EX-10.38 5 vslr-ex1038_462.htm EX-10.38 vslr-ex1038_462.htm

Certain portions of this document have been omitted pursuant to a request for Confidential Treatment and, where applicable, have been marked with “[***]” to indicate where omissions have been made.  The confidential material has been filed separately with the Securities and Exchange Commission.

 

Exhibit 10.38

 

Execution Version

 

************************************************************


FIXED RATE LOAN AGREEMENT


Dated as of January 5, 2017


among


VIVINT SOLAR FINANCING III, LLC,
as Borrower

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent

and

THE LENDERS PARTY TO THIS AGREEMENT
FROM TIME TO TIME


************************************************************

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


 

TABLE OF CONTENTS

This Table of Contents is not part of the Agreement to which it is attached but is inserted for convenience only.

ARTICLE I. DEFINITIONS AND INTERPRETIVE MATTERS

 

2

 

 

Section 1.01

Definitions

 

2

 

 

Section 1.02

Accounting Terms and Determinations

 

44

 

 

Section 1.03

Time of Day

 

45

 

 

Section 1.04

Rules of Construction

 

45

 

 

ARTICLE II. COMMITMENTS AND LOANS

 

46

 

 

Section 2.01

Commitments

 

46

 

 

Section 2.02

Notes

 

47

 

 

Section 2.03

Agency Fee

 

48

 

 

Section 2.04

Several Obligations; Remedies Independent

 

48

 

 

ARTICLE III. PAYMENTS OF PRINCIPAL AND INTEREST

 

48

 

 

Section 3.01

Repayment of Loans

 

48

 

 

Section 3.02

Interest on the Loans

 

48

 

 

Section 3.03

Optional Prepayments

 

49

 

 

Section 3.04

Mandatory Prepayments

 

49

 

 

Section 3.05

Additional Conditions of Prepayment

 

51

 

 

ARTICLE IV. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.

 

51

 

 

Section 4.01

Payments

 

51

 

 

Section 4.02

Pro Rata Treatment

 

52

 

 

Section 4.03

Computations

 

52

 

 

Section 4.04

Minimum Amounts

 

53

 

 

Section 4.05

Certain Notices

 

53

 

 

Section 4.06

Set Off; Sharing of Payments; Etc.

 

53

 

 

 

ARTICLE V. ADDITIONAL PROVISIONS APPLICABLE TO LOANS

 

54

 

 

Section 5.01

Increased Costs

 

54

 

 

Section 5.02

Taxes

 

55

 

 

Section 5.03

Mitigation of Obligations

 

60

 

 

Section 5.04

Source of Funds Representations of the Lenders

 

61

 

 

ARTICLE VI. CONDITIONS PRECEDENT

 

62

 

 

Section 6.01

Conditions of Borrowing

 

62

 

 

ARTICLE VII. REPRESENTATIONS AND WARRANTIES

 

69

 

 

Section 7.01

Organization, Powers, Capitalization, Good Standing, Business

 

69

 

 

Section 7.02

Authorization of Borrowing, etc.

 

70

 

 

Section 7.03

Title to Membership Interests

 

70

 

 

Section 7.04

Governmental Authorization; Compliance with Laws

 

72

 

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


ii

 

Section 7.05

Solvency

 

73

 

 

Section 7.06

Use of Proceeds and Margin Security; Governmental Regulation

 

73

 

 

Section 7.07

Defaults; No Material Adverse Effect

 

73

 

 

Section 7.08

Financial Statements; Books and Records

 

73

 

 

Section 7.09

Indebtedness

 

74

 

 

Section 7.10

Litigation; Adverse Facts

 

74

 

 

Section 7.11

Taxes and Tax Status

 

74

 

 

Section 7.12

Performance of Agreements

 

75

 

 

Section 7.13

ERISA

 

75

 

 

Section 7.14

Insurance

 

76

 

 

Section 7.15

Investments

 

76

 

 

Section 7.16

Environmental Matters

 

76

 

 

Section 7.17

[Reserved]

 

76

 

 

Section 7.18

Representations Under Other Loan Documents

 

77

 

 

Section 7.19

Broker’s Fee

 

77

 

 

Section 7.20

Foreign Assets Control Regulation

 

77

 

 

Section 7.21

Property Rights

 

77

 

 

Section 7.22

Portfolio Documents and Eligible Projects

 

78

 

 

Section 7.23

Security Interests.

 

81

 

 

Section 7.24

Intellectual Property

 

81

 

 

Section 7.25

Full Disclosure

 

81

 

 

Section 7.26

No Other Bank Accounts

 

82

 

 

ARTICLE VIII. AFFIRMATIVE COVENANTS

 

82

 

 

Section 8.01

Financial Statements and Other Reports

 

82

 

 

Section 8.02

Notice of Events of Default

 

88

 

 

Section 8.03

Maintenance of Books and Records

 

89

 

 

Section 8.04

Litigation

 

89

 

 

Section 8.05

Existence; Qualification

 

89

 

 

Section 8.06

Tax Status

 

89

 

 

Section 8.07

Operation and Maintenance

 

90

 

 

Section 8.08

Preservation of Rights; Maintenance of Projects; Warranty Claims; Security

 

90

 

 

Section 8.09

Compliance with Laws; Environmental Laws

 

92

 

 

Section 8.10

Energy Regulatory Laws

 

92

 

 

Section 8.11

Payment of Claims

 

93

 

 

Section 8.12

Maintenance of Insurance

 

93

 

 

Section 8.13

Inspection

 

97

 

 

Section 8.14

Reserved

 

97

 

 

Section 8.15

Collateral Accounts; Collections

 

97

 

 

Section 8.16

Performance of Agreements

 

98

 

 

Section 8.17

Customer Agreements and SREC Contracts

 

98

 

 

Section 8.18

Management Agreement

 

98

 

 

Section 8.19

Use of Proceeds

 

99

 

 

Section 8.20

Project Expenditures

 

99

 

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


iii

 

Section 8.21

Tax Equity Fund Matters

 

99

 

 

Section 8.22

Post-Closing Covenant

 

99

 

 

Section 8.23

Termination of Fund Provider

 

100

 

 

Section 8.24

Deposits to Collections Account

 

100

 

 

Section 8.25

Tax Partnership Election

 

102

 

 

Section 8.26

Credit Rating

 

102

 

 

Section 8.27

Separateness

 

102

 

 

Section 8.28

ITC Insurance Policy

 

104

 

 

ARTICLE IX. NEGATIVE COVENANTS

 

104

 

 

Section 9.01

Indebtedness

 

104

 

 

Section 9.02

No Liens

 

105

 

 

Section 9.03

Restrictions on Fundamental Changes

 

105

 

 

Section 9.04

[Reserved]

 

105

 

 

Section 9.05

ERISA

 

105

 

 

Section 9.06

Restricted Payments

 

105

 

 

Section 9.07

Limitation on Investments

 

106

 

 

Section 9.08

Sanctions and Anti-Corruption

 

106

 

 

Section 9.09

No Other Business; Leases

 

106

 

 

Section 9.10

Portfolio Documents

 

107

 

 

Section 9.11

ITC Matters

 

109

 

 

Section 9.12

Expenditures; Collateral Accounts; Structural Changes

 

110

 

 

Section 9.13

SREC Contracts and Transfer Instructions

 

111

 

 

Section 9.14

Speculative Transactions

 

111

 

 

Section 9.15

Voting on Major Decisions

 

111

 

 

Section 9.16

Transactions with Affiliates

 

111

 

 

Section 9.17

Tax Partnership Election

 

111

 

 

Section 9.18

ITC Insurance Policy

 

111

 

 

ARTICLE X. EVENTS OF DEFAULT; REMEDIES

 

112

 

 

Section 10.01

Events of Default

 

112

 

 

Section 10.02

Acceleration and Remedies

 

115

 

 

ARTICLE XI. THE ADMINISTRATIVE AGENT

 

117

 

 

Section 11.01

Appointment, Powers and Immunities

 

117

 

 

Section 11.02

Reliance by Administrative Agent

 

120

 

 

Section 11.03

Defaults and Events of Default

 

120

 

 

Section 11.04

[Reserved]

 

120

 

 

Section 11.05

Non-Reliance on Agent

 

120

 

 

Section 11.06

Failure to Act

 

121

 

 

Section 11.07

Resignation or Removal of Administrative Agent

 

121

 

 

Section 11.08

Collateral Agency Agreement and Depositary Agreement

 

122

 

 

Section 11.09

Merger

 

122

 

 

Section 11.10

Wells Fargo Bank, National Association

 

122

 

 

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


iv

ARTICLE XII. MISCELLANEOUS

 

122

 

 

Section 12.01

No Waiver

 

122

 

 

Section 12.02

Notices

 

123

 

 

Section 12.03

Expenses; Etc

 

123

 

 

Section 12.04

Amendments; Etc

 

126

 

 

Section 12.05

Successors and Assigns

 

127

 

 

Section 12.06

Marshalling

 

131

 

 

Section 12.07

Treatment of Certain Information; Confidentiality

 

131

 

 

Section 12.08

Survival

 

132

 

 

Section 12.09

Captions

 

132

 

 

Section 12.10

Counterparts; Integration; Effectiveness

 

132

 

 

Section 12.11

Reinstatement

 

132

 

 

Section 12.12

No Third Party Beneficiaries; Non-Reliance on Other Lenders

 

133

 

 

Section 12.13

Governing Law; Submission to Jurisdiction

 

133

 

 

Section 12.14

Waiver of Jury Trial

 

133

 

 

Section 12.15

Patriot Act

 

133

 

 

Section 12.16

Contractual Recognition of Bail-In

 

134

 

 

Section 12.17

Authorization.

 

134

 

 


FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


v

APPENDICES, SCHEDULES AND EXHIBITS

 

APPENDIX A

-Lender Commitments

APPENDIX B

-Loan Amortization Schedule

APPENDIX C

-Addresses for Notices

APPENDIX D

-Projected Repayment Factor

 

 

SCHEDULE A

-Project Information

SCHEDULE 7.03(e)

-Organizational Structure prior to the Closing Date

SCHEDULE 7.03(f)

-Organizational Structure following the Closing Date

SCHEDULE 7.03(g)

-Subsidiaries

SCHEDULE 7.04

-Governmental Authorization; Compliance with Laws

SCHEDULE 7.08

-Financial Statement Exceptions

SCHEDULE 7.10

-Litigation; Adverse Facts

SCHEDULE 7.14

-Insurance

SCHEDULE 7.19

-Brokers

SCHEDULE 7.22(a)

-Portfolio Documents

SCHEDULE 7.22(e)

-Portfolio Document Exceptions

SCHEDULE 7.22(q)

-Project States

 

EXHIBIT A

-Form of Note

EXHIBIT B

-Form of Notice of Borrowing

EXHIBIT C

-Form of Collateral Agency Agreement

EXHIBIT D

-Form of Depositary Agreement

EXHIBIT E

-[Reserved]

EXHIBIT F

-Form of Assignment and Assumption Agreement of Loans/Commitments

EXHIBIT G

-Terms of Subordination

EXHIBIT H

-Form of Officer’s Certificate

EXHIBIT I

-Form of Scheduled Payment Date Report

EXHIBIT J

-Form of Financial Statement Certificate

EXHIBIT K

-Initial Budget

EXHIBIT L

-Base Case Model

EXHIBIT M

-Form of Manager’s Report

EXHIBIT N

-Form of ITC Insurance Policy

EXHIBIT O-1

-Form of U.S. Tax Compliance Certificate

EXHIBIT O-2

-Form of U.S. Tax Compliance Certificate

EXHIBIT O-3

-Form of U.S. Tax Compliance Certificate

EXHIBIT O-4

-Form of U.S. Tax Compliance Certificate

 

ANNEX A

-Fund Representations

 

 

 

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


 

This FIXED RATE LOAN AGREEMENT (this “Agreement”), dated as of January 5, 2017, is made among Vivint Solar Financing III, LLC, a Delaware limited liability company (the “Borrower”), each Person that is a signatory to this Agreement identified as a “Lender” on the signature pages to this Agreement or that, pursuant to Section 12.05 (Successors and Assigns), shall become a “Lender” under this Agreement (individually, a “Lender” and, collectively, the “Lenders” or the “Lenders”) and Wells Fargo Bank, National Association, as Administrative Agent for the Lenders (in such capacity, and together with its successors and permitted assigns, the “Administrative Agent”).

RECITALS

WHEREAS, Vivint Solar, Inc., a Delaware corporation (the “Sponsor”), indirectly owns 100% of the membership interests in Vivint Solar Financing III Parent, LLC, a Delaware limited liability company (“Pledgor”);

WHEREAS, Pledgor owns 100% of the membership interests in the Borrower;

WHEREAS, the Borrower owns 100% of the membership interests in each of the Partnership Flip Manager Guarantors, the Lessor Manager Guarantor and the SREC Guarantor;

WHEREAS, each Partnership Flip Manager Guarantor owns 100% of the Fund Manager Membership Interests in each Partnership Flip Fund and the Lessor Manager Guarantor owns 100% of the Fund Manager Membership Interests in the Lessor;

WHEREAS, each of the Partnership Flip Funds and the Lessor owns certain residential photovoltaic systems that are the subject of a Customer Agreement, whereby the Customer thereunder either purchases Energy produced by the system or leases the system;

WHEREAS, the Lessor leases the residential photovoltaic systems it owns to the Lessee pursuant to the Master Lease Agreement; and

WHEREAS, the Borrower desires that the Lenders make a loan in an aggregate principal amount equal to the Commitment, secured and supported by, among other things, a guaranty from each of the Guarantors and all other Property and Assets of the Guarantors and Membership Interests of the Owned Funds, as set forth herein and in the other Loan Documents.

NOW, THEREFORE, in consideration of the premises and the respective representations, warranties, covenants, agreements, and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrower, the Administrative Agent, and the Lenders hereby agree as follows:


FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Article I. Definitions and Interpretive Matters

.

Section 1.01Definitions.  Except as otherwise specified in this Agreement or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Agreement (including in the Recitals hereto).

Acceptable Audit Election Provision” means, with respect to a Partnership Flip Fund, a provision contained in the applicable Limited Liability Company Agreement that provides, if such Partnership Flip Fund receives a notice of final partnership administrative adjustment that would, with the passing of time, result in an “imputed underpayment” imposed on such Partnership Flip Fund as that term is defined in Code Section 6225 (as amended by the Budget Act), then, any member may, or may cause such Partnership Flip Fund (by directing the “tax representative” or otherwise), and no other member shall have any right to block such member’s request, (x) to elect pursuant to Code Section 6226 (as amended by the Budget Act) to make inapplicable to such Partnership Flip Fund the requirement in Code Section 6225 (as amended by the Budget Act) to pay the “imputed underpayment” as that term is used in that section and (y) to comply with all of the requirements and procedures required in connection with such election.

Acceptable Bank” shall mean any bank, trust company or other financial institution which is organized or licensed under the applicable Laws of the United States of America or Canada or any state, province or territory thereof which has a tangible net worth of at least five hundred million Dollars ($500,000,000) and has at least one of the following Credit Ratings:  “A-” or better by S&P or “A3” or better by Moody’s.

Acceptable DSR Letter of Credit” shall have the meaning given to such term in the Depositary Agreement.

Administrative Agent” shall have the meaning given to such term in the preamble hereto, and include any successor Administrative Agents pursuant to Section 11.07 (Resignation or Removal of Administrative Agent).

Administrative Agent’s Office” shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Appendix C (Addresses for Notices), or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

Administrative Services” shall mean the services provided by a Fund Provider under its applicable Administrative Services Agreement.

Administrative Services Agreements” shall mean individually or collectively, as the context requires, each agreement listed under the heading “Administrative Services Agreements” on Schedule 7.22(a) (Portfolio Documents) and any replacement administrative services agreement entered into in accordance with Section 9.10(d) (Portfolio Documents).

Administrative Questionnaire” shall mean an administrative questionnaire in the form furnished by the Administrative Agent.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Affiliate” shall mean, 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, “control” when used with respect to any Person shall mean the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” shall have meanings correlative to the foregoing.  For the avoidance of doubt, each of the Relevant Parties is an Affiliate of the other Relevant Parties.  In no event shall (a) the Administrative Agent or Collateral Agent be considered an Affiliate of another Person solely because any Loan Document contemplates that it shall act at the instruction of any such Person or such Person’s Affiliate, or (b) any Tax Equity Member be considered an Affiliate of a Relevant Party.

Affiliate Transaction” shall have the meaning given to such term in Section 9.16 (Transactions with Affiliates).

Affiliated Lender” shall have the meaning given to such term in Section 12.05(b)(v) (Prohibited Assignments).

Agency Expense Cap” shall mean $100,000 per annum.

Agency Expenses” shall mean the expenses and indemnification payments to the Agents, and certain other persons related to the same as described under the Loan Documents.  For the avoidance of doubt, Agency Expenses shall not include Service Fees or amounts payable to the Manager under the Management Agreement.

Agency Fee” shall have the meaning assigned to that term in Section 2.03 (Agency Fee).

Agency Fee Letter” shall mean the fee letter dated as of November 17, 2016 and  executed by the Borrower on November 29, 2016, among the Borrower and the Agents.

Agents” shall mean, collectively, the Administrative Agent, the Collateral Agent and the Depositary Agent.

Aggregation Facility” shall mean the Amended and Restated Loan Agreement dated as of September 12, 2014, as amended and restated as of November 25, 2015, as amended by Amendment No. 1, dated December 9, 2015, Amendment No. 2, dated January 15, 2016 and Amendment No. 3, dated March 7, 2016 by and among Aggregation Facility Borrower, Vivint Solar Holdings, Inc., the guarantors party thereto, the lenders party thereto, and Bank of America, N.A., as collateral and administrative agent, as amended, modified, supplemented or restated from time to time.

Aggregation Facility Administrative Agent” shall mean Bank of America, N.A.

Aggregation Facility Borrower” shall mean Vivint Solar Financing I, LLC, a Delaware limited liability company.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


- 4 -

Aggregation Facility Collateral Agent” shall mean Bank of America, N.A.

Aggregator SRECs” shall mean the SRECs transferred from a Fund to SREC Guarantor pursuant to the Fund XVIII SREC Transfer Agreement (as such term is defined in Schedule 7.22(a) (Portfolio Documents)).

Agreement” shall have the meaning assigned to that term in the preamble.

Amortization Schedule” shall mean the amortization schedule attached as Appendix B (Loan Amortization Schedule).

Anti-Corruption Laws” shall mean any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.

Anti-Money Laundering Laws” shall mean any applicable law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking or terrorism financing, including the Bank Secrecy Act (31 CFR 5311 et seq.), as amended by the Patriot Act.

Approved Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Assets” shall mean, with respect to any Person, all right, title and interest of such Person in land, Properties, buildings, improvements, fixtures, foundations, assets and rights of any kind, whether tangible or intangible, real, personal or mixed, including contracts, equipment, systems, books and records, proprietary rights, intellectual property, Permits, rights under or pursuant to all warranties, representations and guarantees, cash, accounts receivable, deposits and prepaid expenses.

Assignment Agreement” shall mean the Assignment and Assumption Agreement, dated as of the date hereof, by and between the Aggregation Facility Borrower and the Borrower.

Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an assignee lender (with the consent of any party whose consent is required by Section 12.05 (Successors and Assigns)), and accepted by the Administrative Agent, in substantially the form of Exhibit F (Form of Assignment and Assumption Agreement of Loans/Commitments) or any other form approved by the Administrative Agent.

Authorized Officer” shall mean:  (a) in relation to any Relevant Party, for so long as the Management Agreement is in full force and effect, any officer of the Manager who is authorized to act for the Manager in matters relating to the Borrower and the Subsidiaries and to be acted upon by the Manager pursuant to the Management Agreement, and who is identified on the list of Authorized Officers delivered by the Borrower to the Administrative Agent on the

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Closing Date (as such list may be modified or supplemented from time to time thereafter by delivery to the Administrative Agent of a duly executed officer’s certificate and an incumbency certificate of the Borrower) and (b) in relation to any Relevant Party, any director, member or officer who is a natural Person authorized to act for or on behalf of the applicable Relevant Party in matters relating to such Relevant Party and who is identified on the list of Authorized Officers delivered by such Relevant Party to the Administrative Agent on the Closing Date (as such list may be modified or supplemented from time to time thereafter by delivery to the Administrative Agent of a duly executed officer’s certificate and an incumbency certificate of such Relevant Party).

Back-Up Servicer” shall mean Wells Fargo Bank, National Association, and its successors and assigns as Back-Up Servicer under each Back-Up Servicing Agreement.

Back-Up Servicing Agreement” shall mean (i) the Master Back-Up Servicing Agreement as modified by each applicable Back-Up Servicing Agreement Addendum and (ii) each replacement for each such agreement entered into in accordance with Section 9.10(d) (Portfolio Documents).

Back-Up Servicing Agreement Addendum” shall mean each addendum under the Master Back-Up Servicing Agreement entered into among the Back-Up Servicer, Provider and the applicable Fund, listed under the heading “Back-Up Servicing Agreement Addenda” on Schedule 7.22(a) (Portfolio Documents).

Bail-In Action” shall mean the exercise of any Write-down and Conversion Powers.

Bail-In Legislation” shall mean:

(a)in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms (as amended or re-enacted), the relevant implementing law or regulation (including any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organization) as described in the EU Bail-In Legislation Schedule from time to time; and

(b)in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

Bankruptcy Code” shall mean Title 11 of the United States Code, as amended from time to time, and all rules and regulations promulgated thereunder.

Base Case Model” shall mean the comprehensive long-term financial model delivered on the Closing Date and attached as Exhibit L (Base Case Model) to this Agreement, reflecting among other things (i) quarterly payment periods ending on each Scheduled Payment

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Date and (ii) the projected Net Cash Flow from the Projects in the Project Pool, Debt Service after giving effect to the transactions contemplated by the Transaction Documents, the making of the Loans, covering the period from the Closing Date until the Final Maturity Date.  All amounts determined in accordance with the Base Case Model shall be determined assuming a P50 Production and shall take into account (i) Eligible Revenues and (ii) all Operating Expenses with respect to the Project Pool.

Board” shall mean the Board of Governors of the Federal Reserve System.

Borrower” shall have the meaning assigned to such term in the preamble.

Borrower Collateral Agreement” shall mean that certain pledge and security agreement dated as of the Closing Date by and between the Borrower and the Collateral Agent for the benefit of the Secured Parties.

Borrower Membership Interests” shall mean all of the outstanding limited liability company interests issued by the Borrower (including all Economic Interests and Voting Rights).

BP SREC Consent” shall mean that certain consent and acknowledgment dated as of January 5, 2017 by and between BP Energy Company, a Delaware corporation, the SREC Seller Parties and the Collateral Agent for the benefit of the Secured Parties, as acknowledged by BP Corporation North America Inc. (as buyer guarantor) and SREC Guarantor.

Budget Act” shall mean the Bipartisan Budget Act of 2015 (P.L. 114-74).

Business Day” shall mean any day on which commercial banks are not authorized or required to be closed in New York, New York and Maryland and, if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, a Loan or a notice by the Borrower with respect to any such borrowing, payment or prepayment.

Calculation Date” shall mean each of March 31, June 30, September 30 and December 31 of each year falling after the date hereof.

Capital Stock” shall mean:

(a)in the case of a corporation, corporate stock;

(b)in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c)in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

(d)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, the issuing Person including, all warrants, options or other rights to acquire any of the foregoing.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” shall occur if

(a)(i) the Sponsor and/or Qualified Purchaser(s) shall cease to directly or indirectly own, beneficially and of record, 100% of the Pledgor Membership Interests, (ii) Sponsor or a Qualified Purchaser, directly or indirectly through Pledgor, shall cease to have management control of the Borrower, (iii) Sponsor shall cease to directly or indirectly own, beneficially and of record, at least (x) 25% or (y) at all times after the Wholly-Owned Fund Perfection Date, 5%, in each case, of the Pledgor Membership Interests or (iv) Sponsor shall cease to directly or indirectly own, beneficially and of record, at least 50.1% of the issued and outstanding equity interests in Provider;

(b)the Borrower shall cease to directly own, beneficially and of record, 100% of the Guarantor Manager Membership Interests;

(c)Pledgor shall cease to, directly or indirectly, beneficially and of record, own 100% of the Borrower Membership Interests; or

(d)the Lessor Manager Guarantor or any Partnership Flip Manager Guarantor shall cease to directly own, beneficially and of record, 100% of the applicable Fund Manager Membership Interests.

