to offset for any reason.
c.Copies of all PBI Documents and the Performance Based Incentive Agreement, if any, for PBI Payments have been delivered to the Verification Agent as of the Original Closing Date (as to the Initial Solar Assets) or the related Transfer Date (as to any Additional Solar Asset).
d.To the extent the rights to receive PBI Payments and the related Performance Based Incentive Agreement, if any, are not freely assignable without the consent of the related PBI Obligor, or if consent or notice to any Person is required for the grant of a security interest, such consent will have been obtained or notice will have been given as of the Original Closing Date (as to the Initial Solar Assets) or the related Transfer Date (as to any Additional Solar Asset). The PBI Payments are not subject to any law, rule or regulation which would make unlawful the sale, transfer, pledge or assignment of any rights to the PBI Payments within the regulations set forth with respect to such PBI Payments. Immediately prior to the transfer of the rights to the PBI Payments and the related Performance Based Incentive Agreement, if any, to a Financing Fund, the Borrower or SAP, Financing Fund Seller, TEP Resources or the Borrower, as applicable, had full legal and equitable title to such rights, free and clear of all Liens except for Permitted Liens and a Financing Fund or SAP, as applicable, acquired full legal and equitable title to such PBI Payments and the related Performance Based Incentive Agreement, free and clear of all Liens, except for Permitted Liens or Permitted Equity Liens. To the extent that notice is required, upon completion of the assignment of a Performance Based Incentive Agreement to a Financing Fund or SAP, as applicable, the Parent or an affiliate thereof delivered notice to the PBI Obligor indicating that such Financing Fund or SAP, as applicable, is the owner of the related PV System and the payee of the PBI Payment.
e.If a Performance Based Incentive Agreement is required by the laws, rules or regulations governing the obligations of the PBI Obligor to pay the PBI Payments, such Performance Based Incentive Agreement is, or will be, to the best of the knowledge of the Parent, the legal valid and binding payment obligation of the PBI Obligor, enforceable against such PBI Obligor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights
Schedule I-6
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
generally, and except as such enforceability may be limited by general principles of equity (whether considered at law or in equity).
f.The transfer, assignment and pledge of the rights to the PBI Payments is not subject to and will not result in any tax, fee or governmental charge payable by the Borrower to any federal, state or local government, except as paid.
27.Host Customer. The related Solar Services Agreement was (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) either originated or acquired by the Parent or SunStreet in the ordinary course of business and, other than with respect to Solar Assets originated by SunStreet prior to May 6, 2021, in accordance with the applicable Underwriting and Reassignment Credit Policy.
28.Warranties. All Manufacturer Warranties relating to the related PV System are in full force and effect and can be enforced by a Financing Fund, SAP or the Manager (other than with respect to those Manufacturer Warranties that are no longer being honored by the relevant manufacturer with respect to all customers generally, and except as such enforceability may be limited in the future by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally, and except as such enforceability may be limited in the future by general principles of equity (whether considered in a suit at law or in equity).
29.True Lease. The related Solar Service Agreement in the form of a Lease Agreement is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) a “true” lease, as defined in Article 2-A of the UCC.
30.UCC. The related Solar Service Agreement and rights to PBI Payments constitute (or in the case of a New Construction Solar Asset (Non-Identified Customer), will constitute) “general intangibles”, “accounts” or “chattel paper” within the meaning of the applicable UCC and no paper originals with respect to any “chattel paper” or single authoritative copy with respect to “electronic chattel paper” exists. The PV Systems constitute “Equipment” within the meaning of the applicable UCC. Upon the filing of all appropriate financing statements in the proper filing offices in the appropriate jurisdictions, the Administrative Agent will have a first priority perfected security interest in and to the Solar Service Agreements, the rights to PBI Payments and the PV Systems, subject to Permitted Liens and in each case related solely to the SAP Solar Assets.
31.Fixture Filing. If the related PV System is located in California, a NOISEPC has been filed with respect to such PV System pursuant to and in compliance with Cal. Pub. Util. Code §§ 2868-2869. If the related PV System is not located in California, either (i) the Parent utilizes a multiple listing service monitoring platform to monitor potential upcoming changes to the ownership of the real property underlying the PV System or (ii) a precautionary fixture filing on a form UCC-1 has been filed with respect to such PV System in the applicable real property records concerning third-party ownership of the
Schedule I-7
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
PV System. The terms of the related Solar Service Agreement provide (or in the case of a New Construction Solar Asset (Non-Identified Customer), will provide) that the parties thereto agree that the related PV System is not a fixture.
32.PV System Location. The related PV System is installed (or in the case of a Substantial Stage Solar Asset, will be installed) in one of the 50 states of the United States, the District of Columbia or an Approved U.S. Territory.
33.PV System.
a.The related PV System was installed (or in the case of a Substantial Stage Solar Asset, will be installed) on a Single-Family Residential Property, a multi-family home, clubhouse or apartment building in accordance with the applicable Underwriting and Reassignment Credit Policy;
b.Except in the case of a New Construction Solar Asset (Non-Identified Customer) or a New Construction Solar Asset which is not installed on a Single-Family Residential Property, one or more of the Host Customers (i) is an individual that is not deceased and is not a governmental entity, a business, a corporation, institution or other legal entity (a "natural person"); provided, that 5.00% of the Aggregate Discounted Solar Asset Balance may relate to Host Customers that are a limited liability company, corporation, trust, partnership or other legal entity if (A) the Parent has determined that the controlling member of the limited liability company, controlling stockholder of the corporation, trustee of the trust, general partner of the partnership or other equivalent controlling person the legal entity is a natural person and (B) the Parent has performed the same underwriting process in connection with such natural person as it applies to Host Customers that are natural persons; (ii) voluntarily entered into such Solar Service Agreement and not as a result of fraud or identity theft, and (iii) owns the real property on which the PV System is installed in one of the 50 states of the United States, the District of Columbia or an Approved U.S. Territory; provided, that in the case where the Host Customer is a natural person, the residence may be owned by a limited liability company, corporation, trust, partnership or other legal entity for which the Parent has determined that the Host Customer is the controlling member, controlling stockholder, trustee, general partner or other equivalent controlling person).