Claims” shall have the meaning assigned to that term in Section 8.11 (Payment of Claims).

Closing Date” shall mean the date on which all conditions precedent set forth in Section 6.01 (Conditions of Borrowing) have been satisfied (or waived by the Lenders).

Closing Date Assignment Agreements” shall mean each of (i) the Assignment Agreement, (ii) the Consent Termination Agreements, (iii) the Fund Termination Agreements and (iv) the Payoff Letter.

Closing Date Assignments” shall mean the assignments contemplated under the Closing Date Assignment Agreements such that the Guarantor Manager Membership Interests are all under the ownership of the Borrower.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Closing Date Funds Flow Memorandum” shall have the meaning given to such term in the Depositary Agreement.

Code” shall mean the United States Internal Revenue Code of 1986, and the regulations promulgated pursuant thereto, all as amended or as may be amended from time to time.

Collateral” shall mean the Assets and Property of, and equity interests in, the Borrower and each Guarantor and each SREC Seller Party’s interest in its respective Eligible SREC Contracts, which is now owned or hereafter acquired upon which a Lien is or is purported to be created by any Collateral Document and shall include, without limitation, all Assets and Property included within the terms “Collateral”, “Depositary Collateral”, “Collateral Account” and “Pledged Collateral”, as applicable, in the Collateral Documents all of which collectively constitute the “Collateral”; provided, that Excluded Property and Fund SREC Property shall be excluded from Collateral hereunder and under all Collateral Documents.

Collateral Accounts” shall have the meaning have the meaning given to such term in the Depositary Agreement.

Collateral Agency Agreement” shall mean the Collateral Agency Agreement dated as of the Closing Date, among the Borrower, the Administrative Agent and the Collateral Agent and substantially in the form of Exhibit C (Form of Collateral Agency Agreement)

Collateral Agent” shall mean Wells Fargo Bank, National Association, and its successors and permitted assigns in such capacity.

Collateral Documents” shall mean, collectively, the Pledge Agreement, the Borrower Collateral Agreement, the Guarantor Collateral Agreement, the SREC Security Agreement, the Collateral Agency Agreement, the Depositary Agreement, the Tax Equity Consents and Notices, the SREC Consents, the Management Consent Agreement and each other collateral document, pledge agreement, account control agreement or standing instruction delivered to the Administrative Agent pursuant to Section 8.08 (Preservation of Rights; Maintenance of Projects; Warranty Claims; Security) and Section 6.01(a) (Conditions of Borrowing), any other document or agreement that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

Collections” shall mean without duplication (a) with respect to the Wholly-Owned Funds, the related (i) Rents, including all scheduled payments and prepayments under any Customer Agreement, (ii) all proceeds of SRECs and SREC Contracts, (iii) pending assumption of a Customer Agreement relating to a Project, payments of Rent relating to such Project by lenders with respect to, or subsequent owners of, the Property where such Project has been installed, (iv) proceeds of the sale, assignment or other disposition of any Collateral, (v) insurance proceeds and proceeds of any warranty claims arising from manufacturer, installer and other warranties, in each case, with respect to any Projects, (vi) all recoveries including all amounts received in respect of litigation settlements and work-outs, (vii) all purchase and lease prepayments received from a Customer with respect to any Project, and (viii) all other revenues,

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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receipts and other payments to such Wholly-Owned Funds of every kind whether arising from their ownership, operation or management of the Projects, (b) with respect to any Guarantor (other than the SREC Guarantor), all distributions with respect to the Fund Membership Interests, (c) with respect to the SREC Guarantor, all payments in connection with SRECs and SREC Contracts, (d) amounts contributed or otherwise paid by Sponsor to Borrower and (e) interest earned on amounts deposited in the Collateral Accounts during the relevant period; provided, that the Collections shall not include any Excluded Property or Fund SREC Property.

Collections Account” shall have the meaning given to such term in the Depositary Agreement.

Commitment” shall mean, for each Lender, the obligation of such Lender to make a Loan up to an aggregate principal amount equal to the amount set forth under such Lender’s name on Appendix A (Lender Commitments) opposite the heading “Commitment” (as the same may be adjusted from time to time as a consequence of an assignment in accordance with Section 12.05 (Successors and Assigns)).  The aggregate amount of the Commitments of the Lenders on the Closing Date is $203,750,000.

Communications” shall have the meaning assigned to that term in Section 8.01(g) (Data Site).

Competitor” means any Person directly or through its Affiliates engaged in the business of owning, managing, operating, maintaining or developing renewable energy systems for use in distributed generation applications (whether residential or commercial) in the United States; provided, that (x) a Person who is involved in such activities solely as a result of such Person being engaged as a back-up servicer or transition manager (including Wells Fargo Bank, National Association or U.S. Bank National Association) or as a result of making passive investments (including tax equity investments) in such activities or (y) each Lender party hereto as of the Closing Date, and each Affiliate of each such Lender, shall, in each case, not be considered a “Competitor” hereunder.

Consent Termination Agreements” shall mean each of (i) the Termination Agreement, dated as of the date hereof, by and among the Aggregation Facility Borrower, Fund XI Guarantor, the Aggregation Facility Collateral Agent, Firstar Development, LLC and USB VS SIF, LLC, (ii) the Termination Agreement, dated as of the date hereof, by and among the Aggregation Facility Borrower, Fund XIII Guarantor, the Aggregation Facility Collateral Agent and Firstar Development, LLC, and (iii) the Termination Agreement, dated as of the date hereof, by and among the Aggregation Facility Borrower, Fund XVIII Guarantor, the Aggregation Facility Collateral Agent and BAL Investment & Advisory, Inc.

Credit Rating” shall mean, with respect to any Person, the rating by a Rating Agency or any other rating agency agreed to by the Parties then assigned to such Person’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such Person as an issuer rating by a Rating Agency or any other rating agency

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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approved with the consent of the Administrative Agent (acting on the written instructions of the Majority Lenders).

Credit Requirements” shall mean, with respect to any Person, that such Person has at least one of the following Credit Ratings:  “Baa2” (outlook stable and not on credit watch for downgrade) or higher from Moody’s, “BBB-” (outlook stable and not on credit watch for downgrade) from S&P or “BBB-” (outlook stable and not on credit watch for downgrade) or higher from Fitch.

Cumulative Loss Event” shall mean, on any Calculation Date, (a) the amount of the reduction in Portfolio Value resulting from or attributable to each Ineligibility Event occurring since the Closing Date exceeds (b)(i) the amount of the reduction in Portfolio Value projected to occur by such Calculation Date under the Base Case Model as a result of each Ineligibility Event plus (ii) the principal amount of all prior Ineligible Project Prepayments.

Customer” shall mean a natural person or trust party to a Customer Agreement who leases, or agrees to purchase Energy produced by, a Project.

Customer Agreement” shall mean those power purchase agreements or customer lease agreements (together with all ancillary agreements and documents related thereto, including any assignment agreement to a replacement Customer) with respect to a Project between a Fund, as owner or lessor, and a Customer, whereby the Customer agrees to purchase the Energy produced by the related Project for a fixed fee (subject to escalation) per kWh, or agrees to lease the Project for monthly lease payments, as applicable, in each case for a specified term of years and including agreements where the Customer has the ability to prepay such amounts.

Debt Service” shall mean, for any period, the sum, computed without duplication, of the following:  (a) all amounts payable by the Borrower in respect of principal of Indebtedness hereunder (other than prepayments of Loans during such period pursuant to Section 3.03 (Optional Prepayments) or Section 3.04 (Mandatory Prepayments)), including the aggregate amount of all principal, Agency Expenses, or any other recurrent analogous costs and damages (including gross-ups and increased cost payments) payable pursuant to any Loan Document plus (b) all amounts payable by the Borrower in respect of Interest Expense for such period.

Debt Service Reserve Account” shall have the meaning given to such term in the Depositary Agreement.

Debt Service Reserve Required Amount” shall have the meaning given to such term in the Depositary Agreement.

Debt Termination Date” shall mean the date on which (a) the Commitments have expired or been terminated, (b) the principal of and interest on each Loan and all fees payable hereunder shall have been paid indefeasibly paid in cash in full and (c) all other Obligations

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(other than any inchoate indemnification or expense reimbursement Obligations that expressly survive termination of this Agreement) shall have indefeasibly paid in cash in full.

Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

Default” shall mean any event, occurrence or circumstance that is, or with notice or the lapse of time or both would become, an Event of Default.

Deficient Project” shall mean a Project that is a “Deficient Project” or “Cancelled Project”, each as defined in the applicable Limited Liability Company Agreement, Master Lease Agreement or Master Purchase Agreement, or any other Project that was ineligible to be tranched or funded, or in respect of which returns have been or are required to be prepaid, under the applicable Tax Equity Documents.

Depositary Agent” shall mean Wells Fargo Bank, National Association, and its successors and assigns in such capacity in accordance with the Depositary Agreement.

Depositary Agreement” shall mean the Depositary Agreement dated as of the Closing Date, among the Borrower, the Guarantors party thereto, the Administrative Agent, the Collateral Agent and the Depositary Agent and substantially in the form of Exhibit D (Form of Depositary Agreement).

Distribution Conditions” shall mean:

(a)no Default or Event of Default has occurred and is continuing;

(b)the Debt Service Reserve Account is fully funded, or an Acceptable DSR Letter of Credit has been posted, in an aggregate amount at least equal to the then applicable Debt Service Reserve Required Amount;

(c)the Inverter Replacement Reserve Account is fully funded in an amount at least equal to the then applicable Inverter Replacement Reserve Required Amount;

(d)at all times until the first Scheduled Payment Date to occur after the third anniversary of the Closing Date, the Supplemental Reserve Account is fully funded in an amount at least equal to the then applicable Supplemental Reserve Required Amount;

(e)no Manager Event, Provider Event or Lessor Default, or any other event that would with the giving of notice, passage of time or both would result in any of the foregoing, shall have occurred and be continuing; and

(f)as of the applicable Scheduled Payment Date, (i) the Historical Debt Service Coverage Ratio for the Rolling Period ending on such Scheduled Payment Date is not less than 1.20:1.00; and (ii) the Projected Debt Service Coverage Ratio for the

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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subsequent Rolling Period commencing on the day following the applicable Scheduled Payment Date is not less than 1.20:1.00, and the Borrower shall have delivered a Scheduled Payment Date Report to the Administrative Agent and Lenders certifying to the same.

Distribution Suspense Account” shall have the meaning given to such term in the Depositary Agreement.

Dollars” and “$” shall mean lawful money of the United States.

DTE SREC Consent” shall mean that certain consent and acknowledgment dated as of January 5, 2017 by and between the DTE Energy Trading, Inc. a Michigan corporation, the SREC Seller Parties and the Collateral Agent for the benefit of the Secured Parties, as acknowledged by DTE Energy Company, a Michigan corporation (as buyer guarantor).

Early Amortization Period” shall mean a period beginning on any Scheduled Payment Date where the Distribution Conditions have not been satisfied on such Scheduled Payment Date and the immediately prior Scheduled Payment Date (two consecutive Scheduled Payment Dates in total) and continuing until the Scheduled Payment Date upon which the Distribution Conditions have been satisfied.

Economic Interest” shall mean the direct or indirect ownership by one Person of Capital Stock in another Person.  A Person who directly holds all of the Capital Stock of another Person is understood to hold an Economic Interest of one hundred percent (100%) in such other Person.  For purposes of determining the Economic Interest of one Person in another Person where there are one or more other Persons in the chain of ownership, the Economic Interest of the first Person in the second Person shall be deemed proportionately diluted by Economic Interests of less than one hundred percent (100%) held by such other Persons in the chain of ownership.  For example, if Company A owns eighty percent (80%) of the Capital Stock of Company B, which in turn owns eighty percent (80%) of the partnership interests in Partnership C, which in turn owns fifty percent (50%) of the Capital Stock in Company D, then Company A would have an Economic Interest in Company D of thirty-two percent (32%).

EEA Member Country” shall mean any member state of the European Union, Iceland, Liechtenstein and Norway.

Eligible Customer Agreement” shall mean a Customer Agreement substantially in the form of one of the form agreements attached to the Officer’s Certificate or such other form of agreement as approved by the Majority Lenders in writing, which forms may be modified in a manner permitted under the Tax Equity Documents so long as such revisions could not reasonably be expected, in the aggregate across all such revisions to all Customer Agreements, to have a Material Adverse Effect.

Eligible Project” shall mean a Project installed on a dwelling owned by the applicable Customer, which Project is owned by a Fund and (a) has been Placed in Service, (b) is

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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not the subject of any Revenue Termination Event or Ineligibility Event, and (c) is not a Deficient Project.

Eligible Revenues” shall mean Operating Revenue from Eligible Projects to the extent such Operating Revenues solely consist of (a) payments by Customers pursuant to the applicable Customer Agreement and (b) Eligible SREC Proceeds.

Eligible SREC Contract” shall mean individually or collectively, as the context requires, each agreement and each associated guaranty listed under the heading “Eligible SREC Contracts” on Schedule 7.22(a) (Portfolio Documents).

Eligible SREC Counterparty” shall mean the counterparty to a SREC Seller Party under an Eligible SREC Contract (and its applicable guarantor).

Eligible SREC Proceeds” shall mean all revenues and proceeds under any Eligible SREC Contract to the extent that a direct agreement has been entered into with the applicable Eligible SREC Counterparty.

Employee Benefit Plan” shall mean any employee pension benefit plan within the meaning of Section 3(2) of ERISA (excluding any Multiemployer Plan) which is subject to Title IV of ERISA or to Section 412 of the Code.

Energy” shall mean electric energy, expressed in megawatt hours or kilowatt hours (“kWh”), of the character that passes through transformers and transmission wires, where it eventually becomes alternating current electric energy delivered at nominal voltage.

Environmental Laws” shall mean all present and future Laws pertaining to or imposing liability or standards of conduct concerning environmental protection, human health and safety, contamination or clean-up or the use, handling, generation, Release or storage of Hazardous Material, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, the Resource Conservation and Recovery Act, as amended, the Emergency Planning and Community Right-to-Know Act of 1986, as amended, the Hazardous Substances Transportation Act, as amended, the Solid Waste Disposal Act, as amended, the Clean Water Act, as amended, the Clean Air Act, as amended, the Toxic Substances Control Act, as amended, the Safe Drinking Water Act, as amended, the Occupational Safety and Health Act, as amended (to the extent relating to human exposure to Hazardous Materials), the National Environmental Policy Act, as amended, and all analogous state or local statutes, (including, with respect to the Projects located in the State of New York, the New York State Environmental Quality Review Act, as amended and, with respect to the Projects located in the State of New Jersey, the New Jersey Site Remediation Reform Act), any state superlien Law and environmental clean-up Laws and all regulations adopted in respect of the foregoing Laws whether now or hereafter in effect.

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended or as may be amended from time to time.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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ERISA Affiliate” shall mean, in relation to any Person, any other Person under common control with the first Person, within the meaning of Section 4001(a)(14) of ERISA.

EU Bail-In Legislation Schedule” shall mean the document described as such and published by the Loan Market Association (or any successor Person) from time to time.

Event of Default” shall have the meaning assigned to that term in Section 10.01 (Events of Default).

Event of Loss” shall mean (a) an event which causes all or a material portion of an Asset of a Relevant Party to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever (including any covered loss under a casualty insurance policy) and (b) any compulsory transfer or taking, or transfer under threat of compulsory transfer, of any Asset of a Relevant Party pursuant to the power of eminent domain, condemnation or otherwise.

Excess Agency Expenses” shall mean, at all times other than when an Event of Default has occurred and is continuing, the amount of Agency Expenses in excess of the Agency Expense Cap.

Excluded Property” shall mean, solely to the extent no Event of Default shall have occurred and be continuing, each of the following:

(a) all cash proceeds from any upfront solar energy incentive programs, including proceeds disbursed as an expected performance based buydown pursuant to the California Solar Initiative (which are not subject to state income tax), or any other state or local solar power incentive program which provides incentives that are substantially similar to the expected performance based buydown provided under the California Solar Initiative (and which are similarly not subject to state income tax);

(b) all cash proceeds from any state income tax credit, including proceeds pursuant to the refundable Hawaii Energy Tax Credits;

(c) Rebates; and

(d) proceeds of any true-up payment paid to any applicable Guarantor in respect of Fund XIII and Fund XVIII.

Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to any Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) 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 Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to any right to payment hereunder or an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Recipient acquires such interest in the Loan or Commitment or in this Agreement or (ii) such

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Recipient (if the Recipient is a Lender) changes its Lending Office, except in each case to the extent that, pursuant to Section 5.02(a) (Taxes), amounts with respect to such Taxes were payable either to such Recipient’s assignor immediately before such Recipient became a party hereto or to such Recipient immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.02(e) (Taxes) and (d) any withholding Taxes imposed pursuant to FATCA.

Exempt Customer Agreements” shall mean (a) any Customer Agreement which has unpaid Rents that are *** days or more past due, (b) any Customer Agreement where (i) the Customer’s interest in the underlying host Property for the applicable Project has been sold or otherwise transferred without either the Customer purchasing the Project or the new owner assuming such Customer Agreement and (ii) the applicable Fund Provider reasonably determines that the current Customer will not make any purchase payment due under the Customer Agreement and the new owner will refuse to assume such Customer Agreement but for a Payment Facilitation Agreement in respect thereof, or (c) any Customer Agreement subject to a dispute between the applicable Fund and the Customer which, in light of the facts and circumstances known at the time of such dispute, the Fund Provider reasonably determines the Customer under such Customer Agreement could reasonably be expected to stop making Rent payments due under the Customer Agreement but for a Payment Facilitation Agreement.

FATCA” shall mean Sections 1471 through 1474 of the 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 interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreements entered into in connection with the foregoing and any Law, regulation or practice adopted pursuant to any such intergovernmental agreement.

FERC” shall mean the Federal Energy Regulatory Commission and any successor authority.

FICO® Score” shall mean, in respect of any Customer, a credit score obtained from (a) Experian Information Solutions, Inc., (b) Transunion, LLC or (c) Equifax Inc., in each case, as obtained in connection with such Customer Agreement.  If the Customer is a trust, the applicable credit score for that Customer shall be the credit score of the trustee.

Final Maturity Date” shall mean January 5, 2035.

Financial Statements” shall mean in relationship to any Person, its consolidated statements of operations and members’ equity, statements of cash flow and balance sheets.

Financing SRECs” shall mean the SRECs transferred from a Fund or a Guarantor to SREC Guarantor pursuant to the Fund XI SREC Transfer Agreement, the Fund XIII SREC Transfer Agreement and the Fund I SREC Transfer Agreement (as each such term is defined in Schedule 7.22(a) (Portfolio Documents)).

Fitch” shall mean Fitch Ratings Ltd. and its successors.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Flip Point” shall have the meaning given to the term “Flip Point” in the applicable Limited Liability Company Agreement of Fund XVIII.

Foreign Lender” shall mean any Recipient that is not a U.S. Person.

FPA” shall mean the Federal Power Act, as amended, and FERC’s regulations thereunder.

Fund” shall mean each Owned Fund and the Lessee.

Fund Account” shall mean a deposit account or securities account in the name of a Fund into which all Rents and other Operating Revenues paid to such Fund are deposited and each “Lessee Account” and the “Lessor Account” (each as defined in the Lease Depositary Agreement).

Fund Manager Membership Interests” shall mean (a) in the case of the Partnership Flip Funds, all of the outstanding class B membership interests issued by the Funds (including all Economic Interests and Voting Rights applicable to the class B member) and (b) in the case of the Lessor, all of the outstanding membership interests issued by the Lessor.

Fund Membership Interests” shall mean all of the outstanding Fund Manager Membership Interests and all other membership interests issued by a Fund that have been acquired by a Guarantor or where the Tax Equity Member has withdrawn (including all acquired Economic Interests and Voting Rights).

Fund Provider” shall mean the Provider and any replacement services provider appointed under a replacement Administrative Services Agreement or Maintenance Services Agreement in accordance with Section 9.10(d) (Portfolio Documents).

Fund Purchase Option” shall mean any option under the Tax Equity Documents to purchase the outstanding “class A” membership interests of a Tax Equity Fund or any membership interests held by a Tax Equity Member in such Tax Equity Fund.

Fund Representations” shall mean the representations set forth in Annex A (Fund Representations).

Fund SREC Property” shall mean (i) all Aggregator SRECs, (ii) receivables pursuant to the SREC Aggregator Master PSA and proceeds from the sale of SRECs received pursuant to the SREC Aggregator Master PSA and (iii) the Unpledged SREC Account and all amounts deposited therein; provided, that, for the avoidance of doubt, no cash distributions with respect to the Fund Membership Interests shall be Fund SREC Property.

Fund SREC Transfer Agreements” shall mean individually or collectively, as the context requires, each agreement listed under the heading “Fund SREC Transfer Agreements” on Schedule 7.22(a) (Portfolio Documents), which may be modified from time to time subject to Section 9.10 (Portfolio Documents).

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Fund Termination Agreements” shall mean each of (i) the Termination Agreement, dated as of the date hereof, by and between Fund XI Guarantor, the Aggregation Facility Administrative Agent and the Aggregation Facility Collateral Agent, and acknowledged and agreed by the Aggregation Facility Borrower, (ii) the Termination Agreement, dated as of the date hereof, by and between Fund XIII Guarantor, the Aggregation Facility Administrative Agent and the Aggregation Facility Collateral Agent, and acknowledged and agreed by the Aggregation Facility Borrower, (iii) the Termination Agreement, dated as of the date hereof, by and between Lessor Manager Guarantor, the Aggregation Facility Administrative Agent and the Aggregation Facility Collateral Agent, and acknowledged and agreed by the Aggregation Facility Borrower, and (iv) the Termination Agreement, dated as of the date hereof, by and between Fund XVIII Guarantor, the Aggregation Facility Administrative Agent and the Aggregation Facility Collateral Agent, and acknowledged and agreed by the Aggregation Facility Borrower.

Fund XI” shall mean Vivint Solar Fund XI Project Company, LLC, a Delaware limited liability company.

Fund XI Guarantor” shall mean Vivint Solar Fund XI Manager, LLC, a Delaware limited liability company.

Fund XIII” shall mean Vivint Solar Fund XIII Project Company, LLC, a Delaware limited liability company.

Fund XIII Guarantor” shall mean Vivint Solar Fund XIII Manager, LLC, a Delaware limited liability company.

Fund XVIII” shall mean Vivint Solar Fund XVIII Project Company, LLC, a Delaware limited liability company.

Fund XVIII Guarantor” shall mean Vivint Solar Fund XVIII Manager, LLC, a Delaware limited liability company.

Fund XVIII Projects” shall mean each of the Projects owned by Fund XVIII.

Fund XVIII Tax Equity Member” shall mean each Tax Equity Member in Fund XVIII.

Funding Account” shall have the meaning given to it in the Depositary Agreement.

Further Guidance” means statutory amendments; temporary, proposed or final Treasury Regulations; any IRS guidance published in the Internal Revenue Bulletin and/or Cumulative Bulletin; any notice, announcement, revenue ruling or revenue procedure or similar authority issued by the IRS; or any other administrative guidance, in each case, interpreting or applying Section 1101 of the Budget Act.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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GAAP” shall mean generally accepted accounting principles in the United States applied on a basis consistent with those principles set forth in Section 1.02(a) (Accounting Terms and Determinations).

Government Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.

Governmental Authority” shall mean any supranational, national, federal or state or local government or other political subdivision thereof or any entity, including any regulatory or administrative authority or court or central bank, exercising executive, legislative, judicial, regulatory or administrative or quasi-administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Grant” means a cash grant under section 1603 of the American Recovery and Reinvestment Act of 2009, as amended.

Guarantor” shall mean each of the Lessor Manager Guarantor, the Partnership Flip Manager Guarantors, SREC Guarantor and any Wholly-Owned Fund.

Guarantor Account” shall have the meaning given to such term in the Depositary Agreement.

Guarantor Collateral Agreement” shall mean the guaranty and pledge agreement dated as of the Closing Date between each Guarantor from time to time and the Collateral Agent for the benefit of the Secured Parties.

Guarantor Manager Membership Interests” shall mean all of the outstanding limited liability company interests issued by the Partnership Flip Manager Guarantors, the Lessor Manager Guarantor and the SREC Guarantor (including all Economic Interests and Voting Rights).

Hazardous Material” shall mean any pollutant, contaminant or hazardous or toxic substance, material or waste that is regulated by or could form the basis of liability now or hereafter under, any Environmental Law, including any (a) petroleum, petroleum hydrocarbons, petroleum products, crude oil or any fraction or by-product derivatives; (b) flammable substances, explosives or radioactive materials; (c) asbestos or asbestos-containing materials in any form; (d) polychlorinated biphenyls; and (e) any other radioactive, hazardous, toxic or noxious waste, substance, material, pollutant or contaminant that, whether by its nature or its use, is subject to regulation or giving rise to liability or obligation under any Environmental Law.

Historical Debt Service Coverage Ratio” shall mean, for any Rolling Period, the ratio of (a) the sum of Net Cash Flow plus Ineligible SREC Proceeds plus any amounts withdrawn from the Supplemental Reserve Account during such Rolling Period solely to the extent withdrawn for application in accordance with Section 4.02(d)(ii) or (iii) of the Depositary Agreement to (b) Debt Service required to be paid during such Rolling Period.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Included System Services” shall have the meaning given to the terms “System Services”, “Base System Services” and “Administrative Services” (other than “Additional Administrative Services” as defined in the Lease Services Agreements) in the applicable Services Agreements, or such other term used to describe included services under the Services Agreements.

Indebtedness” shall mean, for any Person, without duplication:  (a) all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of Property for which such Person or its Assets is liable, (b) all unfunded amounts under a loan agreement, letter of credit, surety bond or other similar instrument (unless secured in full by cash), or other credit facility for which such Person would be liable if such amounts were advanced thereunder, (c) all amounts required to be paid by such Person as a guaranteed payment to partners or a preferred or special dividend, including any mandatory redemption of shares or interests and any other payment required to be made in respect of any equity interests in any Person or rights or options to acquire any equity interests in any Person, but excluding any distributions required to be made (i) in respect of the outstanding class A membership interests issued by the Tax Equity Funds, (ii) to Borrower or any Subsidiary in respect of the outstanding Fund Membership Interests or Guarantor Manager Membership Interests or (iii) target lessee distributions payable under the Tax Equity Documents, (d) all obligations (including all amounts to be capitalized) under leases that constitute capital leases for which such Person is liable, (e) all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person is liable contingently or otherwise, as borrower, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against loss, (f) all obligations of such Person under conditional sale or other title retention agreements relating to Property or Assets acquired by such Person (even though the rights of the seller or lender thereunder may be limited in recourse), and (g) all guarantees of such Person in respect of any of the foregoing.  The Indebtedness of a Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof.

Indemnified Taxes” shall mean (a) 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 Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitee” shall have the meaning assigned to that term in Section 12.03(b) (Expenses; Etc).

Indemnity Claims” shall have the meaning assigned to that term in Section 12.03(b) (Expenses; Etc.).

Independent” shall mean, when used with respect to any specified Person, that such Person (a) is in fact independent of each of the Relevant Parties and any Affiliate thereof, (b) does not have any direct financial interest or any material indirect financial interest in any of the Relevant Parties or any Affiliate thereof and (c) is not connected with any of the Relevant

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Parties or any Affiliate thereof as an officer, employee, member, manager, contractor, promoter, underwriter, trustee, partner, director or person performing similar functions.

Independent Engineer” shall mean Leidos Engineering or any other Person from time to time appointed by the Administrative Agent (at the written instructions of the Majority Lenders) to act as “Independent Engineer” for the purposes of this Agreement.

Ineligibility Amount” shall have the meaning given to it in the definition of “Ineligibility Prepayment Amount”.

Ineligibility Event” shall mean in respect of any Project:

(a) the applicable Customer becomes more than *** days past due on any amount due under the related Customer Agreement;

(b) the applicable Customer makes an Ineligible Customer Reassignment;

(c) such Project is discovered not to have been an Eligible Project as of the Closing Date; or

(d) the early termination of its applicable Customer Agreement (without a replacement being entered into that would cause the Project to continue to meet the criteria for an Eligible Project) and no termination payment has been paid by the Customer by the date that is *** days after such termination; except to the extent any of the events in paragraphs (a) through (d) above occur in respect of a Non-PTO Project.

Ineligibility Prepayment Amount” shall mean, on any Scheduled Payment Date, the product of (a) the Repayment Factor multiplied by (b) an amount (the “Ineligibility Amount”) equal to (i) the reduction in Portfolio Value resulting from or attributable to each Ineligibility Prepayment Project occurring during the calendar quarter ending on the immediately prior Calculation Date (which shall be calculated assuming no further Net Cash Flow or other proceeds shall be received in respect of such Ineligibility Prepayment Projects) minus (ii) any applicable Prepayment Reduction Amount (provided that the Ineligibility Amount shall not be less than zero); provided that if the Repayment Factor at the time of the applicable prepayment of the Loans with such Ineligibility Prepayment Amount is greater than the Projected Repayment Factor for such payment period, then the Ineligibility Prepayment Amount shall be equal to the lesser of (i) the Ineligibility Amount and (ii) an amount that would cause the Repayment Factor (based on the principal outstanding immediately after a prepayment of the Loans in such amount) to be equal to the Projected Repayment Factor for such prepayment period.

Ineligibility Prepayment Project” shall mean, in respect of any Scheduled Payment Date, a Project that became the subject of an Ineligibility Event during the calendar quarter ending on the immediately prior Calculation Date and where a Cumulative Loss Event occurred on such Calculation Date.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Ineligible Customer Reassignment” shall mean a Customer Agreement has been assigned and (i) if the Customer is not a trust, the assignee Customer has a FICO® Score of less than ***, or (ii) if the Customer is a trust, the trustee has a FICO® Score of less than ***.

Ineligible Project Prepayment” shall mean, in respect of any Scheduled Payment Date, the mandatory prepayment payable on such applicable Scheduled Payment Date in accordance with Section 3.04(c) (Ineligibility Events).

Ineligible SREC Contracts” shall mean any SREC Contracts that are not Eligible SREC Contracts.

Ineligible SREC Proceeds” shall mean all revenues and proceeds under Ineligible SREC Contracts that have been received by the Borrower from the Funds or any Guarantor.

Information” shall have the meaning given to such term in Section 7.25(a) (Full Disclosure).

Institutional Investor” shall mean any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form.

Insurance Consultant” shall mean Moore-McNeil, LLC or any other Person from time to time appointed by the Administrative Agent (at the written instructions of the Majority Lenders) to act as “Insurance Consultant” for the purposes of this Agreement.

Interest Expense” shall mean, for any period, all interest in respect of Indebtedness hereunder accrued or capitalized during such period (whether or not actually paid during such period).

Interest Rate” shall mean 6.04% per annum.

Inverter Replacement Reserve Account” shall have the meaning given to such term in the Depositary Agreement.

Inverter Replacement Reserve Required Amount” shall have the meaning given to such term in the Depositary Agreement.

Investment Company Act” shall mean the United States Investment Company Act of 1940, as amended or as may be amended from time to time.

Involuntary Bankruptcy” shall mean any involuntary case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar Law now or hereafter in effect, in which the Sponsor or any Relevant Party is a debtor or any Assets of any such entity is property of the estate therein.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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IRS” shall mean the United States Internal Revenue Service.

ITC” shall mean the 30% investment tax credit under Section 48 of the Code.

ITC Insurance Coverage Amount” shall mean $20,000,000.

ITC Insurance Loss” shall have the meaning given to it in the Depositary Agreement.

ITC Insurance Policy” shall mean a final binding Tax Insurance Policy issued by ITC Underwriting Representative in the ITC Insurance Coverage Amount to Fund XVIII Guarantor, as named insured, and Fund XVIII, as insured, in substantially the form of Exhibit N (Form of ITC Insurance Policy).

ITC Insurance Policy Account” shall have the meaning given to it in the Depositary Agreement.

ITC Insurance Policy Retention Reserve Amount” shall have the meaning given to it in the Depositary Agreement.

ITC Insurer” shall mean the “Insurers” as defined in the ITC Insurance Policy.

ITC Underwriting Representative” shall mean Ambridge Partners LLC.

KBRA” shall mean Kroll Bond Rating Agency, Inc. and any successor to its rating agency business.

Knowledge” whenever used in this Agreement or any of the Loan Documents, or in any document or certificate executed pursuant to this Agreement or any of the Loan Documents, (whether by use of the words “knowledge” or “known”, or other words of similar meaning, and whether or not the same are capitalized), shall mean, with respect to the Borrower:  actual knowledge of the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Chief Commercial Officer, General Counsel, Chief Revenue Officer, Chief Sales Officer, Chief Technology and Information Officer and Controller of the Sponsor or any other position with substantially the same responsibilities of such Persons and any other Person that is an officer of, or is employed by, a Relevant Party or the Manager and is authorized with managerial responsibilities.  The Borrower shall cause each Subsidiary and the Manager to promptly notify it of any event or circumstance that would require the Borrower to provide notice to a Lender Party under the Loan Documents upon Knowledge of the Borrower.  Any notice delivered to the Sponsor or any Relevant Party (including to the Manager as their agent) by a Secured Party shall provide such Person with Knowledge of the facts included therein.

Laws” shall mean, collectively, all international, foreign, Federal, state and local statutes, common law, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority, and all applicable administrative orders, decrees,

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lease Depositary Agreement” shall mean that certain Depositary Agreement dated as of June 1, 2015, by and between Lessor and Lessee, as amended by the Amendment to Depositary Agreement dated March 10, 2016.

Lease Manager” shall mean the Provider and any replacement services provider assuming the position of “manager” of the Lessee, under a replacement Administrative Services Agreement and the Lessee Limited Liability Company Agreement, in accordance with Section 9.10(d) (Portfolio Documents).

Lease Services Agreements” shall mean (a) that certain Administrative Services Agreement, dated June 1, 2015, among Provider, Lessor, and VS BC Solar Lessee I, LLC and (b) that certain Maintenance Services Agreement, dated June 1, 2015, among Provider, Lessor, and VS BC Solar Lessee I, LLC.

Lease Term” shall mean the “Lease Term” under, and as defined in, the Master Lease Agreement.

Lender” shall have the meaning given to such term in the preamble hereto.

Lender Parties” shall mean the Administrative Agent and each Lender.

Lending Office” shall mean, with respect to each Lender, such Lender’s address and, as appropriate, account on file with the Administrative Agent, or such other address or account as such Lender may from time to time notify to the Administrative Agent.  “Lessee” shall mean VS BC Solar Lessee I, LLC, a Delaware limited liability company in writing.

Lessee Default” shall mean a “Lessee Default” under, and as defined in, the Master Lease Agreement.

Lessor” shall mean Vivint Solar Fund XVI Lessor, LLC, a Delaware limited liability company.

Lessor Default” shall mean the occurrence of an uncured “Lessor Default” under, and as defined in, the Master Lease Agreement.  A Lessor Default may be cured if, within forty (45) days, the applicable default is waived in writing by the Lessee or is otherwise cured without the exercise of remedies by the Lessee.

Lessor Manager Guarantor” shall mean Vivint Solar Fund XVI Manager, LLC, a Delaware limited liability company.

Lien” shall mean, with respect to any Property of any Person, any mortgage, lien, pledge, charge, lease, easement, servitude, security interest or encumbrance of any kind in respect of such Property of such Person.  For purposes of this Agreement and the other Loan Documents, a Person shall be deemed to own subject to a Lien any Property which it has

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement (other than an operating lease) relating to such Property or, in the case of securities, subject to any purchase option, call or other similar rights of a third party with respect to such securities.

Limited Liability Company Agreement” shall mean the respective limited liability company agreement or operating agreement of each Tax Equity Fund.

Loan” shall have the meaning assigned to that term in Section 2.01(a) (Loans).

Loan Documents” shall mean, collectively, this Agreement, the Notes, the Agency Fee Letter, the Collateral Documents, the Closing Date Assignment Agreements, the Master SREC Purchase and Sale Agreements, each Back-Up Servicing Agreement entered into in respect of a Wholly-Owned Fund, and all other documents, agreements or instruments executed in connection with the Obligations.  For the avoidance of doubt, the term “Loan Documents” shall not include the Portfolio Documents.

Loan Exposure” shall mean, at any time, for any Lender, the sum of (a) the available amount of such Lender’s Commitments at such time plus (b) the aggregate outstanding principal amount of the Loans held by such Lender at such time.  The Loan Exposure of all the Lenders at any time shall be the aggregate of the Loan Exposures of each Lender at such time.

Loan Parties” shall mean the Borrower, Pledgor and each Guarantor.

Loss Proceeds” shall mean all amounts and proceeds (including instruments) from an Event of Loss received by the Loan Parties, including, without limitation, insurance proceeds or other amounts actually received, except proceeds of business interruption insurance.

Maintenance Services” shall mean the services provided by a Fund Provider under its applicable Maintenance Services Agreement.

Maintenance Services Agreements” shall mean individually or collectively, as the context requires, each agreement listed under the heading “Maintenance Services Agreements” on Schedule 7.22(a) (Portfolio Documents) and any replacement maintenance services agreement entered into in accordance with Section 9.10(d) (Portfolio Documents).

Major Decision” shall mean, as to each Fund, any of the decisions contemplated to be made in any of the Limited Liability Company Agreements which (i) require a vote by or the consent or approval of all or a supermajority or majority of the members or the Tax Equity Members of the applicable Fund and (ii) could, if made or not made, reasonably be expected (x) to have a Material Adverse Effect, (y) to result in a reduction of Net Cash Flow during any quarterly period or (z) to result in the Portfolio Value, calculated immediately after giving effect to such modification to be less than the Portfolio Value, calculated immediately prior to giving effect to such modification.

Majority Lenders” shall mean, subject to Section 12.04 (Amendments; Etc), Lenders having Loan Exposure representing more than 50% of the sum of the total Loan

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Exposure at such time; provided that, at all times when two or more Lenders that are not Affiliates have loan Exposure, “Majority Lenders” must include two or more such Lenders that are not Affiliates.

Make-Whole Amount” shall mean, with respect to any Loan, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Loan over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero.  For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:

Called Principal” means, with respect to any Loan, the principal of such Loan that is to be prepaid pursuant to Section 3.03 (Optional Prepayments) and Section 3.04(a) (Incurrence of Indebtedness) or has become or is declared to be immediately due and payable pursuant to Section 10.01 (Events of Default), as the context requires.

Discounted Value” means, with respect to the Called Principal of any Loan, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on such Loan is payable) equal to the Reinvestment Yield with respect to such Called Principal.

Reinvestment Yield” means, with respect to the Called Principal of any Loan, 0.50% plus the yield to maturity implied by (i) the yields reported, as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on the run U.S. Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date, or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable (including by way of interpolation), the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date].  In the case of each determination under clause (i) or clause (ii), as the case may be, of the preceding sentence, such implied yield will be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond-equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between (1) the actively traded on the run U.S. Treasury security with the maturity closest to and greater than such Remaining Average Life and (2) the actively traded on the run U.S. Treasury security with the

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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maturity closest to and less than such Remaining Average Life.  The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Loan.

Remaining Average Life” means, with respect to any Called Principal, the number of years (calculated to the nearest two decimal places) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest two decimal places) that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

Remaining Scheduled Payments” means, with respect to the Called Principal of any Loan, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made on such Loan hereunder, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 3.03 (Optional Prepayments), Section 3.04(a) (Incurrence of Indebtedness) or Section 10.01 (Events of Default); provided, further, that the interest that would be due after the Settlement Date with respect to the Called Principal shall be deemed to accrue at the rate of 3.50% per annum for all payment periods from and after the seven year anniversary of the Closing Date.

Settlement Date” means, with respect to the Called Principal of any Loan, the date on which such Called Principal is to be prepaid pursuant to Section 3.03 (Optional Prepayments), Section 3.04(a) (Incurrence of Indebtedness) or has become or is declared to be immediately due and payable pursuant to Section 10.01 (Events of Default), as the context requires.

Management Agreement” shall mean the Management Agreement by and between the Manager and the Borrower dated as of the Closing Date and any replacement management agreement entered into in accordance with Section 9.10(e) (Portfolio Documents).

Management Consent Agreement” shall mean the Management Consent and Agreement dated as of the Closing Date by and among the Manager, the Borrower and the Collateral Agent and any replacement management consent agreement entered into in accordance with Section 9.10(e) (Portfolio Documents).

Manager” shall mean Provider and any replacement services provider appointed under a replacement Administrative Services Agreement or Maintenance Services Agreement in accordance with Section 9.10(d) (Portfolio Documents).

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Manager Event” shall mean the removal of any Guarantor as “managing member” of a Partnership Flip Fund.  A Manager Event may be cured, within the lesser of (i) thirty (30) days and (ii) such shorter period ending on the date when Collateral Agent’s cure period commences pursuant to the applicable consent to collateral assignment with the applicable Tax Equity Member (and otherwise at any time prior to the exercise of remedies for an Event of Default), if (x) the grounds for removal are waived in writing by the Tax Equity Member or cease to exist or (y) by the appointment of a Qualified Manager as replacement “managing member” in accordance with each of the requirements in sub-clauses (i)-(iii) of Section 9.10(f) (Portfolio Documents).

Margin Stock” shall mean margin stock within the meaning of Regulation U and Regulation X.

Master Back-Up Servicing Agreement” shall mean the Master Backup Servicer Agreement between Back-Up Servicer and Provider dated June 15, 2016, as amended by that certain Amendment and Joinder Agreement, dated as of November 7, 2016, among Provider, Back-Up Servicer, and Vivint Solar Servicer, LLC, which may be modified from time to time subject to Section 9.10(a) (Portfolio Documents).

Master Lease Agreement” shall mean that certain Master Lease Agreement dated as of June 1, 2015 by and between Lessor and Lessee.

Master Purchase Agreements” shall mean individually or collectively, as the context requires, each agreement listed under the heading “Master Purchase Agreements” on Schedule 7.22(a) (Portfolio Documents), which may be modified from time to time subject to Section 9.10 (Portfolio Documents).

Master SREC Purchase and Sale Agreements” shall mean shall mean the SREC Financing Master PSA and the SREC Aggregator Master PSA.

Material Adverse Effect” shall mean, (a) a material adverse effect upon the business, operations, Property, Assets or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole, (b) the material impairment of the ability of the Borrower or the SREC Seller Parties to perform their respective obligations under any Loan Document, or (c) a material adverse effect on the legality, validity or enforceability against any Relevant Party or the Sponsor of any of the (i) Loan Documents or the rights and remedies of any Secured Party under any of the Loan Documents (including the validity, perfection or priority of the Collateral Agent’s Liens on the Collateral) or (ii) Limited Liability Company Agreements, Master Lease Agreement, Eligible SREC Contracts or Sponsor Guaranties.

Membership Interests” shall mean the Borrower Membership Interests, the Guarantor Manager Membership Interests and the Fund Membership Interests.

Memorandum” shall mean the Confidential Information Memorandum dated October 2016 prepared by Merrill Lynch, Pierce, Fenner & Smith Incorporated relating to the transactions contemplated hereby.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Model Auditor” shall mean Novogradac & Company LLP or any other Person from time to time appointed by the Administrative Agent (at the written instructions of the Majority Lenders) to act as “Model Auditor” for the purposes of this Agreement.

Moody’s” shall mean Moody’s Investors Service, Inc.

Multiemployer Plan” shall mean a “multiemployer plan” (as defined in Section 3(37) or Section 4001(a)(3) of ERISA).

Net Available Amount” shall mean, with respect to the issuance or incurrence of any Indebtedness by any Relevant Party, debt proceeds received in connection therewith net of any such debt proceeds required to be distributed to any Tax Equity Member pursuant to a Tax Equity Document solely to the extent such distribution to such Tax Equity Member reduces the cash distributions that would otherwise be payable to such Tax Equity Member in the future had such distribution to such Tax Equity Member of such debt proceeds not been made (whether through application against any priority return payable to such Tax Equity Member or an acceleration of any “flip date” or lease expiration date or otherwise).

Net Cash Flow” shall mean, in respect of any period, the amount of Operating Revenues received by the Borrower during such period less Operating Expenses paid during such period; provided, that, where Net Cash Flow is projected (whether under the Base Case Model or otherwise) it shall exclude (x) any Operating Revenues that are not Eligible Revenues from projected Operating Expenses.

Non-Covered Services” shall have the meaning given to the term “Non-Included System Services”, “Non-Agreed System Services”, “Non-Routine Additional Services” or “Non-Included Administrative Services” in each applicable Services Agreement or such other term used to describe services which are not Included System Services.

Non-PTO Projects” shall mean each Project identified on Schedule A (Project Information) as not having been Placed in Service as of the Closing Date.

Note” shall have the meaning given to such term in Section 2.02(b) (Execution and Delivery of Notes).

Notice of Borrowing” shall mean a request for a Loan by the Borrower substantially in the form of Exhibit B (Form of Notice of Borrowing).

Obligations” shall mean the principal amount of the Loans, accrued interest thereon, any Make-Whole Amount and all advances to, fees, costs, expenses and debts, liabilities, obligations, covenants and duties of, any Loan Party or SREC Seller Party to any Secured Party or Indemnitee arising under any Loan Document (including any other premium, damages, expenses, fees, costs, charges, disbursements, indemnities, and other liabilities) or otherwise with respect to any Loan, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest that would accrue on any of the foregoing during the pendency of any bankruptcy or related proceeding with respect to any Loan Party or SREC Seller Party.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

Officer’s Certificate” shall mean a certificate signed by any Authorized Officer of the Borrower and delivered to the Administrative Agent in substantially the form attached as Exhibit H (Form of Officer’s Certificate).

Operating Budget” shall mean the operating budget for the Relevant Parties set out under Section 8.01(e)(i) (Operating Budgets) and as approved when required by the Administrative Agent (acting on the written instructions of the Majority Lenders).

Operating Expenses” shall mean for any applicable period, all expenses and other amounts in the nature of expenses incurred by the Borrower, the Wholly-Owned Funds and, except (in order to avoid double counting) where used in the definition of “Net Cash Flow,” the other Funds during that period on a cash basis, including (without duplication) (a) payments under the Management Agreement, Back-Up Servicing Agreements, the Services Agreements and the other Project Documents (including, without duplication, all Service Fees and capital expenditures), (b) payments to comply with Laws (including Environmental Laws), (c) insurance premiums to the extent not covered in the Service Fees under the Services Agreements, (d) Taxes (including payments in lieu of taxes), and (e) any other fee, cost and expense incurred in connection with (i) ownership, leasing and operation of the Projects held by the Wholly-Owned Funds and, except (in order to avoid double counting) where used in the definition of “Net Cash Flow,” the other Funds and (ii) the ownership of the Membership Interests (including Agency Expenses), but excluding (A) Debt Service and (B) expenses and amounts in the nature of expenses which are paid with the proceeds of Excluded Property or a contribution by or on behalf of the Sponsor or Pledgor.

Operating Revenues” shall mean for any applicable period, all Collections or Eligible SREC Proceeds received by the Borrower from the Funds or any Guarantor (including SREC Guarantor) during that period on a cash basis but excluding (without duplication):

(a)any capital contribution or any other amounts contributed to the Relevant Parties by Sponsor, Pledgor or their Affiliates;

(b)the proceeds of the Loans or any other Indebtedness incurred by a Relevant Party;

(c)the proceeds of the sale, assignment or other disposition of any Collateral or other Asset of a Relevant Party (other than (i) ordinary course sales of power or the leasing of a photovoltaic system pursuant to the Customer Agreements and (ii) proceeds of SRECs and SREC Contracts);

(d)proceeds of any Revenue Termination Event or Ineligibility Event, including any termination payment, elective prepayment or purchase payments;

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(e)Loss Proceeds and any other insurance proceeds (other than business interruption proceeds) and proceeds of any warranty claims arising from manufacturer, installer and other warranties;

(f)any other proceeds or other amounts that are required to be mandatorily prepaid pursuant to Section 3.04 (Mandatory Prepayments); and

(g)any Excluded Property and the proceeds thereof and any Fund SREC Property and the proceeds thereof (other than cash distributions with respect to the Fund Membership Interests derived from Fund SREC Property and the proceeds thereof).