c.No related Host Customer has notified the Parent or any Affiliate thereof of any damage or other casualty affecting the PV system or home and neither the Parent nor any Affiliate thereof is aware of any other event that has occurred, in each case, that would affect the value or performance of the Solar Asset or the PV System. All parts and materials furnished in connection with the related PV System which are material to the solar energy production performance of such PV System, including but not limited to the Solar Photovoltaic Panels and Inverters,
Schedule I-8
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
are (or in the case of a Substantial Stage Solar Asset, will be) newly manufactured with a manufacturer date no more than 12 months prior to the date the Solar Asset was originated.
34.Hedged SRECs. With respect to all Solar Assets for which the related Host Customer is a resident of either New Jersey or Massachusetts, the Projected SREC Hedge Ratio determined for the SREC Years 2020, 2021 and 2022 does not exceed 85%.
35.Maximum Solar Asset Tenor. The original term to maturity of the Solar Asset does not (or in the case of a New Construction Solar Asset (Non-Identified Customer), will not) exceed 300 months.
36.Host Customer Solvency: Other than with respect to New Construction Solar Assets (Non-Identified Customer), (i) the Host Customer is not a debtor in a bankruptcy case as of the Original Closing Date (in the case of the Initial Solar Assets) or the related Transfer Date (in the case of Additional Solar Assets), and (ii) the Host Customer has not commenced any litigation or asserted any claim in writing challenging the validity or enforceability of the related Solar Service Agreement.
37.No Impairment. Neither the Parent nor any of its Affiliates has done anything to impair the rights of the Borrower, the Administrative Agent or the Lenders in the Collateral or payments with respect thereto.
38.Ownership. A Financing Fund or SAP, as applicable, has full legal and equitable title to (i) the related PV System (or if the related Solar Asset is not yet Placed in Service, will have full legal and equitable title immediately upon the completion of installation of such PV System and approval of a commissioning package submitted by the Approved Installer) and (ii) the related Solar Service Agreement upon execution of such agreement, in each case free and clear of all Liens except for Permitted Liens and Permitted Equity Liens.
39.Final Stage Solar Asset. If such Solar Asset is a Final Stage Solar Asset, such Solar Asset will not be a Final Stage Solar Asset for more than, (i) with respect to a Retrofit Solar Asset, 150 days and (ii) with respect to a New Construction Solar Asset, 180 days, in each case since the date such Solar Asset first constituted a Final Stage Solar Asset.
40.Substantial Stage Solar Asset. If such Solar Asset is a Substantial Stage Solar Asset, (i) such Solar Asset will not be a Substantial Stage Solar Asset for more than, (a) with respect to a Retrofit Solar Asset not located in the East Region, 90 days, (b) with respect to a Retrofit Solar Asset located in the East Region, 120 days and (c) with respect to a New Construction Solar Asset, 120 days, in each case since the date such Solar Asset first constituted a Substantial Stage Solar Asset and (ii) with respect to Retrofit Solar Assets, the related Host Customer has not cancelled the installation of the Solar Asset notwithstanding receipt of the related “notice to proceed.”
Schedule I-9
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
41.Puerto Rico Solar Asset. If such Solar Asset is a Puerto Rico Solar Asset (other than a Puerto Rico Non-Storage Solar Asset), the related PV System relies on one or more Energy Storage Systems and does not rely on the operation of the utility grid in order to operate.
42.Hedged SREC Payments.
a.All applications, forms and other filings required to be submitted in connection with the procurement of Hedged SREC Payments have been properly made in all material respects under applicable law, rules and regulations and the related Eligible Hedged SREC Counterparty has provided a written reservation approval (which may be in the form of electronic mail from the related Eligible Hedged SREC Counterparty) for the payment of Hedged SREC Payments.
b.All conditions to the payment of Hedged SREC Payments by the related Eligible Hedged SREC Counterparty have been satisfied or approved, as applicable, and the Eligible Hedged SREC Counterparty’s payment obligation is an absolute and unconditional obligation of the Eligible Hedged SREC Counterparty that is not, by the terms of the related Hedged SREC Agreement, subject to offset for any reason.
c.Copies of all Hedged SREC Agreements with respect to Hedged SREC Payments have been delivered to the Verification Agent as of the Original Closing Date (as to the Initial Solar Assets) or the related Transfer Date (as to any Additional Solar Asset).
d.To the extent that the rights to receive Hedged SREC Payments and the related Hedged SREC Agreement, if any, are not freely assignable without the consent of the Eligible Hedged SREC Counterparty, or if consent of or notice to any Person is required for the grant of a security interest, such consent will have been obtained or notice will have been given as of the effective date of the applicable Hedged SREC Agreement. The Hedged SREC Payments are not subject to any law, rule or regulation which would make unlawful the sale, transfer, pledge or assignment of any rights to the Hedged SREC Payments within the regulations set forth with respect to such Hedged SREC Payments.
e.If a Hedged SREC Agreement is required by the laws, rules or regulations governing the obligations of the Eligible Hedged SREC Counterparty to pay the Hedged SREC Payments, such Hedged SREC Agreement is, to the best of the knowledge of the Parent, the legal valid and binding payment obligation of the Eligible Hedged SREC Counterparty, enforceable against such Eligible Hedged SREC Counterparty in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally, and except as such
Schedule I-10
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
enforceability may be limited by general principles of equity (whether considered at law or in equity).
f.The transfer, assignment and pledge of the rights to the Hedged SREC Payments is not subject to and will not result in any tax, fee or governmental charge payable by the Borrower to any federal, state or local government, except as paid.
g.The related Hedged SREC Agreement was originated by the Borrower.