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 such Tax (other than connections arising solely 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 Loan Document, or sold or assigned an interest in any Loan or Loan 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 Loan Document, except any such Taxes imposed with respect to an assignment.

Owned Fund” shall mean the Lessor, each of the Partnership Flip Funds and each of the Wholly-Owned Funds.

P50 Production” shall mean the production volume based on the P50 one (1) year confidence levels for Eligible Projects in the Project Pool reflected in the Base Case Model as of the Closing Date.

Participant” shall have the meaning given to such term in Section 12.05(d)(i).

Participant Register” shall have the meaning given to such term in Section 12.05(d)(ii).

Partnership Flip Fund” shall mean each of Fund XI, Fund XIII and Fund XVIII.

Partnership Flip Manager Guarantor” shall mean shall mean each of Vivint Solar Fund XI Manager, LLC, a Delaware limited liability company, Vivint Solar Fund XIII Manager, LLC, a Delaware limited liability company and Fund XVIII Guarantor.

Party” shall mean each of the Borrower, the Lenders, and the Administrative Agent.

Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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signed into law October 26, 2001, as amended from time to time, and the rules and regulations promulgated thereunder.

Payment Facilitation Agreement” shall have the meaning given to such term in Section 9.10(a) (Portfolio Documents).

Payment Facilitation Amount” shall have the meaning given to it in Section 3.04(d) (Payment Facilitation Events).

Payment Facilitation Event” shall mean, in respect of a Project that is not a Non-PTO Project, the amendment of the applicable Exempt Customer Agreement by a Payment Facilitation Agreement.

Payment Facilitation Prepayment” shall mean, in respect of any Scheduled Payment Date, the mandatory prepayment payable on such applicable Scheduled Payment Date in accordance with Section 3.04(d) (Payment Facilitation Events).

Payoff Letter” shall mean that certain Partial Payoff Letter, dated as of the date hereof, made by the Aggregation Facility Collateral Agent and Aggregation Facility Administrative Agent and acknowledged and consented to by the Aggregation Facility Borrower, the Partnership Flip Manager Guarantors, the Lessor Manager Guarantor, Vivint Solar Fund XV Manager, LLC and Vivint Solar Owner I, LLC.

Performance Deficit” shall mean, as of any Calculation Date in respect of a Tracking Model for the applicable Tax Equity Fund difference between:

(i)the amount of cash that the Tracking Model demonstrates is required to be received by the applicable Tax Equity Member in order for its applicable target internal rate of return hurdles to occur by no later than the Target Return Date, and

(ii)the amount of cash that is actually projected under the Tracking Model to be received by the applicable Tax Equity Member from the Calculation Date until the Target Return Date,

provided, that, if such amount is negative it shall be deemed to be equal to zero.

Permits” shall mean any and all franchises, licenses, leases, permits, approvals, notifications, certifications, registrations, authorizations, exemptions, qualifications, easements, rights of way, Liens and other rights, privileges and approvals required to be obtained from a Governmental Authority under any Law, rule or regulation (including those required to interconnect a Project to the applicable transmission grid).

Permitted Indebtedness” shall mean the Indebtedness permitted under Section 9.01 (Indebtedness).

Permitted Liens” shall mean:

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(a)Liens imposed by any Governmental Authority for taxes, assessments or other governmental charges (i) that are not yet due or (ii) that are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted (and enforcement of such Lien shall have been stayed) so long as (A) such proceeding shall not involve any material risk of the sale, forfeiture or loss of any part of any Project and shall not interfere with the use or disposition of any Project and (B) the payment thereof is fully covered by adequate reserves in accordance with GAAP, bonds or other security.

(b)mechanics’, materialmen’s, repairmen’s and other similar liens arising in the ordinary course of business or incident to the construction, improvement or restoration of a Project in respect of obligations (i) that are not yet due or (ii) that are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted (and enforcement of such Lien shall have been stayed) so long as (A) such proceedings shall not involve any material risk of forfeiture, sale or loss of any part of such Project and shall not interfere with the use or disposition of any Project, and (B) the payment thereof is fully covered by adequate reserves in accordance with GAAP, bonds or other security;

(c)minor defects, easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and that are not incurred to secure Indebtedness and encumbrances, licenses, restrictions on the use of Property or minor imperfections in title that do not materially impair the Property affected thereby for the purpose for which title was acquired or interfere with the operation and maintenance of a Project;

(d)judgment Liens that (i) do not involve any material risk of the sale, forfeiture or loss of any part of any Project and do not interfere with the use or disposition of any Project, (ii) within ten Business Days of their existence or after the entry thereof, are being contested in good faith and by appropriate appeal or review proceedings (and execution thereof is stayed pending such appeal or review), (iii) for which the payment thereof is fully covered by adequate reserves in accordance with GAAP, bonds or other security and (iv) which could not reasonably be expected to result in an Event of Default;

(e)deposits or pledges required to secure the performance of statutory obligations, appeals, supersedes and other bonds in connection with judicial or administrative proceedings and other obligations of a like nature not in excess of $100,000 in the aggregate;

(f)zoning, entitlement, conservation restrictions and other land use and environmental Laws by Governmental Authorities that do not involve any material risk of the sale, forfeiture or loss of any part of any Project and do not interfere with the use or disposition of any Project, and provided that the relevant owner of legal title to a Project is not in violation thereof;

(g)statutory Liens of banks (and rights of set off) not securing Indebtedness and incurred in the ordinary course of business;

(h)Liens created pursuant to the Loan Documents;

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(i)Liens granted by (i) the Lessee in favor of the Lessor under the Tax Equity Documents and (ii) the Lessor in favor of the SREC Guarantor under the Fund SREC Transfer Agreement to which Lessor is a party; and

(j)in respect of the Tax Equity Funds only, Liens permitted under the terms of the Tax Equity Documents to the extent not included in clauses (a) through (i) of this definition of “Permitted Liens” that (i) have been approved in writing by the Administrative Agent (at the written instructions of the Majority Lenders) or (ii) subject to Section 9.15 (Voting on Major Decisions), when taken together, could not reasonably be expected to result in a material adverse effect upon the business, operations, Assets or condition (financial or otherwise) of any individual Tax Equity Fund.

Person” shall mean any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.

Placed in Service” shall mean, in respect of a Project, that it has been placed in a condition or state of readiness and availability for its specifically assigned function of generating electricity from solar energy and specifically that (a) all necessary Permits for operating such Project have been obtained (including permission to operate from the applicable local utility), (b) all critical tests necessary for proper operation of such Project have been performed, (c) legal title to such Project is held by a Subsidiary (and title and control of such Project has been handed over by the installer under the applicable installation agreement), (d) initial synchronization of such Project to the grid has occurred and (e) daily operation of such Project has begun.

Plan” shall mean an “employee benefit plan” within the meaning of Section 3(3) of ERISA which is subject to ERISA.

Platform” shall mean Intralinks or a substantially similar electronic transmission system established and maintained by the Administrative Agent and to which the Administrative Agent shall have granted access to the Borrower, the Lenders and the Independent Engineer.

Pledge Agreement” shall mean that certain pledge agreement dated as of the Closing Date by and between the Pledgor and the Collateral Agent for the benefit of the Secured Parties, with respect to the Borrower Membership Interests.

Pledged SREC Account” shall have the meaning given to it in the Depositary Agreement.

Pledgor” shall have the meaning given to such term in the Recitals.

Pledgor Membership Interests” shall mean all of the outstanding limited liability company interests issued by the Pledgor (including all Economic Interests and Voting Rights).

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Portfolio Documents” shall mean (a) the Project Documents, (b) the Tax Equity Documents, (c) the Management Agreement, (d) each Back-Up Servicing Agreement and (e) each Eligible SREC Contract.

Portfolio Value” shall mean, as of the date of determination, the remaining present value of the projected Net Cash Flow from all Eligible Projects in the Project Pool as set forth in the Base Case Model (updated as of such determination date in accordance with Section 8.01(i) (Updated Projections)) for each quarterly payment period during the remaining term of the Customer Agreements (not to exceed *** years and assuming no contract renewals), discounted at *** percent (***%) per annum.

Post-Default Rate” shall mean 2.00% per annum above the Interest Rate.

Prepayment Amount” shall mean, in respect of any Prepayment Event, the product of (a) the Repayment Factor multiplied by (b) the reduction in Portfolio Value resulting from or attributable to the applicable Prepayment Event (which shall be calculated assuming no further Net Cash Flow or other proceeds shall be received in respect of the affected Project or SREC Contract, as applicable); provided that if the Repayment Factor at the time of the applicable prepayment of the Loans with such Prepayment Amount is greater than the Projected Repayment Factor for such payment period, then the Prepayment Amount shall be equal to the lesser of (i) the reduction in Portfolio Value resulting from or attributable to the applicable Prepayment Event (which shall be calculated assuming no further Net Cash Flow or other proceeds would be received in respect of the affected Project or SREC Contract, as applicable) and (ii) an amount that would cause the Repayment Factor (based on the principal outstanding immediately after a prepayment of the Loans in such amount) to be equal to the Projected Repayment Factor for such prepayment period.

Prepayment Reduction Amount” shall mean, on any Scheduled Payment Date, in respect of each Reeligible Project that has not previously been credited for the purposes of determining an Ineligibility Amount and Ineligibility Prepayment Amount on a prior Scheduled Payment Date, the increase in Portfolio Value resulting from or attributable to the applicable Reeligible Project ceasing to be the subject of an Ineligibility Event.

Prepayment Event” shall mean a Revenue Termination Event, Payment Facilitation Event or a SREC Prepayment Cure Event.

Project” shall mean a residential photovoltaic system including photovoltaic panels, racking systems, wiring and other electrical devices, conduit, weatherproof housings, hardware, inverters, remote operating equipment, connectors, meters, disconnects, and over current devices (including any replacement or additional parts included from time to time) and, unless the context otherwise requires a reference to such residential photovoltaic system only, shall include the applicable Customer Agreement related to such photovoltaic system and all other related rights, Permits and manufacturer, installer and other warranties applicable thereto, but shall exclude the applicable Customer’s electric distribution system.

Project Documents” shall mean each Customer Agreement.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Project Information” shall mean the information listed on Schedule A (Project Information), to be provided in connection with each Project owned by the Funds in accordance with ARTICLE VI (Conditions Precedent).

Project Party” shall mean each Person (other than the Borrower, the Collateral Agent, the Administrative Agent, the Depositary Agent or any Lender) from time to time party to a Transaction Document.

Project Pool” shall mean all the Projects owned by the Funds.

Project State” shall mean each state of the United States of America listed under Schedule 7.22(q) (Project States).

Project Transfer Agreements” shall mean individually or collectively, as the context requires, each “Bill of Sale” or “Assignment, Assumption and Transfer Agreement”, as each such term is defined in each applicable Master Purchase Agreement, entered into between the Seller and a Fund and any other agreement providing for the assignment or transfer of ownership of Projects and Customer Agreements from Seller to a Fund.

Projected Debt Service Coverage Ratio” shall mean, for any subsequent Rolling Period, the ratio of (a) the projected Net Cash Flow for such Rolling Period (to be calculated on a reasonable basis by the Borrower using assumptions and a methodology consistent with those used in the Base Case Model in accordance with Section 8.01(i) (Updated Projections)) to (b) the projected Debt Service for such Rolling Period.

Projected Repayment Factor” shall mean, for the applicable period, the Repayment Factor projected in the Base Case Model as of the Closing Date for such payment period as set forth in Appendix D.

Property” shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

Provider” shall mean Vivint Solar Provider, LLC, a Delaware limited liability company.

Provider Event” shall mean termination of a Fund Provider as the provider of the applicable Administrative Services, Maintenance Services and/or services as Lease Manager. A Provider Event may be cured if (x) the grounds for removal are waived in writing by the Tax Equity Member or cease to exist, (y) by the appointment of the Back-Up Servicer as a replacement Fund Provider in respect of the Administrative Services and a Qualified Manager as a replacement Fund Provider in respect of the Maintenance Services and, if applicable, services as Lease Manager, and (z) by the appointment of a Qualified Manager as the replacement Fund Provider in respect of all applicable services.

Prudent Industry Practice” shall mean, with respect to any Project, those practices, methods, acts, equipment, specifications and standards of safety and performance, as they may change from time to time, that (a) are commonly used to own, manage, repair, operate,

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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maintain and improve distributed solar energy generating facilities and associated facilities of the type that are similar to such Project, safely, reliably, prudently and efficiently and in material compliance with applicable requirements of Law and manufacturer, installer and other warranties and (b) are consistent with the exercise of the reasonable judgment, skill, diligence, foresight and care expected of a distributed solar energy generating facility operator or manager in order to accomplish the desired result in material compliance with applicable safety standards, applicable requirements of Law, manufacturer, installer and other warranties and the applicable Customer Agreement, in each case, taking into account the location of such Project, including climate change-related, environmental and general conditions.  “Prudent Industry Practices” are not intended to be limited to certain practices or methods to the exclusion of others, but are rather intended to include a broad range of acceptable practices, methods, equipment specifications and standards used in the photovoltaic solar power industry during the relevant time period.

PUHCA” shall mean the Public Utility Holding Company Act of 2005, and FERC’s implementing regulations thereunder.

Purchase Standard” will be the commercially reasonable judgment of the Guarantor exercising the Fund Purchase Option after taking into account (i) the terms of the Limited Liability Company Agreement of the applicable Tax Equity Fund and the other Transaction Documents, (ii) the availability of funds in the Supplemental Reserve Account (which shall include amounts funded into the Supplemental Reserve Account from equity contributions and, in the case of each applicable Partnership Flip Fund, its respective Tax Equity Option Amount) and (iii) the analysis that the Borrower and its Affiliates apply in determining whether or not to exercise similar purchase options for comparable assets owned by the Borrower and its Affiliates.

Qualified Insurers” shall mean financially sound and reputable insurance companies rated “A-, X” or better by A.M. Best Company, “A” or better by S&P or otherwise acceptable to the Majority Lenders, acting reasonably.

Qualified Manager” shall mean a Person that (a) has the Requisite Experience, and (b) either (i) has (A) a Credit Rating of “BBB-” or higher by S&P and “Baa3” or higher by Moody’s or (B) a tangible net worth of at least $150,000,000, or (ii) has a direct or indirect parent with (A) a Credit Rating of “BBB-” or higher by S&P and “Baa3” or higher by Moody’s, or (B) a tangible net worth of at least $150,000,000; provided, that such Person can satisfy the Requisite Experience by engaging its direct or indirect parent, or a third party service provider, who has the Requisite Experience.

Qualified Purchaser” shall mean a Person that purchases the direct or indirect equity interests in Pledgor (other than Sponsor or its Affiliates) that is a Qualified Manager and which has certified at the time it acquires such direct or indirect equity interests in Pledgor that it intends to hold such interests and not treat them “as available for sale” or equivalent for accounting purposes.

Qualifying Facility” shall mean a “qualifying facility” as defined in the regulations of FERC at 18 C.F.R. § 292.101(b)(1) that also qualifies for the regulatory

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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exemptions from the FPA set forth at 18 C.F.R. § 292.601(c), including the exemption from regulation under Sections 205 and 206 of the FPA set forth at 18 C.F.R. § 292.601(c)(1), the regulatory exemptions from PUHCA set forth at 18 C.F.R. § 292.602(b) and the exemptions from certain state laws and regulations set forth at 18 C.F.R. § 292.602(c).

Rating Agency” shall mean S&P, Moody’s, Fitch or KBRA.

Rebate” shall mean any credits, rebates, subsidies, payments or other incentives that relate to self-generation of electricity, the use of technology incorporated into a Project, environmental benefits of using a Project, or other similar programs available from the public utility, any other state-regulated renewable energy program, the manufacturer of any part of a Project or any Governmental Authority; provided that Rebates do not include SRECs or production tax credits, investment tax credits, grants in-lieu of tax credits and other tax benefits or Grants or manufacturer and equipment warranties and similar payments.

Recapture Period” shall mean, in respect of a Project, the period from the Closing Date through the fifth anniversary of the date that the applicable Project is Placed in Service.

Recipient” shall mean (a) an Agent, (b) any Lender or (c) any other Secured Party, as applicable.

Reeligible Project” shall mean, as of any Scheduled Payment Date, an Eligible Project that was an Ineligibility Prepayment Project in respect of which a prepayment was made under Section 3.04(c) (Ineligibility Events) on a prior Scheduled Payment Date and that is no longer the subject of an Ineligibility Event.

Register” shall have the meaning given to such term in Section 12.05(c) (Register).

Regulation T, Regulation U and Regulation X” shall mean, respectively, Regulation T, Regulation U and Regulation X of the Board.

Release” shall mean any disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping, emptying, seeping, migrating, placing and the like, into, under, through or upon any land or water or air, or otherwise entering into the environment.

Relevant Party” shall mean each of the Loan Parties and each of the Funds (other than the Lessee).

Rents” shall mean the monies owed to the applicable Relevant Party by the Customers pursuant to the Customer Agreements, including any lease payments under any solar lease agreement and power purchase payments under any solar power service agreement or solar power purchase agreement that is a Customer Agreement.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Repayment Factor” shall mean the ratio of (a) all principal outstanding hereunder immediately prior to the applicable prepayment date to (b) the Portfolio Value.

Requisite Experience” shall mean a person that has, for a period of at least three (3) consecutive years within the five (5) years immediately prior to the date of determination, operated at least (a) 200 megawatts of energy generation facilities (of which at least 25 megawatts are residential or commercial solar distributed generation capacity) or (b) 50 megawatts of total aggregate solar distributed generation capacity (of which at least 25 megawatts are residential or commercial solar distributed generation capacity).

Resignation Effective Date” has the meaning set forth in Section 13.08 (Resignation or Removal of Administrative Agent).

Resolution Authority” shall mean any body which has authority to exercise any Write-down and Conversion Powers.

Responsible Officer” shall mean, when used with respect to the Administrative Agent, Collateral Agent or the Depositary Agent, any officer in the corporate trust office of the Administrative Agent, Collateral Agent or the Depositary Agent, including any president, vice president, executive vice president, assistant vice president, treasurer, secretary, assistant secretary, corporate trust officer or any other officer thereof customarily performing functions similar to those performed by the individuals who at the time shall be such officers, respectively, or to whom any matter is referred because of such officer’s knowledge of or familiarity with the particular subject, and, in each case, having direct responsibility for the administration of this Agreement and the other Loan Documents to which such Person is a party. For the avoidance of doubt, receipt of a notice by the Administrative Agent in accordance with Section 12.02 (Notices) shall be sufficient for delivery of notice to a Responsible Officer of the Administrative Agent and receipt of a notice by the Collateral Agent or Depositary Agent in accordance with Section 7.03 (Notices) of the Depositary Agreement shall be sufficient for delivery of notice to a Responsible Officer of such Agent.

Restricted Payment” shall mean, with respect to any Person, (a) any dividend or any distribution (by reduction of capital or otherwise), whether in cash, Property, securities or a combination thereof, to an owner of a beneficial interest in such Person or otherwise with respect to any ownership or equity interest or security in or of such Person and (b) any payments on subordinated debt contemplated by Section 9.01(d) (Indebtedness).

Return Performance” shall mean the demonstration of the Tax Equity Member’s actual internal rate of return (if applicable, determined on both a pre-tax and after-tax basis) since the initial capital contribution date for the applicable Partnership Flip Fund by comparison to its applicable target internal rate of return (if applicable, measured on both a pre-tax and after-tax basis), as shown in the Tracking Model or associated reports, exhibits or supplemental information.

Revenue Termination Amount” shall have the meaning given to it in Section 3.04(b) (Revenue Termination Events).

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Revenue Termination Event” shall mean:

(a)a Project experiences an Event of Loss and is not repaired, restored, replaced or rebuilt to substantially the same condition as existed immediately prior to the Event of Loss within 150 days of such Event of Loss;

(b)the early termination of any Customer Agreement and payment of the termination payment by the applicable Customer in connection with such termination;

(c)the prepayment by the Customer of future amounts due under a Customer Agreement; and

(d)the purchase of any Project by a Customer;

except to the extent any of the events in paragraphs (a) through (d) above occur in respect of a Non-PTO Project.

Rolling Period” means a period of four (4) consecutive fiscal quarters; provided, however, (a) if fewer than four complete consecutive fiscal quarters have elapsed subsequent to the Closing Date, then solely for purposes of calculating the Historical Debt Service Coverage Ratio for the period ending on a Scheduled Payment Date, such period shall be deemed to be the period that has elapsed subsequent to the Closing Date and (b) if fewer than four complete consecutive fiscal quarters remain between any date of measurement and the Final Maturity Date, then solely for purposes of calculating the Projected Debt Service Coverage Ratio for the period commencing on the day following the applicable Scheduled Payment Date, such period shall be deemed to be the period between such date of measurement and the Final Maturity Date.

S&P” shall mean Standard & Poor’s Ratings Group, a division of McGraw-Hill, Inc.

Sanctioned Country” shall mean a country or territory that is the subject of country-wide or territory-wide Sanctions broadly prohibiting dealings with such country or territory  (currently, Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine).

Sanctioned Person” shall mean any Person:  (a) identified on a Sanctions List; (b)  organized, operating from, or ordinarily or resident in, or the government or any agency or instrumentality of the government of, any Sanctioned Country; (c) owned or controlled by, or acting for or on behalf of, directly or indirectly, any Person described in the foregoing clause (a) or (b); or (d) otherwise the subject or target of Sanctions.

Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered, or enforced from time to time by any Sanctions Authority.

Sanctions Authority” shall mean:  (a) the U.S. government, including OFAC and the U.S. Department of State; (b) the United Nations Security Council; (c) the European Union and each of its member states; or (d) the United Kingdom, including Her Majesty’s Treasury.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Sanctions List” shall mean any Sanctions-related list of designated Persons maintained by any Sanctions Authority, including, without limitation, the Specially Designated Nationals and Blocked Persons List maintained by OFAC.

Scheduled Payment Date” shall mean (i) each January 31, April 30, July 31 and October 31 of each year falling after the date hereof, or if any such day is not a Business Day, the immediately preceding Business Day and (ii) the Final Maturity Date; provided, that, for the avoidance of doubt, the first Scheduled Payment Date shall occur on April 30, 2017.

Scheduled Payment Date Report” shall mean a report delivered by the Borrower at least three (3) Business Days before each Scheduled Payment Date pursuant to Section 8.01(a)(v) (Scheduled Payment Date Report), substantially in the form of Exhibit I (Form of Scheduled Payment Date Report) and certified by an Authorized Officer of the Borrower, which shall (a) report in reasonable detail on the principal and interest payable on such Scheduled Payment Date and each other withdrawal and payment made from the Collateral Accounts during the quarter ending on such Scheduled Payment Date, (b) containing the Borrower’s good faith, reasonable and detailed calculation of (i) the Historical Debt Service Coverage Ratio for the Rolling Period ending on such Scheduled Payment Date and (ii) the Projected Debt Service Coverage Ratio for the subsequent Rolling Period commencing on the day following the applicable Scheduled Payment Date, (c) demonstrate any net cash proceeds or other amounts required to be shown pursuant to Section 3.04(h) and (d) containing (i) a comprehensive report of each Eligible Project that became the subject of an Ineligibility Event, Payment Facilitation Event or a Revenue Termination Event occurring during the quarterly period ending on the applicable Scheduled Payment Date and (ii) the Borrower’s good faith, detailed calculation of (x) the aggregate Ineligibility Amount, Payment Facilitation Amount and Revenue Termination Amount accrued during the applicable calendar quarter and all prior calendar quarters, (y) whether a Cumulative Loss Event occurred on the applicable Scheduled Payment Date (including tracking of the reduction in Portfolio Value resulting from or attributable to each Ineligibility Event occurring since the Closing Date against the amount of such reduction in Portfolio Value projected to occur under the Base Case Model from each Ineligibility Event) and (z) any Ineligible Project Prepayment, Payment Facilitation Prepayment or Revenue Termination Amount due and payable on the applicable Scheduled Payment Date, together with such changes thereto as any Lender may from time to time reasonably request for the purpose of monitoring the Borrower’s compliance with Section 3.04(d) (Payment Facilitation Events).

Secured Parties” shall mean the Administrative Agent, Collateral Agent, Depositary Agent and each of the Lenders.

Securities Act” shall mean the Securities Act of 1933, as amended.

Seller” shall mean Vivint Solar Developer, LLC, a Delaware limited liability company.

Service Fees” shall mean, collectively, the “Maintenance Services Fee”, “Additional Services Fee”, “Base Maintenance Services Fee”, “Additional Administrative Services Fee”, “Base Administrative Services Fee”, “Accounting Fee” and “Administrative

FIXED RATE LOAN AGREEMENT

 

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Services Fee” as such terms are defined in the applicable Services Agreements, or such other term used to describe payments for Included System Services or Non-Covered Services.

Servicer Termination Event” shall mean, in respect of a Fund Provider, any of the following:

(a)failure by such Fund Provider to make any payment, transfer or deposit required to be made under the terms of Section 8.15 (Collateral Accounts; Collections) under a Services Agreement within three (3) Business Days of the date required;

(b)failure by such Fund Provider to deliver the Fund Provider’s reports referred to in Section 8.01(a)(iv) (Provider Reporting);

(c)an event of default (howsoever described) or right or cause to remove such Fund Provider arises under a Services Agreement;

(d)an event described in Section 10.01(e) (Involuntary Bankruptcy; Appointment of Receiver, etc) or Section 10.01(f) (Voluntary Bankruptcy; Appointment of Receiver, etc) occurs with respect to such Fund Provider;

(e)at all times that the Provider, Sponsor, a Qualified Purchaser or any of their Affiliates is the Fund Provider, an Event of Default shall have occurred and is continuing; and

(f)termination of a Services Agreement by a Tax Equity Fund (including the Tax Equity Member on its behalf) other than at its normal expiry date in accordance with its terms.

Services Agreements” shall mean individually or collectively, as the context requires, each Administrative Services Agreement and each Maintenance Services Agreement.

Source” shall have the meaning assigned to that term in Section 5.04 (Source of Funds Representations of the Lenders).

Sponsor” shall have the meaning assigned to such term in the Recitals.

Sponsor Guaranties” shall mean individually or collectively, as the context requires, each agreement listed under the heading “Sponsor Guaranties” on Schedule 7.22(a) (Portfolio Documents).

Sponsor Subordinated Indebtedness” shall mean any unsecured Indebtedness of the Borrower to, or held by, the Sponsor or a Qualified Purchaser which is contractually subordinated to the Obligations pursuant to an instrument in writing containing subordination provisions substantially in the form of Exhibit G (Terms of Subordination), and pledged by such Sponsor or Qualified Purchaser to the Collateral Agent as contemplated in Exhibit G (Terms of Subordination), or which is otherwise satisfactory to the Administrative Agent (acting on the written instructions of the Majority Lenders).

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SREC shall mean any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, and attributable to a Project, the production of electrical energy from a Project and its displacement of conventional energy generation, including (a) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (b) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the earth’s climate by trapping heat in the atmosphere; and (c) the reporting rights related to these avoided emissions, including the right of a party to report the ownership of accumulated green tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party, and include green tag reporting rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program; provided that SRECs do not include any rebates or production tax credits, investment tax credits, grants in-lieu of tax credits and other tax benefits or Grants.  Without limiting the generality of the foregoing, SRECs include solar renewable energy certificates issued to comply with a states renewable portfolio standard, carbon trading credits, emissions reduction credits, investment credits, emissions allowances, green tags, tradable renewable credits and Green-e® products.

SREC Aggregator Master PSA” shall have the meaning given to it on Schedule 7.22(a) (Portfolio Documents).

SREC Consents” shall mean the DTE SREC Consent and the BP SREC Consent.

SREC Contract” shall mean a contract for the purchase of SRECs.

SREC Financing Master PSA” shall have the meaning given to it on Schedule 7.22(a) (Portfolio Documents).

SREC Guarantor” shall mean Vivint Solar SREC Guarantor III, LLC, a Delaware limited liability company.

SREC Prepayment Cure Event” shall have the meaning given to it in Section 10.01(m) (SREC Contract Events of Default).

SREC Security Agreement” shall mean that certain pledge and security agreement dated as of the Closing Date by and between each SREC Seller Party and the Collateral Agent for the benefit of the Secured Parties, and as acknowledged by the SREC Guarantor.

SREC Seller Party” shall mean each of Vivint Solar SREC Aggregator, LLC, a Delaware limited liability company, and Vivint Solar SREC Financing, LLC, a Delaware limited liability company.

Subsidiaries” shall mean each Guarantor and each Owned Fund.

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Supplemental Reserve Account” shall have the meaning given to it in the Depositary Agreement.

Supplemental Reserve Required Amount” shall have the meaning given to it in the Depositary Agreement.

Swap Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.

Target Return Date” shall mean (a) in the case of Fund XVIII, the Target Flip Date (as defined in the Limited Liability Company Agreement of Fund XVIII) or (b) in the case of the Lessee, the end of the Initial Term (as defined in the Master Lease Agreement).

Tax Equity Consents and Notices” shall mean each of (a) the consents to collateral assignment, each executed by the applicable Tax Equity Member and (b) the notices regarding collateral assignment and estoppel certificates, each delivered to the applicable Tax Equity Member listed on Schedule 7.22(a) (Portfolio Documents).

Tax Equity Documents” shall mean, for each Tax Equity Fund, the applicable Limited Liability Company Agreement, Master Purchase Agreement, Master Lease Agreement, Project Transfer Agreements, Services Agreement, Fund SREC Transfer Agreement, each Back-Up Servicing Agreement, each Sponsor Guaranty, each other “Transaction Document” as such term is defined in the Limited Liability Company Agreement or Master Lease Agreement of the applicable Tax Equity Funds and any other documents reflecting an agreement between Sponsor (or any Affiliate of Sponsor) and any of the Tax Equity Members relating to such Tax Equity Members’ investment in a Project or Tax Equity Fund.

Tax Equity Fund” shall mean each Fund that is not a Wholly-Owned Fund.

Tax Equity Fund Model” shall mean the applicable financial equity base case model agreed and accepted by Guarantor and the Tax Equity Member in respect of such Tax Equity Member’s tax equity investment in the Tax Equity Fund.

Tax Equity Member” shall mean with respect to (a) any Partnership Flip Fund, a member of such Partnership Flip Fund other than a Guarantor and (b) the Lessor, the Lessee and each member of the Lessee.

Tax Equity Option Amount” shall have the meaning ascribed to such term in the Depositary Agreement.

Tax Exempt Person” shall mean (a) the United States, any state or political subdivision thereof, any possession of the United States or any agency or instrumentality of any of the foregoing, (b) any organization which is exempt from tax imposed by the Code (including any former tax-exempt organization within the meaning of Section 168(h)(2)(E) of the Code),

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(c) any Person who is not a United States Person, (d) any Indian tribal government described in Section 7701(a)(40) of the Code, (e) any “tax-exempt controlled entity” under Section 168(h)(6)(F)(iii) of the Code if such entity has not made the election provided in Section 168(h)(6)(F)(ii) of the Code and (f) any partnership or other pass-through entity, any direct or indirect partner (or other holder of an equity or profits interest) of which is a Person described in clauses (a) through (e); provided, however, that any such Person described in clauses (a) through (e) shall not be considered a Tax Exempt Person to the extent that (i) the exception under Section 168(h)(1)(D) of the Code applies with respect to the income from the applicable Projects for that Person or (ii) the Person is described within clause (c) of this definition, and the exception under Section 168(h)(2)(B)(i) of the Code applies with respect to the income from the applicable Projects for that Person.  A Person shall cease to be a Tax Exempt Person if (A) such Person ceases to be a “tax-exempt entity” within the meaning of Section 168(h)(2) of the Code or any successor provision thereto, by virtue of a change in such section or provision of the Code; or (B) such Person ceases to be a “tax-exempt controlled entity” within the meaning of Section 168(h)(6)(F) of the Code or any successor provision thereto, by virtue of a change in such section or provision of the Code.

Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other similar charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Tracking Model” shall have, as the context requires, the meaning given to the term “Tracking Model” in (a) the Limited Liability Company Agreement for Fund XVIII or (b) the Master Lease Agreement.

Transaction Documents” shall mean, collectively, each of the Loan Documents and Portfolio Documents.

Trigger Event Notice” shall have the meaning given to it in the Depositary Agreement.

U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate” shall have the meaning given to such term in Section 5.02(e)(ii)(B)(III).

Uniform Commercial Code” and “UCC” shall mean the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York.

United States” and “U.S.” shall mean the United States of America.

Unpledged SREC Account” shall have the meaning given to it in the Depositary Agreement.

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[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Use” shall mean, with respect to any Hazardous Material and with respect to any Person, the generation, manufacture, processing, distribution, handling, use, treatment, recycling or storage of such Hazardous Material or transportation to or from the Property of such Person of such Hazardous Material.

Use of Work Products Agreement” shall mean the Agreement with Leidos Engineering, LLC for Use of Work Products in connection with Vivint Solar Residential PV Systems dated on or about the date hereof amongst the Independent Engineer and the Administrative Agent.

Voting Rights” shall mean the right, directly or indirectly, to vote on or cause the direction of the management and policies of a Person in ordinary and extraordinary matters through the ownership of voting securities; provided, however, that a Person shall not be deemed to hold Voting Rights if by contract or by order, decree or regulation of any Governmental Authority, such Person has effectively ceded or been divested of the power to exercise such vote on, or cause the direction of, such management and policies.

Wholly-Owned Fund” shall mean (a) any Partnership Flip Fund where all its issued membership interests are owned by its applicable Guarantor after the buy-out or withdrawal of the applicable Tax Equity Member and (b) the Lessor upon expiration of the Lease Term.

Wholly-Owned Fund Perfection Date” shall mean the date that each Fund (other than the Lessee) has become a Wholly-Owned Fund and the Administrative Agent has confirmed in writing that the Borrower, the applicable Guarantor and each Fund (other than the Lessee) have complied with their obligations under Section 8.08(h) (Preservation of Rights; Maintenance of Projects; Warranty Claims; Security) including, without limitation, by providing a guaranty of, and all Assets security interest for, the Obligations.

Withholding Agent” shall mean Wells Fargo Bank, National Association.

Write-down and Conversion Powers” shall mean:  (a) in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and (b) in relation to any other applicable Bail-In Legislation:  (i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that Bail-In Legislation.

Section 1.02Accounting Terms and Determinations.

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(a)Except as otherwise expressly provided in this Agreement, all accounting terms used in this Agreement shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders under this Agreement shall (unless otherwise disclosed to the Lenders in writing at the time of delivery in the manner described in subsection (b) below) be prepared, in accordance with GAAP as in effect from time to time, and all calculations made for the purposes of determining compliance with this Agreement shall (except as otherwise expressly provided in this Agreement) be made by application of GAAP referred to above; provided, however, that if any financial statements shall be prepared in accordance with GAAP that are materially different from the principles used for the preparation of the financial statements for the preceding applicable period or if any calculations shall be made for the purposes of determining compliance with this Agreement on a basis that is materially different from the basis used for purposes of determining compliance for the preceding applicable period, then the financial statements for the comparable prior period shall be restated and the calculations re-made as specified above to enable a comparison to be made with such prior period; provided, further, that the restatement and remaking of such calculations shall be made solely for comparison purposes and shall not result in any finding of non-compliance hereunder.

(b)The Borrower shall deliver to the Lenders at the same time as the delivery of any annual or quarterly financial statement under Section 8.01(a) (Financial Statements and Other Reports) or (b) (Material Notices) (i) a description in reasonable detail of any material variation between the application of accounting principles employed in the preparation of such statement and the application of accounting principles employed in the preparation of the next preceding annual or quarterly financial statements and (ii) reasonable estimates of the difference between such statements arising as a consequence of any such difference.

(c)To enable the ready and consistent determination of compliance with the terms of this Agreement, the Borrower will not change the last day of its fiscal year from December 31 of each year, or the last days of the first three fiscal quarters in each of its fiscal years from March 31, June 30 and September 30 of each year, respectively.

Section 1.03Time of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 1.04Rules of Construction.  Unless the context otherwise requires:

(a)a term has the meaning assigned to it;

(b)an accounting term not otherwise defined herein and accounting terms partly defined herein, to the extent not defined, shall have the respective meanings given to them under GAAP as in effect from time to time;

(c)“or” is not exclusive;

(d)the words “including,” “includes” and “include” shall be deemed to be followed in each instance by the words “without limitation”;

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(e)words in the singular include the plural and words in the plural include the singular;

(f)words importing any gender include the other gender;

(g)all references to “$” are to United States dollars unless otherwise stated;

(h)any agreement, instrument or statute defined or referred to in this Agreement or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified, supplemented, restated, extended, renewed, consolidated or replaced (without, however, limiting any prohibition on any such amendments, modifications, supplements, restatements, extensions, renewals, consolidations or replacements by the terms of this Agreement) and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein;

(i)references to “writing” include printing, typing, lithography and other means of reproducing words in a tangible visible form;

(j)references to a Person are also to its successors and permitted assigns and, in the case of Government Authorities, Persons succeeding to their respective functions and capacities; and

(k)the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article, Section, Annex, Schedule and Exhibit references are to this Agreement unless otherwise specified.

Article II. Commitments and Loans.

Section 2.01Commitments.

(a)Loans.  Each Lender severally agrees, on the terms and conditions of this Agreement, to make a loan (each, a “Loan”) to the Borrower in Dollars on the Closing Date in a principal amount equal to such Lender’s Commitment.  Each Lender’s Commitment shall terminate immediately and without further action on the Closing Date after giving effect to any funding of such Lender’s Commitment on such date.  The Lenders’ obligations hereunder are several and not joint obligations, and no Lender shall have any liability to any Person for the performance or non-performance of any obligation by any other Lender hereunder.

(b)Conditions and Funding.  The Borrower shall give each Lender at least two (2) Business Days (or such shorter period acceptable to the Lenders) prior written notice of the proposed borrowing of the Loans as provided in Section 4.05 (Certain Notices), stating:

(i)the aggregate amount of the requested Loans from the Lenders;

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(ii)the proposed Closing Date, which shall be a Business Day no later than January 5, 2017;

(iii)that contemporaneously with the borrowing of the Loans, the conditions precedent set forth in Section 6.01 (Conditions of Borrowing) shall be satisfied or waived; and

(iv)that the proceeds of such Loans are to be disbursed in accordance with the Closing Date Funds Flow Memorandum.

A Notice of Borrowing submitted by the Borrower pursuant to this clause (b) shall be irrevocable and shall be signed by an Authorized Officer of the Borrower.

(c)The Borrower shall use the proceeds of the Loans borrowed under this Section 2.01 solely (i) to fund (x) the Debt Service Reserve Required Amount into the Debt Service Reserve Account, (y) the Supplemental Reserve Required Amount into the Supplemental Reserve Account and (z) the Inverter Replacement Reserve Required Amount into the Inverter Replacement Reserve Account, in each case in accordance with the Depositary Agreement, (ii) to pay fees due pursuant to the Loan Documents and costs and expenses incurred pursuant to the Loan Documents or otherwise in connection with this financing, (iii) to consummate the Closing Date Assignments under the Closing Date Assignment Agreements and release the Guarantors from their guarantees under the Aggregation Facility (with any excess proceeds received by the Aggregation Facility Borrower, after repayment of the Indebtedness under the Aggregation Facility, permitted to be distributed to the Sponsor for working capital purposes) and (iv) after the application of proceeds in accordance with paragraphs (i) through (iii) above, any remaining proceeds may be applied to make distributions to the Sponsor for working capital purposes.

(d)Subject to satisfaction (or waiver) of the conditions to the borrowing of the Loans set forth in ARTICLE VI (Conditions Precedent), each Lender shall make the amount of its Loan available to the Borrower on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of its Loan to be credited to the account of the Borrower designated in the Closing Date Funds Flow Memorandum and the Notice of Borrowing delivered pursuant to Section 2.01(b) (Conditions and Funding).  Amounts borrowed under Section 2.01(b) (Conditions and Funding) and subsequently repaid or prepaid may not be reborrowed.

Section 2.02Notes.

(a)Evidence of Debt.  The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall constitute prima facie evidence of the accuracy of the information contained therein.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters,

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the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Payment by the Administrative Agent to the Lenders in accordance with the terms hereof shall not require presentment of any Note.

(b)Execution and Delivery of Notes.  Upon the request of any Lender, the Borrower shall duly execute and deliver to such Lender a promissory note substantially in the form of Exhibit A (Form of Note) (each, a “Note”), in favor of such Lender in a principal amount equal to such Lender’s Loan, with blanks appropriately completed in conformity herewith.  Each Lender is hereby authorized, at its option, either (i) to endorse on the schedule attached to each of its Notes (or on a continuation of such schedule attached to such Note and made a part thereof) an appropriate notation evidencing the date, amount and maturity of its Loan and payments with respect thereto or (ii) to record the date, amount and maturity of its Loan and payments with respect thereto in its books and records as contemplated by Section 2.02(a).  Such schedule or such books and records, as the case may be, shall constitute prima facie evidence of the accuracy of the information contained therein; provided that the failure of any Lender to make such notations or maintain such records or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.

Section 2.03Agency Fee. The Borrower shall pay to the Agents, for their own account, the agency fees (collectively, the “Agency Fee”) for each year in the amount set forth in the Agency Fee Letter.

Section 2.04Several Obligations; Remedies Independent.  The failure of any Lender to make any Loan to be made by it shall not relieve any other Lender of its obligation to make its Loan on such date, but neither Lender nor Administrative Agent shall be responsible for the failure of any other Lender to make a Loan.  Each Lender shall independently be entitled to protect and enforce its right to payment of the Obligations which are then due and payable to such Lender (it being understood that the acceleration of the Loans and the termination of the Commitments shall be governed by Section 10.02 (Acceleration and Remedies) and the exercise of remedies with respect to the Collateral shall be subject to the terms of Section 10.02 (Acceleration and Remedies) of this Agreement and the Collateral Documents).

Article III. Payments of Principal and Interest

.

Section 3.01Repayment of Loans.

(a)Loans.  The Borrower hereby agrees to pay to each Lender the principal of such Lender’s outstanding Loan at par and without payment of the Make-Whole Amount on each Scheduled Payment Date in accordance with installment amounts set forth for such date in the Amortization Schedule.  All unpaid principal of each Loan shall be due and payable at par and without payment of the Make-Whole Amount in full on the Final Maturity Date.

Section 3.02Interest on the Loans.

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(a)Interest on Loans.  The Borrower hereby agrees to pay to each Lender interest on the unpaid principal amount of a Loan made by such Lender (and on the Note evidencing such Loan) for the period from and including the date such Loan is made until such Loan shall be paid in full, at a rate per annum equal to the Interest Rate.

(b)Default Interest.  Notwithstanding the foregoing, if any principal of, or the Make-Whole Amount or interest on, any Loan or any fee or other amount payable by the Borrower under this Agreement or any other Loan Document is not paid when due (whether at stated maturity, upon acceleration, by mandatory prepayment or otherwise), such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to the Post-Default Rate for the period from and including the due date thereof to but excluding the date such amount is paid in full.

(c)Payment of Interest.  Accrued interest on each Loan shall be payable (i) in arrears on each Scheduled Payment Date and (ii) upon the payment or prepayment of such Loan (but only on the principal amount so paid or prepaid), except that interest payable at the Post-Default Rate shall be payable from time to time on demand (or, if no demand is made during any month, on the last day of such month).

Section 3.03Optional Prepayments.  Subject to Section 3.05 (Additional Conditions of Prepayment) and Section 4.04 (Minimum Amounts), the Borrower shall have the right to prepay the Loans in whole or in part at any time, provided that the Borrower shall give the Lenders and the Administrative Agent irrevocable notice of each such prepayment as provided in Section 4.05 (Certain Notices) and, upon the date specified in any such notice of prepayment, the amount to be prepaid shall become due and payable.  Each such notice shall specify the prepayment date and the interest to be paid on the prepayment date with respect to such prepayment.  Each such notice shall be accompanied by a certificate of the Borrower as to the estimated Make-Whole Amount due in connection with any such prepayment of Loans, setting forth the details of such computation, and two Business Days prior to such prepayment, the Borrower shall deliver to the Lenders and the Administrative Agent a notice specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

Section 3.04Mandatory Prepayments.  The Borrower shall make the following mandatory payments (as prepayments to be effected in each case in the manner specified in Section 3.05 (Additional Conditions of Prepayment)):

(a)Incurrence of Indebtedness.  On the date of receipt thereof, the Borrower shall apply towards the mandatory prepayment of the Loans, accrued interest and the applicable Make-Whole Amount in accordance with Section 3.05 (Additional Conditions of Prepayment), 100% of the Net Available Amount of all proceeds in cash and cash equivalents (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) to the Borrower or any other Loan Party from, without limitation to ARTICLE X (Events of Default; Remedies), the issuance or incurrence of any Indebtedness by any Relevant Party (other than as permitted to be incurred pursuant to Section 9.01 (Indebtedness)).

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(b)Revenue Termination Events.  On each Scheduled Payment Date the Borrower shall apply towards the mandatory prepayment of the Loans and applicable accrued interest in accordance with Section 3.05 (Additional Conditions of Prepayment), an amount (the “Revenue Termination Amount”) equal to the Prepayment Amount for each Revenue Termination Event occurring during the calendar quarter ending on the immediately prior Calculation Date; provided that a failure to pay the Revenue Termination Amount in full on the applicable Scheduled Payment Date will not, in and of itself, result in an Event of Default hereunder, but such unpaid amount shall remain payable on subsequent Scheduled Payment Dates under this Section 3.04(b) until paid in full.

(c)Ineligibility Events.  On each Scheduled Payment Date, the Borrower shall apply towards the mandatory prepayment of the Loans and applicable accrued interest in accordance with Section 3.05 (Additional Conditions of Prepayment), the Ineligibility Prepayment Amount determined for such Scheduled Payment Date; provided further, that no prepayment of the Loans shall be required under this Section 3.04(c) (Ineligibility Events) if (i) the Historical Debt Service Coverage Ratio for the Rolling Period ending on such Scheduled Payment Date is not less than 1.50:1.00; and (ii) the Projected Debt Service Coverage Ratio for the subsequent Rolling Period commencing on the day following the applicable Scheduled Payment Date is not less than 1.50:1.00, and the Borrower shall have delivered a Scheduled Payment Date Report to the Administrative Agent and Lenders certifying to the same; provided, further that a failure to pay the Ineligibility Prepayment Amount in full on the applicable Scheduled Payment Date will not, in and of itself, result in an Event of Default hereunder, but such unpaid amount shall remain payable on subsequent Scheduled Payment Dates under this Section 3.04(c) until paid in full.

(d)Payment Facilitation Events.  On each Scheduled Payment Date, the Borrower shall apply amounts on deposit in the Distribution Suspense Account towards the mandatory prepayment of the Loans and applicable accrued interest in accordance with Section 3.05 (Additional Conditions of Prepayment), an amount equal to (i) an amount (the “Payment Facilitation Amount”) determined as the Prepayment Amount for each Payment Facilitation Event occurring during the calendar quarter ending on the immediately prior Calculation Date plus (ii) any Payment Facilitation Amount remaining unpaid following any mandatory prepayment under this Section 3.04(d) on a prior Scheduled Payment Date.

(e)Distribution Trap Cash Sweep.  On each Scheduled Payment Date during an Early Amortization Period, the Borrower shall apply towards the mandatory prepayment of the Loans and applicable accrued interest in accordance with Section 3.05 (Additional Conditions of Prepayment), 100% of the amounts that have been deposited in and standing to the credit of the Distribution Suspense Account.

(f)Eligible SREC Contract Claim Proceeds.  In the event that the SREC Guarantor or a SREC Seller Party receives any proceeds from claims made under any Eligible SREC Contract (including any liquidated damages or termination proceeds) or any proceeds are received from the enforcement of the SREC Security Agreement, the Borrower shall apply 100% of such proceeds towards the mandatory prepayment of the Loans and applicable accrued interest in accordance with Section 3.05 (Additional Conditions of Prepayment).