43.Delivery of Solar Service Agreement. Except with respect to New Construction Solar Assets (Non-Identified Customer), the related Solar Service Agreement and any amendments or modifications have been converted into an electronic (.pdf) form (an “Electronic Copy”) and delivered to the Verification Agent. Except with respect to New Construction Solar Assets (Non-Identified Customer), the related original (or “authoritative copy” for purposes of the UCC) of the Solar Service Agreement and any amendments or modifications have been destroyed on or before the Original Closing Date (as to the Initial Solar Assets) or the related Transfer Date (as to any Additional Solar Asset) in compliance with the Parent’s document storage policies or, if not destroyed, no other Person has or could obtain possession or control thereof in a manner that would enable such Person to claim priority over the lien of the Administrative Agent.
44.Financing Funds/SAP.
a.Each Tax Equity Facility Document to which any Tax Equity Party is a party is a legal, valid and binding obligation of such Tax Equity Party, enforceable against such Tax Equity Party in accordance with its terms, except as such enforceability may be limited in the future by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally, and except as such enforceability may be limited in the future by general principles of equity (whether considered in a suit at law or in equity). None of the Tax Equity Facility Documents to which a Tax Equity Party is a party has been amended or modified since the effective date of such Tax Equity Facility Documents other than as set forth on Schedule VIII. No Tax Equity Party is party to any material contract, agreement or other undertaking except the Tax Equity Facility Documents and any other contract, agreement or undertaking previously disclosed in writing to the Administrative Agent.
b.All Tax Equity Facility Documents are in full force and effect and no material breach, default or event of default has occurred and is continuing thereunder or in connection therewith, except in either case to the extent that such breach, default or event of default could not reasonably be expected to have a Material Adverse Effect or that could have a material adverse effect on the PV Systems owned by a
Schedule I-11
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Financing Fund or the PV Systems owned by SAP or on the legality, validity or enforceability of the Tax Equity Facility Documents.
c.None of the Managing Members, the Financing Funds or SAP has any indebtedness or other obligations or liabilities, direct or contingent other than as permitted under the Transaction Documents. The Managing Members have full legal and equitable title to the Managing Member Interests free and clear of all Liens.
d.No loan to the Managing Members, the Financing Funds or SAP made or indebtedness incurred prior to the related Original Closing Date remains outstanding.
e.Each of the Managing Members and SAP is a limited liability company that is disregarded for federal income tax purposes.
f.None of the Managing Members, the Financing Funds or SAP is in breach or default under or with respect to any contractual obligation.
g.None of the Managing Members, the Financing Funds or SAP has conducted any business other than the business contemplated by the Tax Equity Facility Documents.
h.No event has occurred under the Tax Equity Facility Documents that would allow a Tax Equity Investor or another member to remove, or give notice of removal of, the related Managing Member, nor has a Managing Member given or received notice of an action, claim or threat of removal.
i.No event or circumstance occurred and is continuing that has resulted or would reasonably be expected result in or trigger any limitation, reduction, suspension or other restriction of the Managing Member Distributions.
j.There are no actions, suits, proceedings, claims or disputes pending or, to the Borrower’s knowledge, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against a Financing Fund, SAP or a Managing Member, or against any of their properties or revenues that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or that could have a material adverse effect on the Solar Assets or on the legality, validity or enforceability of any of the Transaction Documents or any of the Tax Equity Facility Documents.
k.No notice or action challenging the tax structure, tax basis validity, tax characterization or tax-related legal compliance of the Tax Equity Facility or the tax benefits associated with the Tax Equity Facility is ongoing or has been
Schedule I-12
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
resolved in a manner adverse to the Tax Equity Facility or a Managing Member, in each case, that would reasonably be expected to have a material adverse effect on the Tax Equity Facility or a Managing Member.
l.The only holders of equity interests in the Financing Funds are the Managing Members and Tax Equity Investors and other than the Purchase Options or the TEP V-E Withdrawal Right there are no outstanding obligations of the Managing Members or a Tax Equity Investor to repurchase, redeem, or otherwise acquire any membership or other equity interests in the Managing Members and a Tax Equity Investor, as applicable, or to make payments to any person, such as “phantom stock” payments, where the amount thereof is calculated with reference to the fair market value or equity value of the Managing Members and a Tax Equity Investor, as applicable. The class or classes of membership interests that a Financing Fund is authorized to issue and has issued are expressly set forth in its Financing Fund LLCA.
m.Each of the Financing Funds and SAP has filed, or has caused to be filed with the appropriate tax authority, all federal, state and local tax returns that it is required to file and has paid or has caused to be paid all taxes it is required to pay to the extent due; provided, however, that each of the Financing Funds and SAP may contest in good faith any such taxes and, in such event, may permit the taxes so contested to remain unpaid during any period, including appeals, when the Financing Funds and SAP, as applicable, are in good faith contesting the same, so long as such contest is pursued in accordance with the requirements of each applicable Tax Equity Facility Document. There is no action, suit, proceeding, investigation, audit or claim now pending by a taxing authority regarding any taxes relating to the Financing Funds or SAP that could, if made, individually or in the aggregate have a Material Adverse Effect.