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(g)Cash Sweep for Manager Event and Lessor Default. Without limiting Section 10.01(k) (Removal of Managing Member) or Section 10.02 (Acceleration and Remedies), on each Scheduled Payment Date after the occurrence and during the continuance of a Manager Event or a Lessor Default, the Borrower shall apply towards the mandatory prepayment of the Loans and applicable accrued interest in accordance with Section 3.05 (Additional Conditions of Prepayment), 100% of the amounts that have been deposited in and standing to the credit of the Collections Account and the Distribution Suspense Account after giving effect to all prior withdrawals and transfers pursuant to Sections 4.02(a)(i) to (xi) of the Depositary Agreement.

(h)Cash Sweep for Excess ITC Insurance Policy Proceeds. On the Scheduled Payment Date immediately following the Borrower’s receipt of proceeds into the ITC Insurance Policy Account in respect of any ITC Insurance Loss, the Borrower shall apply towards the mandatory prepayment of the Loans and applicable accrued interest, in accordance with Section 3.05 (Additional Conditions of Prepayment), 100% of the amounts remaining on deposit in and standing to the credit of the ITC Insurance Policy Account, after the ITC Insurance Loss has been paid in full to the Tax Equity Member of Fund XVIII in accordance with Section 4.02(j) of the Depositary Agreement.

(i)Concurrently with any prepayment of the Loans pursuant to Section 3.04(a) (Incurrence of Indebtedness) or (f)Section 3.04(f) (Eligible SREC Contract Claim Proceeds), Borrower shall deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower including a demonstration of the calculation of the amount of the applicable net cash proceeds or other amounts to be prepaid, as the case may be.  In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer of the Borrower demonstrating the derivation of such excess.

(j)No prepayment shall be due and payable (i) under Section 3.04(b) (Revenue Termination Events) until the Scheduled Payment Date occurring immediately after the Revenue Termination Amount accrued from all prior calendar quarters is at least equal to $1,000,000 (and such unpaid accrued aggregate amount shall be paid in full from available cash on such Scheduled Payment Date or future Scheduled Payment Dates), and (ii) under Section 3.04(d) (Payment Facilitation Events), until the Scheduled Payment Date occurring immediately after the Payment Facilitation Amount accrued from all prior calendar quarters is at least equal to $1,000,000 (and such unpaid accrued aggregate amount shall be paid in full from available cash on such Scheduled Payment Date or future Scheduled Payment Dates).

Section 3.05Additional Conditions of Prepayment.

(a)Additional Payments.  Any prepayment by the Borrower pursuant to Section 3.03 (Optional Prepayments) or Section 3.04 (Mandatory Prepayments) shall be made simultaneously with, and is conditioned upon, the payment by the Borrower of accrued interest pursuant to Section 3.02(c) (Payment of Interest) and in the case of any prepayment of the Loans

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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pursuant to Section 3.03 (Optional Prepayments) and Section 3.04(a) (Incurrence of Indebtedness), the applicable Make-Whole Amount for the relevant prepayment date.

(b)Application of Prepayments.  Amounts prepaid pursuant to Section 3.03 (Optional Prepayments) or Section 3.04 (Mandatory Prepayments) shall be applied on a pro rata basis to the outstanding Loans to be applied pro rata to remaining scheduled installments thereof.  Each prepayment shall be paid to the Lenders in accordance with their respective pro rata share of the outstanding principal amount of such Loan.  In connection with any prepayment made pursuant to Section 3.04(a) (Incurrence of Indebtedness) the Borrower shall deliver to the Lenders and the Administrative Agent a notice specifying the calculation of such Make-Whole Amount as of the applicable prepayment date.

Article IV. Payments; Pro Rata Treatment; Computations; Etc.

Section 4.01Payments.

(a)Scheduled Payment Date Report.  At least three (3) Business Days prior to each Scheduled Payment Date, the Borrower shall deliver, or cause Manager to deliver, to the Administrative Agent, Collateral Agent, and Depositary Agent a Scheduled Payment Date Report.  All withdrawals and transfers will be made based upon the information provided in the Scheduled Payment Date Report.

(b)Payments Generally.  All payments to be made by the Borrower shall be made free and clear of any Liens and without restriction, condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise provided below, all payments made with respect to the Loans on each Scheduled Payment Date shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its pro rata share of the principal amount paid according to the outstanding principal amounts of the applicable Loan held by the Lenders (or other applicable share of such payment as expressly provided herein) in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 12:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

(c)The Borrower shall, at the time of making each payment under this Agreement specify the Loans or other amounts payable by the Borrower under this Agreement to which such payment is to be applied (and in the event that it fails to so specify, or if an Event of Default has occurred and is continuing, the Lenders may apply such payment in such manner as the Majority Lenders, subject to Section 4.02 (Pro Rata Treatment), may determine to be appropriate).

(d)If the due date of any payment under this Agreement would otherwise fall on a day which is not a Business Day such date shall be extended to the next succeeding

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

Section 4.02Pro Rata Treatment.  Except to the extent otherwise provided in this Agreement:  (a) the borrowing of Loans under Section 2.01 (Commitments) shall be made from the Lenders pro rata according to the amounts of their respective Commitments, (b) each payment or prepayment of principal of Loans by the Borrower shall be made for the account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them, (c) each payment of interest on the Loans by the Borrower shall be made for the account of the Lenders pro rata in accordance with the amounts of interest on the Loans then due and payable to the respective Lenders, and (d) each payment of any Make-Whole Amount by the Borrower shall be made for the account of the Lenders pro rata in accordance with the amounts of the applicable Make-Whole Amount then due and payable to the respective Lenders.

Section 4.03Computations.  Interest on the Loans will be calculated on the basis of a year of 360 days with twelve (12) thirty day months.  Interest on other obligations of the Borrower or the Lenders that are computed on the basis of the Interest Rate shall be computed 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 payable.

Section 4.04Minimum Amounts. Except for mandatory prepayments made pursuant to Section 3.04 (Mandatory Prepayments), the borrowing and partial prepayment of principal of Loans shall be in an amount equal to $5,000,000 or any higher multiple of $250,000 (or, if less, the full amount of such Loans outstanding).

Section 4.05Certain Notices.  Notices by the Borrower to the Lenders of terminations or reductions of the Commitments, of the borrowing or optional prepayments of Loans shall be irrevocable and shall be effective only if received by the Administrative Agent and the Lenders not later than 11:00 a.m., New York City time, on the number of Business Days prior to the date of the relevant borrowing or prepayment specified below:

Notice

Number of
Business
Days Prior

Borrowing of Loans

3

Prepayment of Loans

10

 

The Notice of Borrowing of Loans shall be in the form of Exhibit B (Form of Notice of Borrowing) and shall be subject to the satisfaction of the conditions set forth in Section 6.01 (Conditions of Borrowing).  Each notice of optional prepayment shall specify the amount (subject to Section 4.04 (Minimum Amounts)) of each Loan to be prepaid, the date of optional prepayment (which shall be a Business Day) and other information required pursuant to Section 3.03 (Optional Prepayments).  

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Section 4.06Set Off; Sharing of Payments; Etc.

(a)The Borrower agrees that, in addition to (and without limitation of) any right of set-off, banker’s lien or counterclaim a Lender may otherwise have, each Lender shall be entitled, at its option, to offset balances held by it or any of its Affiliates for account of the Borrower at any of its or any of its Affiliates’ offices in Dollars or in any other currency, against any principal of or interest on any of such Lender’s Loans or any other amount payable to such Lender under this Agreement, that is not paid when due (regardless of whether such balances are then due to the Borrower), in which case it shall promptly notify the Borrower and each other Lender of such action; provided that such Lender’s failure to give such notice shall not affect the validity of such action.  If any Lender shall obtain from the Borrower any amount under this Agreement or any other Loan Document through the exercise of any right of set-off, it shall promptly transfer any such amounts (net of any expenses which may be incurred by such Lender in obtaining or preserving such amount) to the Collateral Agent to be applied by the Collateral Agent in accordance with Section 2.02 (Distribution of Collateral Proceeds) of the Collateral Agency Agreement.

(b)Except as otherwise provided in clause (a) above, if any Lender shall obtain from the Borrower payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any other Loan Document through the exercise of any right of set-off, banker’s lien or counterclaim or similar right or otherwise, and, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on the Loans or such other amounts then due hereunder by the Borrower to such Lender than the percentage received by any other Lender, it shall promptly purchase from such other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or in interest due on such Loans or other amounts, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, with the effect that all the Lenders shall share the benefit of such excess payment (net of any expenses which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of or interest on the Loans or such other amounts, respectively, owing to each of the Lenders.  To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored.

(c)The Borrower agrees that any Lender so purchasing such a participation (or direct interest) may exercise all rights of set-off, banker’s liens, counterclaims or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.

(d)Nothing contained in this Agreement shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower.  If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a set-off to which this Section 4.06 (Set Off; Sharing of Payments; Etc.) applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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claim in a manner consistent with the rights of the Lenders entitled under this Section 4.06 (Set Off; Sharing of Payments; Etc.) to share in the benefits of any recovery on such secured claim.

Article V. Additional Provisions Applicable to Loans

.

Section 5.01Increased Costs.

(a)If any Change in Law:

(i)imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender;

(ii)subjects any Recipient to any Taxes (other than Indemnified Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)imposes on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or any participation therein;

and the result of any of the foregoing is to increase materially the cost to such Lender or such other Recipient of making or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to reduce materially the amount of any sum received or receivable by it under any Loan Document, then, upon request of such Lender or other Recipient, the Borrower shall pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for the additional costs incurred or reduction suffered.

(b)If any Lender reasonably determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on its capital or (without duplication) on the capital of its holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or its holding company would have achieved but for that Change in Law (taking into consideration such of Lender’s and its holding company’s policies with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or (without duplication) its holding company for any such reduction suffered (except to the extent the Borrower is excused from payment pursuant to Section 5.03 (Mitigation of Obligations)).

(c)To claim any amount under this Section 5.01 (Increased Costs), a Lender must deliver to the Borrower (with a copy to the Administrative Agent) a certificate setting forth the amount or amounts necessary to compensate it or its holding company, as the case may be, under Section 5.01(a) (Increased Costs) or (b) (Increased Costs), which certificate shall state in reasonable detail the basis for such claim.  The Borrower shall pay such Lender the amount due

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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and payable and set forth on any such certificate within 10 Business Days after its receipt, which shall be conclusive absent manifest error.

(d)Failure or delay on the part of any Lender to demand compensation pursuant to this Section 5.01 (Increased Costs) shall not constitute a waiver of its right to demand that compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 5.01 (Increased Costs) for any increased costs or reductions incurred more than 180 days prior to the date on which it notifies the Borrower of the Change in Law giving rise to those increased costs or reductions and of its intention to claim compensation for those circumstances; provided further that, if the Change in Law giving rise to those increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include that period of retroactive effect.

Section 5.02Taxes.

(a)Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.

(i)Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law (which, for purposes of this Section 5.02 (Taxes), shall include FATCA).  If any applicable Law (as determined in the good faith discretion of the Withholding Agent or the Borrower, as applicable, taking into account the information and documentation delivered pursuant to Section 5.02(e)) requires the deduction or withholding of any Tax from any such payment by the Withholding Agent or the Borrower, then the Withholding Agent or the Borrower 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 such applicable Law.

(ii)If the Administrative Agent or the Borrower are required to deduct or withhold any Tax described in Section 5.02(a)(i) and must timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with an applicable Law, and if the 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 5.02 (Taxes)) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(b)Payment of Other Taxes by the Borrower.  Without limiting the provisions of Section 5.02(a) above, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)Tax Indemnifications.

FIXED RATE LOAN AGREEMENT

 

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(i)The Borrower shall and does hereby indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after written 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 5.02(c) (Tax Indemnifications)) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable out-of-pocket 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 and shall indemnify the Administrative Agent as Withholding Agent; provided that the Borrower shall not be required to compensate any Recipient pursuant to this Section 5.02(c) (Tax Indemnifications) for any interest, additions to tax or penalties that accrue after 180 days from the date such Recipient first receives notice of the relevant Indemnified Taxes if such Recipient does not provide such notice to the Borrower within 180 days from such date of receipt.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.  The Borrower shall and does hereby indemnify the Administrative Agent and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 5.02(c)(ii).

(ii)Each Lender shall and does hereby severally indemnify, and shall make payment in respect thereof within ten (10) days after demand therefor, (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (B) the Administrative Agent and the Borrower, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.05(d) (Participations) relating to the maintenance of a Participant Register and (C) the Administrative Agent and the Borrower, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or the Borrower in connection with any Loan 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 Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender, as the case may be, under this Agreement or any other Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (ii).

(d)Evidence of Payments.  As soon as practicable after any payment of Taxes by the Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 5.02, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.

(e)Status of Lenders; Tax Documentation.

(i)Any Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Recipient, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative 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 the documentation set forth in Section 5.02(e)(ii)(A), (B) and (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 each Lender agrees that on the Closing Date or any other date after the Closing Date such Lender becomes a party to this Agreement, and from time to time thereafter upon reasonable request, it will deliver to each of the Borrower and the Administrative Agent the applicable documentation described below:

(A)any Recipient that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Recipient becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to (x) the Closing Date or (y) such other date on which such Recipient becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), in the case of clause (y) to the extent it is legally entitled to do so, whichever of the following is applicable:

(I)in the case of a Foreign Lender 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 Loan Document,

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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an executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E (whichever is applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty, and/or (y) with respect to any other applicable payments under any Loan Document, an executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E (whichever is applicable) 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;

(II)executed copies of IRS Form W-8ECI;

(III)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) an executed certificate substantially in the form of Exhibit O-1 (Form of U.S. Tax Compliance Certificate) to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E (whichever is applicable); or

(IV)to the extent a Foreign Lender is not the beneficial owner, an executed copy of IRS Form W-8IMY, accompanied by one or more of the following executed forms from each of the Foreign Lender's direct or indirect partners/members, or Participants, or any Participant's direct or indirect partners/ members, as appropriate: IRS Form W-8ECI, IRS Form W-8BEN, or IRS Form W-8BEN-E (whichever is applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit O-2 (Form of U.S. Tax Compliance Certificate) or Exhibit O-3 (Form of U.S. Tax Compliance Certificate), IRS Form W-8IMY, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership for U.S. federal income tax purposes and one or more direct or indirect partners/members of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender shall provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit O-4 (Form of U.S. Tax Compliance Certificate) on behalf of each such direct and indirect partner/member;

(C)any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to (x) the Closing Date or (y) such other date on which such

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Foreign Lender becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), in the case of clause (y) to the extent it is legally entitled to do so, executed copies 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 or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)if a payment made to a Recipient under any Loan 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 Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative 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 to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the Closing Date.

(iii)Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.02 (Taxes) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

Wells Fargo Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent, has no liability to the Borrower, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld from any payment pursuant to applicable Law or arising from the Borrower’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.

(f)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 5.02 (Taxes) (including by the payment of additional amounts pursuant to this Section 5.02 (Taxes)), 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 5.02 (Taxes) with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by 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

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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party the amount paid over pursuant to this Section 5.02(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this Section 5.02(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.02(f) 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 Section 5.02(f) 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 Borrower or any other Person.

(g)Survival.  Each party’s obligations under this Section 5.02 (Taxes) shall survive the resignation or replacement of the Administrative 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 other Obligations.

Section 5.03Mitigation of Obligations.  If any Lender requests compensation under Section 5.01 (Increased Costs), or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, or any Governmental Authority for the account of any Lender, pursuant to Section 5.02 (Taxes), then at the request of the Borrower such Lender shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 5.02 (Taxes) or Section 5.01 (Increased Costs) (as the case may be), in the future, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

Section 5.04Source of Funds Representations of the Lenders.  Each Lender severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by it to make the Loans to be made by it hereunder:

(a)the Source is a separate account that is maintained solely in connection with such Lender’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

(b)the Source is either (A) an insurance company pooled separate account, within the meaning of the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 90-1, or (B) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Lender to the Borrower in writing pursuant to this paragraph (b), no employee benefit plan or group of plans maintained by the same employer or

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

(c)(A) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), (B) no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, (C) the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, (D) neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Borrower that would cause the QPAM and the Borrower to be “related” within the meaning of Part VI(h) of the QPAM Exemption, and (E) the identity of such QPAM and, except where the Source satisfies the exception set forth in the last paragraph of Part I(a) of the QPAM Exemption, the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Borrower in writing pursuant to this paragraph (c); or

(d)the Source is a governmental plan; or

(e)the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Borrower in writing pursuant to this paragraph (e); or

(f)the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA and Section 4975 of the Code; or

(g)the Source is an “insurance company general account” (as the term is defined in PTE 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Lender’s state of domicile; or

(h)the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Borrower and (i) the identity of such

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Borrower in writing pursuant to this paragraph (h).

As used in this Section 5.04 (Source of Funds Representations of the Lenders), the terms “employee benefit plan”, “governmental plan” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.

Article VI. Conditions Precedent.

Section 6.01Conditions of Borrowing.  The Closing Date shall occur on the date that each of the following conditions precedent have been satisfied or waived in writing by each Lender:

(a)Closing Date Deliverables.  The Administrative Agent and the Lenders’ receipt of the following, each of which shall be originals or executed electronic copies unless otherwise specified, each properly executed (where applicable) by an Authorized Officer of the Borrower, and, in the case of the Loan Documents, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):

(i)Notice of Borrowing.  A Notice of Borrowing in accordance with the requirements of Section 2.01 (Commitments).

(ii)Loan Documents.  Executed counterparts of:

(A)this Agreement, together with all Exhibits, Schedules and Appendices thereto, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;

(B)the Collateral Agency Agreement;

(C)the Depositary Agreement;

(D)a Note executed by the Borrower in favor of each Lender;

(E)the Tax Equity Consents and Notices;

(F)the SREC Consents;

(G)the Management Consent Agreement;

(H)the Closing Date Assignment Agreements;

(I)each Back-Up Servicing Agreement;

(J)the Agency Fee Letter; and

(K)the Master SREC Purchase and Sale Agreements.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(iii)Portfolio Documents.  Fully executed copies of all Portfolio Documents (which may be provided electronically on a USB flash drive) (except for the Project Transfer Agreements and the Customer Agreements, which shall be delivered pursuant to Section 8.14 (Post-Closing Deliverables)), accompanied by an Officer’s Certificate certifying:

(A)that each such copy provided to the Administrative Agent and the Lenders is a true, correct and complete copy of such document;

(B)each such Portfolio Document (1) has been duly executed and delivered by the Sponsor and each Relevant Party party thereto and, to the Knowledge of the Borrower, the other parties thereto, and (2) is in full force and effect and is enforceable against the Sponsor and each Relevant Party party thereto and, to the Knowledge of the Borrower, each other party thereto as of such date;

(C)neither the Sponsor nor any Relevant Party party thereto nor, to the Knowledge of the Borrower and, any other party to such Portfolio Document is or, but for the passage of time or giving of notice or both, will be in breach of any material obligation under a Portfolio Document, except as could not reasonably be expected, in the aggregate across all Portfolio Documents, to have a Material Adverse Effect;

(D)no Portfolio Document has an event of force majeure existing thereunder, except solely with respect to the Project Documents, where such event of force majeure (itself or when coupled with other events of force majeure under such Project Documents) could not reasonably be expected to have a Material Adverse Effect;

(E)to the Knowledge of the Borrower, the warranties for all equipment comprising, and used in the installation of, the Projects is in full force and effect, except as could not reasonably be expected, in the aggregate across all such warranties and Projects, to have a Material Adverse Effect;

(F)to the Knowledge of the Borrower, no condemnation is pending or threatened, and no unrepaired casualty exists, with respect to any of the Projects in the Project Pool, except as could not reasonably be expected, in the aggregate across all such Projects, to have a Material Adverse Effect; and

(G)all conditions precedent to the effectiveness of such Portfolio Documents have been satisfied or waived in writing.

(iv)Collateral Documents.  Executed counterparts of the Pledge Agreement, the Borrower Collateral Agreement, the Guarantor Collateral Agreement, the SREC Security Agreement, in each case, duly executed by the applicable Loan Parties, SREC Seller Parties, together with:

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(A)Membership Interest Certificates.  Certificates representing the pledged equity referred to therein (in the form required by the applicable limited liability company agreement) accompanied by undated stock powers executed in blank and instruments evidencing any pledged debt indorsed in blank;

(B)Financing Statements.  Proper financing statements in form appropriate for filing under the applicable Uniform Commercial Code in order to perfect the Liens created under the Collateral Documents (covering the Collateral described therein);

(C)Perfection.  Evidence that all other action necessary in order to perfect the Liens created under the Collateral Documents has been taken or will be taken on the Closing Date; and

(D)Recent Lien Search.  The results of a recent lien search in each of the jurisdictions in which UCC financing statement or other filings or recordations should be made to evidence or perfect security interests in all Assets of the Borrower, the Relevant Parties and the SREC Seller Parties and such search shall reveal no Liens on any of the Assets of the Borrower, the Relevant Parties, the SREC Seller Parties or otherwise on the Collateral, other than Permitted Liens.

(v)Financial Statements.  To the extent not publicly available, copies of the (i) audited Financial Statements of Sponsor for the 2015 fiscal year and (ii) audited Financial Statements of each Fund for the 2015 fiscal year, in each case accompanied by an officer’s certificate of the Borrower certifying that such copies are correct and complete and that such statements have been prepared in accordance with GAAP.

(vi)Organizational Documents.  A copy of the certificate of formation, limited liability company agreement, operating agreement or other organizational documents of each Relevant Party and the SREC Seller Parties, certified by the secretary of such Person as being true, correct and complete copy of such document (and includes all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters).

(vii)Resolutions and Incumbency Certificates.  Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of the Relevant Parties and the SREC Seller Parties authorizing, as applicable, the Loans and the guarantees given by the Loan Parties, the granting of the Liens under the Collateral Documents and the execution delivery and performance of this Agreement and the other Transaction Documents and evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Agreement and the other Loan Documents to which any SREC Seller Party or any Relevant Party is a party or is to be a party, in each case, certified by the secretary of such Person.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(viii)Secretary’s Certificates.  Such documents and certifications as necessary to evidence that each Relevant Party and each SREC Seller Party is duly formed, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of Properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

(ix)Legal Opinions.  Favorable opinions of counsel to the Relevant Parties and the SREC Seller Parties in relation to the Loan Documents, each Back-Up Servicing Agreement, the Management Agreement and the Fund SREC Transfer Agreements, addressed to the Lenders and each Secured Party from Latham & Watkins LLP, counsel for the Relevant Parties, each SREC Seller Party and the Sponsor, including opinions regarding the attachment, perfection of security interests in Collateral and corporate matters (including, without limitation, enforceability, no consents, no conflicts with the Limited Liability Company Agreements, Master Lease Agreement, Lease Depositary Agreement, Sponsor Guaranties and certain financing documents and Investment Company Act matters);

(x)Officer’s Certificate.  An Officer’s Certificate:

(A)either (1) attaching copies of all consents, licenses and approvals required from any third party (including a Tax Equity Member) or Governmental Authority in connection with the Loans and the guarantees given by the Loan Parties, the granting of the Liens under the Collateral Documents, the consummation of the Closing Date Assignments and the execution, delivery and performance of this Agreement and the other Transaction Documents and the validity against each Relevant Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect and not subject to appeal, or (2) certifying that no such consents, licenses or approvals are so required;

(B)certifying that the conditions specified in Section 6.01(j) (Representations and Warranties), Section 6.01(k) (No Action by Governmental Authority), Section 6.01(l) (No Default or Event of Default), Section 6.01(o) (Closing Date Assignments) and Section 6.01(p) (SREC Transactions) have been satisfied;

(C)certifying that,  (I) after giving effect to the issuance of the Loans (and the use of proceeds thereof), the fair saleable value of the Assets of the Borrower and the Subsidiaries, taken as a whole, exceeds and will, immediately following the making of any Loans, exceed such Persons’ total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent obligations;  (II) the fair saleable value of Assets of the Borrower and the Subsidiaries, taken as a whole, is and will, immediately following the making of any Loans (and the use of proceeds thereof), be greater than such Persons’ probable liabilities, including the maximum amount of its contingent obligations

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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on its debts as such debts become absolute and matured; (III) the Assets of the Borrower and the Subsidiaries, taken as a whole, do not and, immediately following the making of any Loans (and the use of proceeds thereof) will not, constitute unreasonably small capital to carry out the business of such Persons as conducted or as proposed to be conducted; and (IV) the Borrower does not intend for it or any Subsidiary to, and does not believe that any such Person will, incur Indebtedness and liabilities beyond its ability to pay such Indebtedness and liabilities as they mature (taking into account the timing and amounts of cash to be received by the Borrower and the amounts to be payable on or in respect of obligations of the Borrower);

(D)certifying that no Provider Event, Manager Event or Lessor Default has occurred and is continuing; and

(E)certifying that there has been no event or circumstance since December 31, 2015 that has had or could reasonably be expected to have a Material Adverse Effect.

(xi)Warranties.  Evidence that all warranties relating to the Projects in the Project Pool inure to the benefit of, and are enforceable by, the relevant Subsidiary.

(xii)Funds Flow Memorandum.  The Closing Date Funds Flow Memorandum outlining the use of the Loans.

(xiii)Tax Equity Fund Models.  The then-current Tax Equity Fund Model for each Fund, as last approved by the applicable Tax Equity Member

(b)Base Case Model and Model Auditor Report

.  The Administrative Agent and the Lenders have received the Base Case Model and a report from the Model Auditor in respect of the Tax Equity Fund Models in form and substance satisfactory to the Lenders and addressed to the Lenders.

(c)Initial Operating Budget.  The Administrative Agent and the Lenders have received the initial Operating Budget required pursuant to Section 8.01(e)(i) (Operating Budgets).

(d)KYC.  The Administrative Agent and the Lenders have received all documentation and other information required by regulatory authorities under the applicable “know your customer” and Anti-Money Laundering Laws, including the Patriot Act, as and to the extent requested at least five (5) Business Days prior to the Closing Date.

(e)Fees and Expenses.

(i)All documented fees and expenses (including attorney’s fees and disbursements) required to be paid to the Agents and the Lenders pursuant to the Loan Documents on or before the Closing Date shall have been paid or shall be paid contemporaneously with the borrowing of the Loans.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(ii)All other costs and expenses required to be paid pursuant to Section 12.03 (Expenses; Etc) for which evidence has been presented at least three (3) Business Days prior to the Closing Date shall have been paid in full by the Borrower on or before the Closing Date.

(iii)The payment of all fees, costs and expenses to be paid on the Closing Date will be reflected in the Closing Date Funds Flow Memorandum and funding instructions given by the Borrower to the Administrative Agent and the Depositary Agent prior to the Closing Date.

(f)Collateral Accounts.  The Lenders shall have received satisfactory evidence that the Borrower and the applicable Guarantors have established the Collateral Accounts and the Borrower has deposited, or shall deposit contemporaneously with the borrowing of the Loans, (i) the Debt Service Reserve Required Amount shall have been established, through funding cash into the Debt Service Reserve Account pursuant to the Closing Date Funds Flow Memorandum, (ii) the Supplemental Reserve Required Amount into the Supplemental Reserve Account and (iii) the Inverter Replacement Reserve Required Amount into the Inverter Replacement Reserve Account, in each case in accordance with the Depositary Agreement.  The funding of the Debt Service Reserve Account, the Supplemental Reserve Account and the Inverter Replacement Reserve Account will be reflected in the Closing Date Funds Flow Memorandum and funding instructions given by the Borrower to the Administrative Agent and the Depositary Agent prior to the Closing Date.

(g)Technical Report.  The Administrative Agent shall have received technical report prepared by the Independent Engineer.

(h)Insurance.  The Administrative Agent shall have received (i) an insurance report from the Insurance Consultant, including an opinion as to the adequacy of the insurance maintained by the Borrower and (ii) an insurance certificate from the Borrower’s insurance broker identifying the underwriters, types of insurance, applicable insurance limits and policy terms consistent with such insurance report and evidence, including customary insurance certificates, that all insurance required to be obtained and maintained pursuant to the Loan Documents has been obtained and all premiums thereon have been paid in full.

(i)Reliance on Consultant Reports.  The Administrative Agent and the Lenders shall have received customary reliance letters, duly executed by the Independent Engineer, the Model Auditor and the Insurance Consultant allowing the Administrative Agent and the Lenders to rely on or use the underlying reports prepared by such consultants, or such reports shall be addressed to the Administrative Agent and the Lenders.

(j)Representations and Warranties.  The representations and warranties of the Relevant Parties contained in ARTICLE VII (Representations and Warranties) or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(k)No Action by Governmental Authority.  No action or proceeding has been instituted or threatened in writing by any Governmental Authority against any Relevant Party that seeks to impair, restrain prohibit or invalidate the transactions contemplated by this Agreement and the other Loan Documents or regarding the effectiveness or validity of any required Permits.

(l)No Default or Event of Default.  No Default or Event of Default shall exist, or would result from the borrowing of the Loans or from the application of the proceeds thereof.

(m)Discharge of Aggregation Facility Indebtedness.  Prior to or, pursuant to a closing protocol acceptable to the Lenders, contemporaneously with the occurrence of the Closing Date, the Relevant Parties shall have delivered to the Lenders evidence to their satisfaction that the Indebtedness of the Relevant Parties under the Aggregation Facility has been discharged and all documents or instruments necessary to release all Liens on the Collateral securing, and any guarantee of the Relevant Parties in respect of, the Indebtedness under the Aggregation Facility on the Closing Date (including receipt of duly executed payoff letters, UCC-3 termination statements and the termination of any consent agreements).

(n)[Reserved].

(o)Closing Date Assignments.  Prior to or, pursuant to a closing protocol acceptable to the Lenders, contemporaneously with the occurrence of the Closing Date:

(i)all conditions to the consummation of the Closing Date Assignments set forth in the Closing Date Assignment Agreements shall have been satisfied or the fulfillment of any such conditions shall have been waived with the consent of the Lenders such that the Closing Date Assignments shall become effective in accordance with the terms of the Closing Date Assignment Agreements;

(ii)the Closing Date Assignment Agreements shall be in full force and effect and no provision thereof shall have been modified or waived, in each case without the consent of the Lenders.

(p)SREC Transactions.  Each of the SREC Financing Master PSA, SREC Aggregator Master PSA and the Fund SREC Transfer Agreements shall have been duly executed in form and substance satisfactory to the Lenders and UCC-1s shall have been filed (i) in favor of the Collateral Agent (as assignee of SREC Guarantor) in respect of the assignment of receivables under the SREC Financing Master PSA, (ii) in favor of SREC Guarantor in respect of the assignment of receivables under the SREC Aggregator Master PSA and (iii) in favor of the Collateral Agent (as assignee of SREC Guarantor) in respect of the SRECs sold by the Lessor under its applicable Fund SREC Transfer Agreement.

(q)Ratings.  Each Lender shall have received reasonably satisfactory evidence that the Loans are rated at least BBB- or equivalent from KBRA.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(r)ITC Insurance Policy.  Each Lender shall have received satisfactory evidence that (i) Fund XVIII Guarantor is insured by the ITC Insurance Policy, which is fully underwritten by Qualified Insurers, with Borrower as loss payee and (ii) the non-refundable premium required to be paid to the ITC Underwriting Representative under the ITC Insurance Policy shall have been paid or shall be paid contemporaneously with the borrowing of the Loans.

Article VII. Representations and Warranties.

As of the Closing Date, the Borrower represents and warrants to the Lenders and the Administrative Agent that:

Section 7.01Organization, Powers, Capitalization, Good Standing, Business.

(a)Organization and Powers.  The Borrower is duly organized, validly existing and in good standing under the Laws of its state of formation.  The Borrower has all requisite power and authority to own and operate its Properties, to carry on its businesses as now conducted and proposed to be conducted.  The Borrower has all requisite power and authority to enter into each Transaction Document to which it is a party and to perform the terms thereof.

(b)Qualification.  The Borrower is duly qualified and in good standing in each state or territory where necessary to carry on its present businesses and operations, except in jurisdictions in which the failure to be qualified and in good standing could not reasonably be expected, in the aggregate across all such jurisdictions, to have a Material Adverse Effect.

(c)Business.  The Relevant Parties have not conducted any business other than acquisition, construction, installation, lease, ownership of, and sale of energy from, and the operation, management, maintenance and financing of, the Projects and activities related or incident thereto (including those contemplated by the Transaction Documents).  

Section 7.02Authorization of Borrowing, etc.

(a)Authority.  The Borrower has the power and authority to incur, and the Loan Parties have the power and authority to guarantee, the Indebtedness represented by the Loans and the Loan Documents.  The execution, delivery and performance by each Loan Party and each SREC Seller Party of the Loan Documents to which it is a party and the consummation of the transactions contemplated thereby have been duly authorized by all necessary limited liability company or other action, as the case may be, on behalf of such Loan Party or SREC Seller Party.

(b)No Conflict.  The execution, delivery and performance by each Relevant Party of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby do not and will not:  (i) conflict with or result in a violation or breach of the terms of (A) its certificate of formation, limited liability company agreement, operating agreement or other organizational documents, as the case may be; (B) any provision of material Law applicable to it or (C) any order, judgment or decree of any Governmental Authority binding on it or any of its material Properties; (ii) result in a material breach of or

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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constitute (with due notice or lapse of time or both) a material default under the Transaction Documents or any other material contractual obligation binding upon a Relevant Party or its material Properties; or (iii) result in or require the creation or imposition of any Lien upon its Assets (other than the Liens created under the Collateral Documents).

(c)Consents.  The execution and delivery by each Relevant Party of the Transaction Documents to which it is a party, and the consummation of the transactions contemplated thereby, do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority or any other Person (including any Tax Equity Member and their Affiliates or any lender to any Loan Party or its Affiliates) which has not been obtained or made, and each such consent or approval is in full force and effect, in each case, other than consents, approvals, registrations, notices or other action which, if not obtained or made, could not reasonably be expected, in the aggregate across all such consents, approvals, registrations, notices or other action not so obtained or made, to have a Material Adverse Effect.

(d)Binding Obligations.  Each of the Transaction Documents to which a Loan Party or SREC Seller Party is a party has been duly executed and delivered by such Loan Party or SREC Seller Party thereto and is the legally valid and binding obligation of such Loan Party or SREC Seller Party, enforceable against it, in accordance with its respective terms, subject to bankruptcy, insolvency, moratorium, reorganization and other similar Laws affecting creditor’s rights.

Section 7.03Title to Membership Interests.

(a)Upon the consummation of the Closing Date Assignments on the Closing Date, the Borrower is the sole member of each of the Guarantors, and has good and valid legal and beneficial title to all of the Guarantor Manager Membership Interests, free and clear of all Liens other than Permitted Liens.  All of such issued and outstanding Guarantor Manager Membership Interests have been duly authorized and validly issued and, upon the consummation of the Closing Date Assignments on the Closing Date, are owned of record and beneficially by the Borrower and were not issued in violation of any preemptive right.  There are no voting agreements or other similar agreements with respect to the Guarantor Manager Membership Interests.

(b)Each Guarantor has good and valid legal and beneficial title to all of the Fund Manager Membership Interests in the applicable Tax Equity Fund held by it as identified on Schedule 7.03(g) (Subsidiaries), free and clear of all Liens other than Permitted Liens.  All of the issued and outstanding Fund Manager Membership Interests have been duly authorized and validly issued and are owned of record and beneficially by the Guarantor identified on Schedule 7.03(g) (Subsidiaries) and were not issued in violation of any preemptive right.  There are no voting agreements or other similar agreements with respect to the Fund Manager Membership Interests.

(c)Other than the independent member of the Borrower, the Pledgor is the sole member of the Borrower and has good and valid legal and beneficial title to all of the

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Borrower Membership Interests, free and clear of all Liens other than Permitted Liens.  All of the issued and outstanding Borrower Membership Interests have been duly authorized and validly issued and are owned of record and beneficially by Pledgor and were not issued in violation of any preemptive right.  There are no voting agreements or other similar agreements with respect to the Borrower Membership Interests.

(d)Other than pursuant to the Closing Date Assignment Agreements, there are no outstanding options, warrants or rights for conversion into or acquisition, purchase or transfer of any of the Membership Interests. There are no outstanding options, warrants or rights for conversion into or acquisition, purchase or transfer of any of the membership interests in a Tax Equity Fund, except for (i) the call rights of the Partnership Flip Manager Guarantors under the Tax Equity Documents, with respect to the membership interests of the Tax Equity Members in the Partnership Flip Funds, (ii) the withdrawal right of the applicable Tax Equity Member from the applicable Partnership Flip Fund under the Limited Liability Company Agreement of Fund XI or the Limited Liability Company Agreement of Fund XIII, (iii) contingent buy out rights of any Guarantor or Tax Equity Member to acquire membership interests in any Fund and (iv) any provisions providing for the conversion of a Fund Manager Membership Interest into a non-managing or “economic interest” (in accordance with the express terms of such Fund’s Limited Liability Company Agreement).  There are no agreements or arrangements for the issuance by any Loan Party of additional equity interests.

(e)Prior to the consummation of the Closing Date Assignments on the Closing Date, Schedule 7.03(e) (Organizational Structure prior to the Closing Date) accurately sets forth the ownership structure of the Relevant Parties underneath the Sponsor.

(f)After the consummation of the Closing Date Assignments on the Closing Date, Schedule 7.03(f) (Organizational Structure following the Closing Date) accurately sets forth the ownership structure of the Relevant Parties underneath the Sponsor.  The Borrower has no subsidiaries other than as shown on Schedule 7.03(f) (Organizational Structure following the Closing Date).

(g)Schedule 7.03(g) (Subsidiaries) sets forth the name and jurisdiction of incorporation or formation of each Loan Party and the Tax Equity Funds and the percentage of each class of Capital Stock owned by any Loan Party.

Section 7.04Governmental Authorization; Compliance with Laws.

(a)No Permit, approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, any Loan Party or SREC Seller Party of this Agreement or any other Transaction Document, (ii) the grant by any Loan Party or SREC Seller Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents or (iv) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to this Agreement or the Collateral Documents, except for the authorizations, approvals, actions,

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[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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notices and filings listed on Schedule 7.04 (Governmental Authorization; Compliance with Laws) or with respect to which the Borrower could not reasonably be expected to have Knowledge because they are particular to the identity or character of the Administrative Agent, all of which have been duly obtained, taken, given or made and are in full force and effect as of the Closing Date.  All material Permits necessary or required in connection with the development, construction and operation of the Eligible Projects (including permission to operate from the applicable local utility) have been duly obtained, taken, given or made and, if necessary or required to be in effect as of the Closing Date, are in full force and effect as of the Closing Date.

(b)Each of the Loan Parties is, and the business and operations of each such Person and its development, construction and operation of the Projects are, and always have been, conducted in all respects in material compliance with all applicable Laws (including, without limitation, laws with respect to consumer leasing and protection but not including Environmental Laws which are addressed under Section 7.16 (Environmental Matters), or Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions, which are addressed under Section 7.20 (Sanctions; Anti-Corruption; Anti-Money Laundering)), and none of any Loan Party has received written notice from any Governmental Authority of an actual or potential violation of any such Laws, except as does not constitute or could not reasonably be expected, in the aggregate across all such written notices of actual or potential violations, to constitute a Material Adverse Effect.

(c)Each Project in the Project Pool that makes any sale of electricity at wholesale is a qualifying small power production facility in accordance with 18 C.F.R. Part 292 and is exempt from the Public Utility Holding Company Act of 2005 and from certain state laws and regulations as set forth in 18 C.F.R. Section 292.602(c), and is exempt from all sections of the Federal Power Act and its implementing regulations except for those set forth in 18 C.F.R. Sections 292.601(2) through (5).

(d)No Relevant Party is subject to regulation by any state public utility regulatory authority in any Project State with respect to its rates or finances.

Section 7.05Solvency.  The Borrower has not entered into any Loan Document with the actual intent to hinder, delay, or defraud any creditor.  After giving effect to the issuance of the Loans (and the use of proceeds thereof), the fair saleable value of the Loan Parties’ Assets, taken as a whole, exceeds and will, immediately following the making of any Loans, exceed the Loan Parties’ total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent obligations.  The fair saleable value of the Loan Parties’ Assets, taken as a whole, is and will, immediately following the making of any Loans (and the use of proceeds thereof), be greater than the Loan Parties’ probable liabilities, including the maximum amount of its contingent obligations on its debts as such debts become absolute and matured.  The Loan Parties’ Assets, taken as a whole, do not and, immediately following the making of any Loans (and the use of proceeds thereof) will not, constitute unreasonably small capital to carry out the business of the Loan Parties as conducted or as proposed to be conducted.  The Borrower does not intend for it or any Relevant Party to, and does not believe that any such Person will, incur Indebtedness and liabilities beyond its ability to pay such Indebtedness and liabilities as they

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[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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mature (taking into account the timing and amounts of cash to be received by the Borrower and the amounts to be payable on or in respect of obligations of the Borrower).

Section 7.06Use of Proceeds and Margin Security; Governmental Regulation.

(a)No portion of the proceeds from the making of the Loans will be used by the Borrower, a Loan Party or their respective Affiliates in any manner that might cause the borrowing or the application of such proceeds to violate Regulation U or Regulation X or any other regulation of the Board.  Nor is Borrower engaged principally, or as one of its principal activities in the business of extending credit for the purpose of purchasing or carrying margin stock (as defined or used in Regulation  U or Regulation X).

(b)No Relevant Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act.

(c)No Relevant Party is subject to regulation under any federal or state statute or regulation that limits their ability to incur indebtedness for borrowed money.

Section 7.07Defaults; No Material Adverse Effect.

(a)No Default or Event of Default has occurred and is continuing.

(b)No event, condition or circumstance has occurred which has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.

(c)No Provider Event, Manager Event or Lessor Default has occurred and is continuing.

Section 7.08Financial Statements; Books and Records.

(a)Except as set forth on Schedule 7.08 (Financial Statement Exceptions), all Financial Statements that have been furnished by or on behalf of any Relevant Party or any of their Affiliates to the Administrative Agent in connection with the Loan Documents have been prepared in accordance with GAAP, consistently applied and present fairly in all material respects the financial condition of the Persons covered thereby as of the respective dates thereof, subject, in the case of any such unaudited Financial Statements, to changes resulting from audit and normal year-end adjustments, including the absence of footnotes and subject to validation of individual capital accounts in calculating net loss attributable to noncontrolling interests in conformity with GAAP.

(b)All books, accounts and files of each Loan Party are accurate and complete in all material respects, and Borrower has access to all such books and records and the authority to grant access to such books and records to the Secured Parties.

Section 7.09Indebtedness.  The Relevant Parties have no outstanding Indebtedness other than (i) the Obligations and other Permitted Indebtedness and (ii) solely prior to the consummation of the Closing Date Assignments on the Closing Date, the Indebtedness

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[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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under the Aggregation Facility.  The Obligations under the Loan Documents constitute Indebtedness of the Borrower and the Guarantors secured by a first ranking priority security interest in the Collateral, subject to Permitted Liens.  As of the Closing Date, no other Indebtedness of the Borrower or the Guarantors ranks senior in priority to the Obligations.

Section 7.10Litigation; Adverse Facts.  There are no judgments outstanding against any Relevant Party, or affecting any of the Projects or any other Assets or Property of any Relevant Party, nor to the Relevant Parties’ Knowledge is there any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration now pending or threatened against any Relevant Party, respectively, or any of the Projects that relates to the legality, validity or enforceability of any of the Transaction Documents, the ability of a Secured Party to exercise any of its rights in respect of the Collateral or the Collateral Documents or, other than as set forth on Schedule 7.10 (Litigation; Adverse Facts), that could reasonably be expected, in the aggregate across all such actions, charges, claims, demands, suits, proceedings, petitions, governmental investigations and arbitrations, to result in a Material Adverse Effect.

Section 7.11Taxes and Tax Status.  All U.S. federal, state and local tax returns, information statements and reports, and all other material tax returns, information statements or reports, in each case, related to Taxes, of the Relevant Parties required to be filed have been timely filed (or any such Person has timely filed for a valid extension and such extension has not expired), and all material Taxes (including any payments in lieu of Taxes) upon such Persons and upon their Properties, Assets, income, profits, businesses and franchises which are due and payable have been timely paid except to the extent the same are being contested in accordance with Section 8.11 (Payment of Claims).  All such returns, information statements and reports are true and accurate in all material respects.  There are no Liens for Taxes (other than Liens for Taxes not yet due and payable) on any Assets of any Relevant Party, no unresolved written claim or proposed adjustment has been asserted with respect to any Taxes of any Relevant Party, no waiver or agreement by any Relevant Party is in force for the extension of time for the assessment or payment of any Tax or regarding the application the statute of limitations for any Taxes or tax returns, and no request for any such extension or waiver is currently pending.  There is no pending or, to the Knowledge of the Borrower, threatened audit or investigation by any Governmental Authority of any Relevant Party with respect to Taxes.  No Relevant Party is a party to or bound by any Tax sharing arrangement with any Person or any other agreement pursuant to which it is liable for the Taxes of another Person (including any Affiliate of a Relevant Party), other than the Tax Equity Documents, the Loan Documents and the other Portfolio Documents.  No Relevant Party has any liability for Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law) or as a transferee or successor.  No power of attorney currently in force has been granted with respect to Taxes of any Relevant Party.  No written claim has been made by any Governmental Authority and received by any Relevant Party in a jurisdiction where such Relevant Party does not file a tax return that it is or may be subject to taxation in that jurisdiction.  No Relevant Party has engaged in any “listed transaction” as defined in Treasury Regulation Section 1.6011-4 or made any disclosure under Treasury Regulation Section 1.6011-4.  With respect to each Project that is leased for U.S. federal income tax purposes to a Customer, to the Knowledge of the Borrower, the Customer is not a tax exempt entity within the meaning of Section 168(h)(2) of the Code, except as could not reasonably be expected to have a Material Adverse Effect, when

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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combined with other similar Projects.  All real property, personal property, sales and use taxes imposed upon any Project or the Energy produced by any Project are fully reimbursable by the applicable Customer or have been timely paid by the Manager, Provider or Seller on behalf of the applicable Relevant Party.  No private letter ruling from the IRS has been obtained or requested by any Relevant Party for any of the transactions contemplated hereunder or under any of the Tax Equity Documents.  Each Relevant Party is treated for U.S. federal income tax purposes either as disregarded as an entity separate from its owner (as described in U.S. Treasury Regulations Section 301.7701-2(c)(2)(i)) or as a partnership (and not a publicly traded partnership as defined in Section 7704(b) of the Code) and each such owner or partnership for this purpose is a U.S. Person and not a Tax Exempt Person.  No Relevant Party has elected to be treated as an association taxable as a corporation for federal income tax purposes.

Section 7.12Performance of Agreements.  None of the Loan Parties, SREC Seller Parties or Provider is in default in the performance, observance or fulfillment of the Loan Documents or the Management Agreement.  None of the Loan Parties, SREC Seller Parties or Provider are in material default in the performance, observance or fulfillment of the other Transaction Documents to which they are a party or any of the other obligations, covenants or conditions contained in any material contracts of any such Persons and, to the Knowledge of the Loan Parties, SREC Seller Parties or Provider, no condition exists under such Transaction Documents that, with the giving of notice or the lapse of time or both, would constitute such a material default, other than with respect to the Customer Agreements where such condition (itself or when coupled with other defaults or conditions under such agreements) could not reasonably be expected to have a Material Adverse Effect.

Section 7.13ERISA.

(a)None of the Loan Parties or SREC Seller Parties, or any of their respective ERISA Affiliates, maintains or contributes to, or has any obligation under, any Employee Benefit Plans or Multiemployer Plans. Without limiting the foregoing, the Relevant Parties do not have any employees or former employees and do not sponsor, maintain, participate in, contribute to or have any obligations under or liability in respect of any Plan.

(b)The execution and delivery of this Agreement and the making of the Loans hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.  The representation by the Borrower to each Lender in the first sentence of this Section 7.13(b) is made in reliance upon and subject to the accuracy of such Lender’s representation in Section 5.04 (Source of Funds Representations of the Lenders) as to the sources of the funds used to make the Loans.