n.The Borrower has delivered to the Administrative Agent the most recent financial statements (including the notes thereto) prepared in respect of the Financing Funds and SAP pursuant to the requirements of the Tax Equity Facility Documents, and such financial statements (if any) (a) fairly present in all material respects the financial condition of the Financing Funds and SAP, as applicable, as of the date thereof and (b) have been prepared in accordance with the requirements of Tax Equity Facility Documents. Such financial statements and notes thereto disclose all direct or contingent material liabilities of the Financing Funds and SAP as of the dates thereof, including liabilities for taxes, material commitments and debt.
o.The Financing Funds or SAP, as applicable, is (or in the case of a New Construction Solar Asset (Non-Identified Customer), will be) party to each Solar Service Agreement in respect of each PV System owned by it.
Schedule I-13
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
45.Savings Product. If such Solar Asset is a Host Customer Solar Asset (i) other than with respect to a Puerto Rico Solar Asset and any other Host Customer Solar Assets located in Hawaii, Guam, or the Northern Mariana Islands, the Sunnova Tracking System specifically identifies (or in the case of a New Construction Solar Asset (Non-Identified Customer), will specifically identify) amounts payable under the related Solar Service Agreement that relate to the related PV System (other than any Ancillary PV System Components and any related Energy Storage System, if applicable) and the Sunnova Tracking System indicates that such amounts provide for an annual savings against projected utility electricity costs in the first year of such Host Customer Solar Asset, or (ii) with respect to a Puerto Rico Solar Asset and any other Host Customer Solar Assets located in Hawaii, Guam, or the Northern Mariana Islands, the Sunnova Tracking System indicates (or in the case of a New Construction Solar Asset (Non-Identified Customer), will indicate) that the aggregate PV System Payments for such Solar Asset provide for an annual savings against projected utility electricity costs in the first year of such Host Customer Solar Asset.
46.Takeout Transaction Failure. No Takeout Transaction Failure has occurred with respect to the related Financing Fund.
47.Ancillary PV System Components. If such Solar Asset is not a New Construction Solar Asset (Non-Identified Customer) and the related PV System contains Ancillary PV System Components:
a.the Sunnova Tracking System specifically identifies the portion of the amounts payable under the related Solar Service Agreement that relate to such Ancillary PV System Components and the amounts payable that relate to the PV System (without inclusion of such Ancillary PV System Components) and any related Energy Storage System;
b.the related Solar Service Agreement does not provide that such Ancillary PV System Components will be replaced by the Parent or any affiliate thereof;
c.there is no obligation under the related Solar Service Agreement or other document that requires the Parent or any Affiliate thereof to provide (either directly or indirectly) any operations or maintenance services with respect to such Ancillary PV System Components, except for generators (if any);
d.to the extent such Ancillary PV System Components include a generator (i) the owner of the related Solar Asset shall have executed an operations and maintenance agreement with an affiliate of the Parent in form and substance satisfactory to the Administrative Agent, which operations and maintenance agreement provides for operation and maintenance services for generators, (ii) the Administrative Agent shall have received satisfactory due diligence from an independent engineer supporting the expected operation and maintenance costs
Schedule I-14
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
associated with generators included in Ancillary PV System Components and (iii) the Administrative Agent shall have provided its consent to such inclusion;
e.none of the Borrower or any of its affiliates provide any warranties in respect of such Ancillary PV System Components; and
f.the procurement cost attributable to such Ancillary PV System Components does not exceed 50% of the Total Equipment Cost of the related Solar Asset.
48.New Construction Solar Assets. If such Solar Asset is a New Construction Solar Asset:
a.with respect to a New Construction Solar Asset (Non-Identified Customer), the agreement with the related Homebuilder and guarantor thereof (if any) is (i) a legal, valid and binding obligation of the parties thereto, and (ii) in full force and effect in accordance with its respective terms, except as may be limited in the future by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally, and except as such enforceability may be limited in the future by general principles of equity (whether considered in a suit at law or in equity); and
b.such New Construction Solar Asset may only be owned by SAP if it has been Placed in Service.
49.Special Representations. Any eligibility representations with respect to a Financing Fund set forth in Column H of Schedule XII.
Schedule I-15
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule II
The Collection Account, the Supplemental Reserve Account, the Liquidity Reserve Account, the SAP Lockbox Account, the SAP Revenue Account, the Takeout Transaction Account and the Borrower’s Account
Collection Account
Bank Name: [***]
ABA No.: [***]
Account No.: [***]
Account Name: [***]
FFC: [***]
Supplemental Reserve Account
Bank Name: [***]
ABA No.: [***]
Account No.: [***]
Account Name: [***]
FFC: [***]
Liquidity Reserve Account
Bank Name: [***]
ABA No.: [***]
Acct: [***]
Account Name: [***]
FFC: [***]
SAP Lockbox Account
Bank Name: [***]
ABA No.: [***]
Account No.: [***]
Account Name: [***]
FFC: [***]
SAP Revenue Account
Bank Name: [***]
ABA No.: [***]
Account No.: [***]
Account Name: [***]
FFC: [***]
Schedule II-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Takeout Transaction Account
Bank Name: [***]
ABA No.: [***]
Account No.: [***]
Account Name: [***]
FFC: [***]
Borrower’s Account
Bank Name: [***]
ABA No.: [***]
Account No.: [***]
Account Name: [***]
Reference: [***]
Schedule II-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule III
[Reserved]
Schedule III-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule IV
Scheduled Hedged SREC Payments
[On file with the Administrative Agent]
Schedule IV-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule V
Scheduled Host Customer Payments
[On file with the Administrative Agent]
Schedule V-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule VI
Scheduled PBI Payments
[On file with the Administrative Agent]
Schedule VI-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule VII
Scheduled Managing Member Distributions
[On file with the Administrative Agent]
Schedule VII-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule VIII
Tax Equity Definitions
Financing Funds
1.Sunnova TEP IV-D, LLC, a Delaware limited liability company (“TEP IV-D”)
2.Sunnova TEP IV-E, LLC, a Delaware limited liability company (“TEP IV-E”)
3.Sunnova TEP IV-F, LLC, a Delaware limited liability company (“TEP IV-F”)
4.Sunnova TEP IV-G, LLC, a Delaware limited liability company (“TEP IV-G”)
5.Sunnova TEP V-A, LLC, a Delaware limited liability company (“TEP V-A”)
6.Sunnova TEP V-D, LLC, a Delaware limited liability company (“TEP V-D”)
7.Sunnova TEP V-B, LLC, a Delaware limited liability company (“TEP V-B”)
8.Sunnova TEP V-C, LLC, a Delaware limited liability company (“TEP V-C”)
9.Sunnova TEP V-E, LLC, a Delaware limited liability company (“TEP V-E”)
Financing Fund LLCAs
10.With respect to TEP IV-D, the Amended and Restated Limited Liability Company Agreement, dated as of May 14, 2020, entered into between the applicable Managing Member and the applicable Tax Equity Investor, as amended by that certain Omnibus Amendment, dated as of August 13, 2020, by and among the applicable Managing Member, the applicable Tax Equity Investor, Sunnova TEP Developer, LLC and TEP IV-D, as further amended by that certain Omnibus Amendment #2, dated as of December 23, 2020, by and among the applicable Managing Member, the applicable Tax Equity Investor, Sunnova TEP Developer, LLC and TEP IV-D, and as further amended by that certain Third Amendment to Amended and Restated Limited Liability Company Agreement, dated as of April 12, 2021 (the “TEP IV-D LLCA”)
11.With respect to TEP IV-E, the Amended and Restated Limited Liability Company Agreement, dated as of September 24, 2020, entered into between the applicable Managing Member and the applicable Tax Equity Investor (the “TEP IV-E LLCA”)
12.With respect to TEP IV-F, the Amended and Restated Limited Liability Company Agreement, dated as of July 24, 2020, entered into between the applicable Managing Member and the applicable Tax Equity Investor (the “TEP IV-F LLCA”)
13.With respect to TEP IV-G, the Amended and Restated Limited Liability Company Agreement, dated as of November 9, 2020, entered into between the applicable Managing Member and the applicable Tax Equity Investor, as amended by that certain Amendment to Amended and Restated Limited Liability Company Agreement of Sunnova TEP IV-G, LLC, dated as of March 29, 2021 (the “TEP IV-G LLCA”)
Schedule VIII-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
14.With respect to TEP V-A, the Amended and Restated Limited Liability Company Agreement, dated as of April 27, 2021, entered into between the applicable Managing Member and the applicable Tax Equity Investor (the “TEP V-A LLCA”)
15.With respect to TEP V-D, the Amended and Restated Limited Liability Company Agreement, dated as of April 1, 2021, entered into between the applicable Managing Member and the applicable Tax Equity Investor (the “TEP V-D LLCA”)
16.With respect to TEP V-B, the Amended and Restated Limited Liability Company Agreement, dated as of May 6, 2021, entered into between the applicable Managing Member and the applicable Tax Equity Investor (the “TEP V-B LLCA”)
17.With respect to TEP V-C, the Amended and Restated Limited Liability Company Agreement, dated as of July 9, 2021, entered into between the applicable Managing Member and the applicable Tax Equity Investor (the “TEP V-C LLCA”)
18.With respect to TEP V-E, the Amended and Restated Limited Liability Company Agreement, dated as of October 29, 2021, entered into between the applicable Managing Member and the applicable Tax Equity Investor (the “TEP V-E LLCA”)
Management Agreements
19.Management Agreement, dated as of May 14, 2020 by and between the Manager and TEP IV-D (“TEP IV-D Management Agreement”)
20.Management Agreement, dated as of September 24, 2020 by and between the Manager and TEP IV-E (“TEP IV-E Management Agreement”)
21.Management Agreement, dated as of July 24, 2020 by and between the Manager and TEP IV-F (“TEP IV-F Management Agreement”)
22.Management Agreement, dated as of November 9, 2020 by and between the Manager and TEP IV-G (“TEP IV-G Management Agreement”)
23.Management Agreement, dated as of April 27, 2021 by and between the Manager and TEP V-A (“TEP V-A Management Agreement”)
24.Management Agreement, dated as of April 1, 2021 by and between the Manager and TEP V-D (“TEP V-D Management Agreement”)
25.Management Agreement, dated as of May 6, 2021 by and between the Manager and TEP V-B (“TEP V-B Management Agreement”)
26.Management Agreement, dated as of July 9, 2021 by and between the Manager and TEP V-C (“TEP V-C Management Agreement”)
27.Management Agreement, dated as of October 29, 2021 by and between the Manager and TEP V-E (“TEP V-E Management Agreement”)
Managers
28.Sunnova TE Management, LLC, a Delaware limited liability company
Schedule VIII-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Managing Members
29.Sunnova TEP IV-D Manager, LLC, a Delaware limited liability company
30.Sunnova TEP IV-E Manager, LLC, a Delaware limited liability company
31.Sunnova TEP IV-F Manager, LLC, a Delaware limited liability company
32.Sunnova TEP IV-G Manager, LLC, a Delaware limited liability company
33.Sunnova TEP V-A Manager, LLC, a Delaware limited liability company
34.Sunnova TEP V-D Manager, LLC, a Delaware limited liability company
35.Sunnova TEP V-B Manager, LLC, a Delaware limited liability company
36.Sunnova TEP V-C Manager, LLC, a Delaware limited liability company
37.Sunnova TEP V-E Manager, LLC, a Delaware limited liability company
Managing Member Interests
38.The Class B Interest in TEP IV-D
39.To the extent the TEP IV-D Purchase Option is exercised, the Class A Interest in TEP IV-D
40.The Class B Interest in TEP IV-E
41.To the extent the TEP IV-E Purchase Option is exercised, the Class A Interest in TEP IV-E
42.The Class B Interest in TEP IV-F
43.To the extent the TEP IV-F Purchase Option is exercised, the Class A Interest in TEP IV-F
44.The Class B Interest in TEP IV-G
45.To the extent the TEP IV-G Right of First Offer is exercised, the Class A Interest in TEP IV-G
46.The Class B Interest in TEP V-A
47.To the extent the TEP V-A Purchase Option is exercised, the Class A Interest in TEP V-A
48.The Class B Interest in TEP V-D
49.To the extent the TEP V-D Purchase Option is exercised, the Class A Interest in TEP V-D
Schedule VIII-3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
50.The Class B Interest in TEP V-B
51.To the extent the TEP V-B Right of First Offer is exercised, the Class A Interest in TEP V-B
52.The Class B Interest in TEP V-C
53.To the extent the TEP V-C Purchase Option is exercised, the Class A Interest in TEP V-C
54.The Class B Interest in TEP V-E
55.To the extent the TEP V-E Purchase Option or TEP V-E Withdrawal Right is exercised, the Class A Interest in TEP V-E
Master Purchase Agreements
56.Development and Purchase Agreement, dated as of May 14, 2020, by and between Sunnova TEP Developer, LLC and TEP IV-D, as amended by that certain Omnibus Amendment, dated as of August 13, 2020, by and among the applicable Managing Member, the applicable Tax Equity Investor, Sunnova TEP Developer, LLC and TEP IV-D, and as further amended by that certain Omnibus Amendment #2, dated as of December 23, 2020, by and among the applicable Managing Member, the applicable Tax Equity Investor, Sunnova TEP Developer, LLC and TEP IV-D (“TEP IV-D DPA”)
57.Master Purchase Agreement, dated as of September 24, 2020, by and between Sunnova TEP Developer, LLC and TEP IV-E (“TEP IV-E MPA”)
58.Development and Purchase Agreement, dated as of July 24, 2020, by and between Sunnova TEP Developer, LLC and TEP IV-F, as amended by that certain First Amendment to Development and Purchase Agreement, dated as of December 18, 2020 (“TEP IV-F DPA”)
59.Master Purchase Agreement, dated as of November 9, 2020, by and between Sunnova TEP Developer, LLC and TEP IV-G, as amended by that certain Amendment to Master Purchase Agreement, dated as of June 30, 2021 (“TEP IV-G MPA”)
60.Development and Purchase Agreement, dated as of April 27, 2021, by and between Sunnova TEP Developer, LLC and TEP V-A (“TEP V-A DPA”)
61.Development and Purchase Agreement, dated as of April 1, 2021, by and between Sunnova TEP Developer, LLC and TEP V-D (“TEP V-D DPA”)
62.Master Purchase Agreement, dated as of May 6, 2021, by and between Sunnova TEP Developer, LLC and TEP V-B (“TEP V-B MPA”)
63.Master Purchase Agreement, dated as of July 9, 2021, by and between Sunnova TEP Developer, LLC and TEP V-C (“TEP V-C MPA”)
64.Development and Purchase Agreement, dated as of October 29, 2021, by and between Sunnova TEP Developer, LLC and TEP V-E (“TEP V-E DPA”)
Purchase Options
Schedule VIII-4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
65.“TEP IV-D Purchase Option” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP IV-D
66.“TEP IV-E Purchase Option” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP IV-E
67.“TEP IV-F Purchase Option” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP IV-F
68.“TEP IV-G Right of First Offer” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP IV-G
69.“TEP V-A Purchase Option” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP V-A
70.“TEP V-D Purchase Option” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP V-D
71.“TEP V-B Right of First Offer” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP V-B
72.“TEP V-C Purchase Option” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP V-C
73.“TEP V-E Purchase Option” means the right of the applicable Managing Member or its designated Affiliate to purchase the related Tax Equity Investor’s interest in TEP V-E
Servicing Agreements
74.Servicing Agreement, dated as May 14, 2020, by and among the Manager, TEP IV-D and GreatAmerica Portfolio Services Group LLC (“TEP IV-D Servicing Agreement”)
75.Servicing Agreement, dated as September 24, 2020, by and among the Manager, TEP IV-E and GreatAmerica Portfolio Services Group LLC (“TEP IV-E Servicing Agreement”)
76.Servicing Agreement, dated as July 24, 2020, by and among the Manager, TEP IV-F and GreatAmerica Portfolio Services Group LLC (“TEP IV-F Servicing Agreement”)
77.Servicing Agreement, dated as November 9, 2020, by and among the Manager, TEP IV-G and GreatAmerica Portfolio Services Group LLC (“TEP IV-G Servicing Agreement”)
78.Servicing Agreement, dated as of April 27, 2021, by and among the Manager, TEP V-A and GreatAmerica Portfolio Services Group LLC (“TEP V-A Servicing Agreement”)
79. Servicing Agreement, dated as April 1, 2021, by and among the Manager, TEP V-D and GreatAmerica Portfolio Services Group LLC (“TEP V-D Servicing Agreement”)
80.Servicing Agreement, dated as of May 6, 2021, by and among the Manager, TEP V-B and GreatAmerica Portfolio Services Group LLC (“TEP V-B Servicing Agreement”)
81.Servicing Agreement, dated as of July 9, 2021, by and among the Manager, TEP V-C and GreatAmerica Portfolio Services Group LLC (“TEP V-C Servicing Agreement”)
Schedule VIII-5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
82.Servicing Agreement, dated as of October 29, 2021, by and among the Manager, TEP V-E and GreatAmerica Portfolio Services Group LLC (“TEP V-E Servicing Agreement”)
Tax Equity Financing Documents
TEP IV-D
83.Guaranty, dated as of May 14, 2020, by Parent for the benefit of the applicable Tax Equity Investor
84.TEP IV-D Management Agreement
85.TEP IV-D Servicing Agreement
86.TEP IV-D DPA
87.TEP IV-D LLCA
88.Blocked Account Control Agreement, dated as of May 14, 2020, by and among TEP IV-D, the applicable Tax Equity Investor, and JPMorgan Chase Bank, N.A., a national banking association
TEP IV-E
89.Guaranty, dated as of September 24, 2020, by Parent for the benefit of the applicable Tax Equity Investor
90.TEP IV-E Management Agreement
91.TEP IV-E Servicing Agreement
92.TEP IV-E MPA
93.TEP IV-E LLCA
94.Blocked Account Control Agreement, dated as of September 24, 2020, by and among TEP IV-E, the applicable Tax Equity Investor, and JPMorgan Chase Bank, N.A., a national banking association
TEP IV-F
95.Guaranty, dated as of July 24, 2020, by Parent for the benefit of the applicable Tax Equity Investor
96.TEP IV-F Management Agreement
97.TEP IV-F Servicing Agreement
98.TEP IV-F DPA
Schedule VIII-6
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
99.TEP IV-F LLCA
TEP IV-G
100.Guaranty, dated as of November 9, 2020, by Parent for the benefit of the applicable Tax Equity Investor
101.TEP IV-G Management Agreement
102.TEP IV-G Servicing Agreement
103.TEP IV-G MPA
104.TEP IV-G LLCA
105.Blocked Account Control Agreement, dated as of November 9, 2020, by and among TEP IV-G, the applicable Tax Equity Investor, and JPMorgan Chase Bank, N.A., a national banking association
TEP V-A
106.Guaranty, dated as of April 27, 2021, by Parent for the benefit of the applicable Tax Equity Investor
107.TEP V-A Management Agreement
108.TEP V-A Servicing Agreement
109.TEP V-A DPA
110.TEP V-A LLCA
TEP V-D
111.Guaranty, dated as of April 1, 2021, by Parent for the benefit of the applicable Tax Equity Investor
112.TEP V-D Management Agreement
113.TEP V-D Servicing Agreement
114.TEP V-D DPA
115.TEP V-D LLCA
TEP V-B
116.Guaranty, dated as of May 6, 2021, by Parent for the benefit of the applicable Tax Equity Investor
117.TEP V-B Management Agreement
Schedule VIII-7
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
118.TEP V-B Servicing Agreement
119.TEP V-B DPA
120.TEP V-B LLCA
121.Blocked Account Control Agreement, dated as of May 6, 2021, by and among TEP V-B, the applicable Tax Equity Investor, and JPMorgan Chase Bank, N.A., a national banking association
TEP V-C
122.Guaranty, dated as of July 9, 2021, by Parent for the benefit of the applicable Tax Equity Investor
123.TEP V-C Management Agreement
124.TEP V-C Servicing Agreement
125.TEP V-C MPA
126.TEP V-C LLCA
127.Blocked Account Control Agreement, dated as of July 9, 2021, by and between TEP V-C, the applicable Tax Equity Investor, and JPMorgan Chase Bank, N.A., a national banking association
TEP V-E
128.Guaranty, dated as of October 29, 2021, by Parent for the benefit of the applicable Tax Equity Investor
129.TEP V-E Management Agreement
130.TEP V-E Servicing Agreement
131.TEP V-E DPA
132.TEP V-E LLCA
133.Blocked Account Control Agreement, dated as of October 29, 2021, by and among TEP V-E, the applicable Tax Equity Investor, and JPMorgan Chase Bank, N.A., a national banking association
Tax Equity Investors
134.With respect to TEP IV-D, [***]
135.With respect to TEP IV-E, [***]
136.With respect to TEP IV-F, [***]
Schedule VIII-8
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
137.With respect to TEP IV-G, [***]
138.With respect to TEP V-A, [***]
139.With respect to TEP V-D, [***]
140.With respect to TEP V-B, [***]
141.With respect to TEP V-C, [***]
142.With respect to TEP V-E, [***]
Contribution Agreements
1.With respect to TEP IV-D, Transfer Agreement, dated as of May 14, 2020, by and among Parent, TEP Inventory and Financing Fund Seller
2.With respect to TEP IV-E, (a) Amended and Restated TEP IV-E Contribution Agreement, dated as of March 29, 2021, by and among the Assignors and Financing Fund Seller, and (b) Contribution and Assignment Agreement, dated as of September 24, 2020, by and among Parent, TEP Inventory and Financing Fund Seller
3.With respect to TEP IV-F, Transfer Agreement, dated as of July 24, 2020, by and among Parent, TEP Inventory and Financing Fund Seller
4.With respect to TEP IV-G, Transfer Agreement, dated as of November 9, 2020, by and among Parent, TEP Inventory and Financing Fund Seller
5.With respect to TEP V-A, Transfer Agreement, dated as of April 27, 2021, by and among Parent, TEP Inventory and Financing Fund Seller
6.With respect to TEP V-D, (a) Transfer Agreement, dated as of April 1, 2021, by and among Parent, TEP Inventory and Financing Fund Seller, and (b) Transfer Agreement, dated as of April 1, 2021, by and among Parent, MoonRoad Services Group, LLC, a Delaware limited liability company, SunStreet TEP Inventory, LLC, a Delaware limited liability company, and Financing Fund Seller
7.With respect to TEP V-B, Transfer Agreement, dated as of May 6, 2021, by and among Parent, TEP Inventory and Financing Fund Seller
8.With respect to TEP V-C, Contribution and Assignment Agreement, dated as of July 9, 2021, by and among Parent, TEP Inventory and Financing Fund Seller
9.With respect to TEP V-E, Transfer Agreement, dated as of October 29, 2021, by and among Parent, TEP Inventory and Financing Fund Seller
Major Actions
143.Any actions to be taken pursuant to Section 6.2(b) of the TEP IV-D LLCA
144.Any actions to be taken pursuant to Section 6.03 of the TEP IV-E LLCA
145.Any actions to be taken pursuant to Section 6.03 of the TEP IV-F LLCA
146.Any actions to be taken pursuant to Section 6.03 of the TEP IV-G LLCA
147.Any actions to be taken pursuant to Section 6.03 of the TEP V-A LLCA
148.Any actions to be taken pursuant to Section 6.03 of the TEP V-D LLCA
149.Any actions to be taken pursuant to Section 6.03 of the TEP V-B LLCA
150.Any actions to be taken pursuant to Section 6.03 of the TEP V-C LLCA
151.Any actions to be taken pursuant to Section 6.03 of the TEP V-E LLCA
Schedule VIII-9
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule IX
SAP Financing Documents
1.Management Agreement, dated as of September 6, 2019, by and between Manager and SAP, as may be amended, restated, supplemented or otherwise modified from time to time.
2.Amended and Restated Servicing Agreement, dated as of May 6, 2021, by and among GreatAmerica Portfolio Services Group LLC, Manager and SAP, as may be amended, restated, supplemented or otherwise modified from time to time.
3.Deposit Account Control Agreement, dated as of January 19, 2021, by and among Texas Capital Bank, N.A., SAP and the Administrative Agent.
Schedule IX-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule X
SAP NTP Financing Documents
1.Amended and Restated Master Distribution Agreement, dated as of March 29, 2021, by and among SAP, Borrower, TEP Resources and SAP Seller.
2.TEP OpCo Contribution Agreement.
3.Returned Project Distribution Agreement, dated as of March 29, 2021, by and between SAP Seller and Financing Fund Seller.
Schedule X-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule XI
Puerto Rico Non-Storage Solar Assets
[On file with the Administrative Agent]
Schedule XI-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule XII
Special Financing Fund Provisions
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| Column A | Column B | Column C | Column D | Column E | Column F | Column G | Column H |
| Financing Fund | Solar Assets that are not Puerto Rico Solar Assets or Substantial Stage Solar Assets | Puerto Rico Solar Assets that are not Substantial Stage Solar Assets | Substantial Stage Solar Assets | Class A Borrowing Base Multiplier | Class B Borrowing Base Multiplier | Included in calculation of SRECs available for delivery in “Projected SREC Hedge Ratio” | Takeout Transaction Failure | Special Eligibility Representations |
SAP TEP IV- D TEP IV-E TEP IV-F TEP V-A TEP V-D TEP V-E | 87.500% | 75.000% | 70.000% | [***] | [***] | Yes | N/A | N/A |
| TEP IV-G | 65.000% | 55.714% | 52.000% | [***] | [***] | No | the date of 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) | the “Class A Capital Contribution Commitment” (as defined in the Financing Fund LLCA of TEP IV-G) has not been increased since November 9, 2020. |
Schedule XII-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
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| Column A | Column B | Column C | Column D | Column E | Column F | Column G | Column H |
| Financing Fund | Solar Assets that are not Puerto Rico Solar Assets or Substantial Stage Solar Assets | Puerto Rico Solar Assets that are not Substantial Stage Solar Assets | Substantial Stage Solar Assets | Class A Borrowing Base Multiplier | Class B Borrowing Base Multiplier | Included in calculation of SRECs available for delivery in “Projected SREC Hedge Ratio” | Takeout Transaction Failure | Special Eligibility Representations |
| TEP V-B | 65.000% | 55.714% | 52.000% | [***] | [***] | No | the date of the second 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 V-B) and (iii) the occurrence of the “Placed-in-Service Date” (under and as defined in the Financing Fund LLCA of TEP V-B) with respect to the last “Project” (as defined in the Financing Fund LLCA of TEP V-B) | the “Class A Capital Contribution Commitment” (as defined in the Financing Fund LLCA of TEP V-B) has not been increased since May 6, 2021. |
Schedule XII-2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Schedule XIII
Approved Tax Equity Partners
1.[***]
2.[***]
3.[***]
4.[***]
5.[***]
6.[***]
7.[***]
8.[***]
9.[***]
Schedule XIII-1
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.