Section 7.14Insurance.  Set forth on Schedule 7.14 (Insurance) is a description of all policies of insurance for the Relevant Parties, including those policies of the Sponsor for the benefit of the Relevant Parties which are required to be maintained pursuant to a Transaction Document, that are in effect as of the Closing Date.  Such insurance policies conform to the requirements of Section 8.12 (Maintenance of Insurance) and have been paid in full or are not in arrears.  No notice of cancellation has been received with respect to such policies and the

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[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Relevant Parties are in compliance in all material respects with all conditions contained in such policies.

Section 7.15Investments.  Except as set forth under Schedule 7.03(g) (Subsidiaries), the Loan Parties have no direct or indirect equity interest in any Person which is not also a Loan Party, including any stock, partnership interest or other equity securities of any other Person.

Section 7.16Environmental Matters.  Each Project is, and has been developed, constructed and operated, in material compliance with all applicable Environmental Laws and Permits; no notice of violation of such Environmental Laws or Permits has been issued by any Governmental Authority with respect to any Project which has not been resolved or which is reasonably expected, in the aggregate across all such notices of violation for all Projects, to have a Material Adverse Effect; there is no pending or, to the Borrower’s Knowledge, threatened action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration in respect of any Environmental Laws or Permits against any Relevant Party or with respect to any Project which could reasonably be expected, in the aggregate across all such actions, charges, claims, demands, suits, proceedings, petitions, governmental investigations and arbitrations, to have a Material Adverse Effect; there has been no Release of any Hazardous Material by a Relevant Party on, from or related to any Project that has resulted in or could reasonably be expected, in the aggregate across all such Releases, to result in a Material Adverse Effect; and no action has been taken by any Relevant Party that would cause any Project not to be in material compliance with all applicable Environmental Laws or Permits pertaining to Hazardous Materials. If any Project is located in the State of New York, the gross area of such Project is less than 4,000 square feet.

Section 7.17[Reserved].  

Section 7.18Representations Under Other Loan Documents.  Each of the Relevant Parties’ representations and warranties set forth in the other Loan Documents are true, correct and complete in all material respects when made.

Section 7.19Broker’s Fee.  Except as disclosed on Schedule 7.19 (Brokers), no broker’s fee or finder’s fee, commission or similar compensation will be payable by or pursuant to any contract or other obligation of any Loan Party or SREC Seller Party with respect to the making of the Loans or any of the other transactions contemplated by the Transaction Documents.

Section 7.20Foreign Assets Control Regulation.

(a)Each of the Loan Parties has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by it and its Subsidiaries, and their respective directors, officers, employees and agents, with applicable Anti-Corruption Laws, applicable Anti-Money Laundering Laws and applicable Sanctions.

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[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(b)No Loan Party or any of its Subsidiaries or any of their respective directors or officers or, to the Loan Party’s knowledge, any of their respective employees, Affiliates or agents:  (i) is a Sanctioned Person; (ii) has engaged in the past five (5) years or intends to engage in the future in any unlawful dealings with, involving or for the benefit of, any Sanctioned Person in violation of Sanctions; or (iii) will directly or indirectly use any part of any proceeds of the Loans or lend, contribute, or otherwise make available such proceeds (A) to fund or facilitate any unlawful activities or business of, with or involving any Sanctioned Person in violation of Sanctions or (B) in any other manner that would constitute or give rise to a violation of applicable Sanctions by any Loan Party, any of its Subsidiaries, the Administrative Agent or any Lender.

(c)No Loan Party or any of its Subsidiaries or any of their respective directors or officers or, to the Loan Party’s knowledge, any of their respective employees, Affiliates or agents has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity; any officer or employee of a public international organization; any person acting in an official capacity for or on behalf of any of the foregoing; or any political party, party official, or candidate for political office) to improperly influence an official action, secure an improper advantage or in any manner that would constitute or give rise to a violation of applicable Anti-Corruption Laws.

(d)No Loan Party or any of its Subsidiaries or any of their respective directors or officers or, to the Loan Party’s knowledge, any of their respective employees, Affiliates or agents is or has been, in the past five (5) years, subject to any action, proceeding, litigation, claim or investigation with regard to any actual or alleged violation of applicable Sanctions, applicable Anti-Corruption Laws or applicable Anti-Money Laundering Laws.

Section 7.21Property Rights.  Each Fund owns (or, in the case of the Lessee, leases pursuant to the Master Lease Agreement) each photovoltaic system included in a Project acquired by it and owns (or, in the case of the Lessee, leases pursuant to the Master Lease Agreement), or, in the case of access rights to Customer Property, has a contractual right to use, all equipment and facilities necessary for the operation of each Project.  All equipment and facilities included in the Projects are (or are reasonably expected to be when acquired or contracted for) in good repair and operating condition subject to ordinary wear and tear and casualty and are suitable for the purposes for which they are employed, and, to the Knowledge of Borrower, there was and is no material defect, hazard or dangerous condition existing with respect to any such equipment or facilities except in respect of any material defect, hazard or dangerous condition for which the applicable Fund Provider is taking appropriate action in accordance with Prudent Industry Practices and that could not reasonably be expected, in the aggregate across all such material defects, hazards and dangerous conditions for all Projects, to have a Material Adverse Effect or a material adverse effect on the ability of the Borrower to perform under the Loan Documents at or above the projections in the Base Case Model.  Each Fund has the material requisite rights and licenses under the Customer Agreements to which it is party to access, install, operate, maintain, repair, improve and remove its respective Eligible Projects.  No Relevant Party is the title owner of any real property.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Section 7.22Portfolio Documents and Eligible Projects.

(a)No Relevant Party is party to any agreement or contract other than (i) the Tax Equity Documents to which it is a party listed on Schedule 7.22(a) (Portfolio Documents), (ii) the other Transaction Documents to which it is a party, (iii) in the case of SREC Guarantor, the Master SREC Purchase and Sale Agreements and (iv) any contract or agreement incidental or necessary to the operation of its business that does not allocate material risk to any Relevant Party and have a term of less than one year or that has a value over its term not exceeding $100,000.

(b)Each Customer Agreement to which a Fund is a party is an Eligible Customer Agreement and does not warrant or guarantee any cost savings.

(c)Each Customer Agreement and the origination thereof and the installation of the related Eligible Project, in each case, was in compliance in all material respects with applicable Law (including without limitation, all consumer leasing and protection Law) at the time such Customer Agreement was originated and executed and such Eligible Project was installed.

(d)The Customer under each Customer Agreement in respect of an Eligible Project satisfied the Sponsor’s credit underwriting policy as and to the extent in effect at the time of origination.

(e)Except as set forth on Schedule 7.22(e) (Portfolio Document Exceptions), all Portfolio Documents when provided to Administrative Agent (in each case, including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters) are true, correct and complete copies of such Portfolio Documents, and as of the Closing Date or any other date when additional Portfolio Documents are provided to the Administrative Agent hereunder, each Portfolio Document (i) has been duly executed and delivered by the Sponsor, each SREC Seller Party and each Relevant Party party thereto (as applicable) and, to the Knowledge of Borrower and the Subsidiaries, the other parties thereto, (ii) is in full force and effect and is legal, valid and binding on, and enforceable against the Sponsor and each Relevant Party party thereto (as applicable) and, to the Knowledge of Borrower and the Subsidiaries, each other party thereto as of such date, (iii) neither the Sponsor, any SREC Seller Party nor any Relevant Party or, to the Knowledge of Borrower and each Subsidiary, no other party to such document is or, but for the passage of time or giving of notice or both, would be in breach of any material obligation thereunder, except solely with respect to the Project Documents, where such breach (itself or when coupled with other breaches under such Project Documents) could not reasonably be expected to have a Material Adverse Effect, (iv) has no event of force majeure existing thereunder except solely with respect to the Project Documents, where such event of force majeure (itself or when coupled with other events of force majeure under such Project Documents) could not reasonably be expected to have a Material Adverse Effect and (v) all conditions precedent to the effectiveness of such documents have been satisfied or waived in writing.

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[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(f)Borrower maintains in its or the applicable Relevant Party’s books and records a copy of all material documentation ancillary to the Customer Agreements, including, with respect to each completed Eligible Project:  (i) a copy of or access to all of such Eligible Project’s manufacturer, installer or other warranties; (ii) a copy of the Eligible Project’s completed inspection certificate issued by the applicable Governmental Authority; (iii) evidence of permission to operate from the applicable local utility; and (iv) evidence that any applicable installer of such Eligible Project has been paid in full.

(g)The insurance described in Section 8.12 (Maintenance of Insurance) satisfies all insurance requirements set forth in the Portfolio Documents.

(h)Except as set forth on Schedule A, each Eligible Project has been Placed in Service.

(i)No Eligible Project been turned off due to a Customer delinquency.

(j)The Project Information for each Eligible Project is true and correct in all material respects and does not omit any necessary information that makes such entry misleading.

(k)To the Knowledge of Borrower, no condemnation is pending or threatened in writing with respect to any Eligible Project, or any portion thereof material to the ownership or operation of the Eligible Project, and no unrepaired, material casualty exists with respect to any Eligible Project or any portion thereof material to the ownership or operation of any Eligible Project or the sale of electricity therefrom.

(l)The Relevant Parties have taken all action in accordance with Prudent Industry Practices to ensure that the manufacturer warranties relating to an Eligible Project are in full force and effect and, to the Knowledge of the Borrower, can be enforced by the applicable Fund and, to the Knowledge of the Borrower and except to the extent the applicable manufacturer is no longer honoring its warranties generally, all manufacturer warranties are in full force and effect.

(m)A Fund Provider is obligated to provide certain maintenance and administrative services associated with such Systems in accordance with the applicable Services Agreements for such Fund and the standards set forth in the Portfolio Documents.

(n)Each Eligible Project and the related Customer Agreement have been assigned to and are owned by the Lessor (subject to the leasehold interest of the Lessee under the  Master Lease Agreement) or Partnership Flip Fund, to which a Guarantor has the Fund Manager Membership Interests, free and clear of all liens and encumbrances, except for Permitted Liens.

(o)In respect of each Eligible Project not located in California, a fixture filing has been or will be recorded against each Customer and the applicable Property in respect of such Eligible Project in the real property records where the Eligible Project is located; provided, however, that (i) certain of such filings may be released from time-to-time in order to assist the applicable Customer in a pending refinancing of such Customer’s mortgage loan or sale of home and (ii) such filings may not have been filed or maintained in a manner that would provide

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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priority under applicable law over an encumbrance or owner of the real property subject to the filing.

(p)In respect of each Eligible Project in California with respect to which a Customer Agreement has been entered into, a filing in respect of such Eligible Project (pursuant to and in compliance with Cal. Pub. Util.  Code §§ 2868-2869) was made in the applicable real property records where the Eligible Project is located where the Eligible Project is located; provided, however, that certain of such filings may be released from time-to-time in order to assist the applicable Customer in a pending refinancing of such Customer’s mortgage loan or sale of home.

(q)Each Eligible Project is located in a Project State listed on Schedule 7.22(q) (Project States).

(r)With respect to each Fund, each of the Fund Representations is true, complete and correct.

(s)The Net Cash Flow included under the Base Case Model from the Project Pool does not include any projections of Operating Revenues other than Eligible Revenues, includes projections of Operating Expenses from all Eligible Projects in the Project Pool and takes into account the impact on projections of Operating Revenues and Operating Expenses from each waiver to eligibility requirements, portfolio criteria or otherwise as provided by a Tax Equity Member. Taking into account all Eligible Projects owned by the applicable Fund:  (i) each of the fund constraints and limitations set forth in the related Master Purchase Agreement has been satisfied, (ii) any minimum systems in service requirement set forth in such Master Purchase Agreement shall have been achieved, and (iii) each Eligible Project met the sale conditions and eligibility representations at the time of sale pursuant to such Master Purchase Agreement or such requirements referenced in clauses (i), (ii) and/or (iii) were waived or amended and a copy of any such waiver or amendment has been provided to the Administrative Agent.

(t)All standing orders and transfer instructions, and recordations in any applicable environmental registry and information system that tracks the environmental and fuel attributes of generation, to the extent required on or prior to the date hereof by the Master SREC Purchase and Sale Agreements, Fund SREC Transfer Agreements and Eligible SREC Contracts in respect of the Eligible Projects and their generation of SRECs, have been issued or made.

Section 7.23Security Interests.

(a)The Collateral Documents create, as security for the Obligations, valid, enforceable, and, upon the filing of documents and instruments in the proper places and the taking of other required actions (including, without limitation, possession), which have been filed or taken on or prior to the Closing Date, perfected first-priority Liens in the Collateral, in favor of the Collateral Agent, for the benefit of the Secured Parties, subject to no Liens other than Permitted Liens.  All consents and approvals necessary or desirable to create and perfect such Liens have been obtained.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(b)The descriptions of the Collateral set forth in the Collateral Documents are true, complete, and correct in all material respects and are adequate for the purpose of creating, attaching, and perfecting the Liens in the Collateral granted or purported to be granted in favor of the Collateral Agent for the benefit of the Secured Parties.

(c)All filings, registrations, recordings, notices, and other actions that are necessary or required (including delivery to the Collateral Agent of the certificates evidencing the Membership Interests or giving the Collateral Agent control or possession of the Collateral) to perfect the Collateral Agent’s Lien on the Collateral for the benefit of the Secured Parties have been made or taken or will be made or taken on the date of this representation.

Section 7.24Intellectual Property

.  Each Relevant Party owns or holds a valid and enforceable agreement, license, permit, certificate, franchise or other authorization or right to use the technology and intellectual property rights necessary to own, lease, operate, maintain and repair the Projects, and no actions by any Relevant Party that have been performed or are expected to be performed under the Portfolio Documents infringe upon or misappropriate in any material respect the intellectual property rights of any other Person.

Section 7.25Full Disclosure.

(a)Other than the Memorandum, all written information contained in any officer’s certificate, Loan Document (including all schedules, exhibits, annexes and other attachments), documents, reports or other written information delivered in connection with the transactions hereunder pertaining to the Borrower, the Guarantors, the Funds, the SREC Seller Parties, the Pledgor, the Portfolio Documents, and the Projects (other than any assumptions, projections or forward-looking statements), together with all written updates of such information from time to time (collectively, the “Information”), that have been furnished by or on behalf of the Borrower to any Secured Party or its advisors or consultants are, taken as a whole, true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading in light of the circumstances in which they were made. The Memorandum, taken as a whole, is true and correct in all material respects, does not contain any material misstatements and presents fairly in all material respects the financial position of the Borrower, the Guarantors and the Funds.

(b)The Base Case Model (i) has been prepared in good faith based upon assumptions believed by the Borrower to be reasonable as and when the Base Case Model was prepared, (ii) is, other than with respect to reasonable variances to assumptions, generally consistent with each financial model provided to the Tax Equity Members as and when the Base Case Model was prepared and (iii) does not include any Operating Revenues for Loan sizing purposes other than Eligible Revenues and includes a good faith estimate of all Operating Expenses in respect of all Projects owned by the Funds, it being recognized by the Administrative Agent and the Lenders that such information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such information may differ from the projected results set forth therein by a material amount.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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Section 7.26No Other Bank Accounts.  No Relevant Party maintains any bank accounts other than (i) the Collateral Accounts maintained by the Borrower and the Guarantors, (ii) the Unpledged SREC Account maintained by SREC Guarantor and (iii) the Fund Accounts.

Article VIII. Affirmative Covenants.

The Borrower covenants and agrees that until the Debt Termination Date, it shall perform and comply with all covenants in this ARTICLE VIII applicable to such Person.

Section 8.01Financial Statements and Other Reports.

(a)Financial Statements and Operating Reports.

(i)Annual Reporting.  Within one hundred fifty (150) days after the end of each fiscal year of the Borrower, the Borrower shall furnish, or cause to be furnished, to the Administrative Agent (on a consolidated basis for the Sponsor and its subsidiaries) copies of the Financial Statements of the Sponsor, Borrower and each Fund; provided, that, the Borrower shall not be required to furnish Financial Statements of the Borrower for the fiscal year ended December 31, 2016.  All such Financial Statements shall be prepared in accordance with GAAP consistently applied and shall be audited by an Independent certified public accounting firm of national standing, and shall be accompanied by an unqualified report of such accountants on such Financial Statements which states that such Financial Statements present fairly in all material respects the financial position of the applicable Person and its consolidated subsidiaries for the period covered by such Financial Statements.  All such Financial Statements shall also be accompanied by a certification executed by the applicable Person’s chief executive officer or chief financial officer (or other officer with similar duties) to the effect set forth in Section 8.01(a)(vi) (Certifications of Financial Statements and Other Documents).

(ii)Quarterly Reporting.  Within sixty (60) days after the end of each of the first three (3) fiscal quarters in each fiscal year of the applicable Person, commencing with the fiscal quarter ended March 31, 2017, the Borrower shall provide to the Administrative Agent (on a consolidated basis for the applicable Person and its subsidiaries) copies of the unaudited Financial Statements of each of the Borrower and each Fund for each such quarter, together with a certification executed by each respective chief executive officer or chief financial officer (or other officer with similar duties) to the effect set forth in Section 8.01(a)(vi) (Certifications of Financial Statements and Other Documents).

(iii)Portfolio Reporting.  The Borrower shall cause the Manager to provide to the Administrative Agent a quarterly Manager’s report, no later than sixty (60) days after the end of the fiscal quarter of the Borrower in the form attached as Exhibit M (Form of Manager’s Report), which shall include reporting on an aggregate basis across all Funds and Projects of actual production data against budgeted production data.  The Borrower shall cause the Manager to include in each such Manager’s report (A) the zip code for each Eligible Project and (B) the estimated first-year energy

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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generation data for each Eligible Project for the year commencing on the date such Eligible Project was granted permission to operate.  The Borrower shall cause the Manager and its employees and officers to make themselves available at the request of the Administrative Agent, a Lender or the Independent Engineer to discuss any information disclosed in a Manager’s report, including with respect to (a) Collections, (b) Operating Expenses, (c) the deployment schedule, (d) the fair market value of the class B equity interests in each Fund and (e) portfolio production performance.

(iv)Provider Reporting.  The Borrower shall cause the Fund Provider to provide to the Administrative Agent each monthly, quarterly and annual report required pursuant to Services Agreements at such time and in such manner as provided therein.  The Borrower shall cause each Fund Provider and its employees and officers to make themselves available at the request of the Administrative Agent or a Lender to discuss any information disclosed in such reports, including with respect to inverter failure rates.

(v)Scheduled Payment Date Report.  The Borrower shall provide to the Administrative Agent, the Collateral Agent, and the Depositary Agent a Scheduled Payment Date Report in accordance with Section 4.01(a) (Scheduled Payment Date Report).  The calculations of the Historical Debt Service Coverage Ratio and the Projected Debt Service Coverage Ratio and other information provided in respect of the Scheduled Payment Date Report hereunder shall be used in determining deposits to and releases from the Collections Account or the Distribution Suspense Account, as applicable, for the purposes of making any Restricted Payments by the Borrower.  If the Borrower fails to produce the information and calculations relating to the Historical Debt Service Coverage Ratio or the Projected Debt Service Coverage Ratio required to be produced pursuant to this Agreement, then, until such time as such information and calculations are provided, no funds shall be released for the purposes of making any Restricted Payments by the Borrower (but such failure shall not otherwise constitute a Default or an Event of Default hereunder).

(vi)Certifications of Financial Statements and Other Documents.  Together with the Financial Statements provided to the Administrative Agent pursuant to Section 8.01(a)(i) (Annual Reporting) and Section 8.01(a)(ii) (Quarterly Reporting), the Borrower shall also furnish to the Administrative Agent certifications upon which the Administrative Agent may conclusively rely in the form of Exhibit J (Form of Financial Statement Certificate), executed by the respective chief executive officer, chief financial officer or controller (or other officer with similar duties) of the Relevant Party (as applicable) certifying that such Financial Statements fairly present the financial condition and results of operations of the Relevant Party (as applicable) on a consolidated basis for the period(s) covered thereby in accordance with GAAP (subject, in the case of any such unaudited Financial Statements, to changes resulting from audit and normal year-end adjustments, including the absence of footnotes and subject to validation of individual Relevant Party capital accounts in calculating net loss attributable to noncontrolling interests in conformity with GAAP).

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(vii)SREC Seller Party Reporting.  The Borrower shall cause SREC Guarantor to provide to the Administrative Agent each quarterly report and all financial statements and other reports delivered to SREC Guarantor by the SREC Seller Parties pursuant to the Master SREC Purchase and Sale Agreements at such time and in such manner as provided therein.

(b)Material Notices.  The Borrower shall promptly, but in no event later than three (3) Business Days after the earlier of its or any Subsidiary’s receipt or Knowledge thereof, deliver, or cause to be delivered, to the Administrative Agent:

(i)copies of any and all notices of a default, breach or termination by any party under (A) any Transaction Document (other than a Project Document) or (B) any Project Document, which default, breach or termination under any Project Document (itself or when coupled with other breaches under any Project Document) could reasonably be expected to have a Material Adverse Effect;

(ii)notice of the occurrence of any event or circumstance that has, or could reasonably be expected to have, a Material Adverse Effect;

(iii)notice of any (A) fact, circumstance, condition or occurrence at, on, or arising from, any Project that results or could reasonably be expected to result in noncompliance with or a liability or material obligation under any Environmental Law that could reasonably be expected, in the aggregate across all such facts, circumstances, conditions and occurrences for all Projects, to have a Material Adverse Effect, (B) Release of Hazardous Materials on, from or related to any Project that has resulted in or could reasonably be expected to result in personal injury or material Property damage or in any material liability or material obligation for any Relevant Party, or (C) pending or, to the Borrower’s Knowledge, threatened action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration in respect of any Environmental Laws against it or arising in connection with occupying or conducting operations on or at any Project therefor which could reasonably be expected, in the aggregate across all such actions, charges, claims, demands, suits, proceedings, petitions, governmental investigations and arbitrations, to have a Material Adverse Effect;

(iv)copies of all material notices, documents or reports received or sent by the Borrower, the Sponsor or any other Relevant Party pursuant to any Tax Equity Document, which shall include (without limitation) any material capital contribution notice and notices, documents or reports in relation to (A) any call option, buy-out right, withdrawal right or put option, (B) the achievement of any flip or cash reversion dates under a Limited Liability Company Agreement, (C) true-up requirements (including, without limitation, any true-up report), (D) the transfer of membership interests, (E) material claims against the Sponsor or any Relevant Party under any Sponsor Guaranty, (F) the removal or pending removal of any Guarantor as a managing member of any Fund or any Lessor Default or Lessee Default, (G) any updates to financial models prepared by or in respect of a Fund, (H) the end of or any extension to the Lease Term, (I) the material adjustment to any ordinary distribution percentages

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(including curative or compensatory adjustments in favor of the Tax Equity Member) and (J) dispute resolution or independent review under the terms of any Tax Equity Document (including, in each case referenced in this clause (J), without limitation, in relation to the loss, recapture or disallowance of any ITC claimed with respect to any Project, any Eligible Projects being Placed in Service, any appraisal procedure and any material dispute in relation to Tax matters or ITCs);

(v)notice of any event which would require a mandatory prepayment under Section 3.04(a) (Incurrence of Indebtedness);

(vi)notice that any insurance required to be maintained pursuant to the Tax Equity Documents or Loan Documents has been, or is threatened to be, cancelled;

(vii)any proposed amendment, supplement, modification or waiver to, or assignment or transfer in respect of, a Portfolio Document (other than any Customer Agreement) or the organizational documents of a Relevant Party at least five (5) Business Days prior to entry thereto; and

(viii)copies of any amendment, supplement, waiver or other modification to a Portfolio Document or the organizational documents of a Relevant Party (provided that such documents in respect of the Customer Agreements may be provided on a quarterly basis but no later than sixty (60) days after the end of March, June, September and December).

(c)Tracking Models and Fund Purchase Options.  

(i)At all times prior to (x) the date when the Flip Point for Fund XVIII is finally determined to have occurred pursuant to its Limited Liability Company Agreement, in respect of Fund XVIII, or (y) the end of the Lease Term, in the case of the Lessor: the Borrower shall deliver to the Administrative Agent at the same time delivered to the Tax Equity Members of the Tax Equity Fund, but in no event later than as required under the applicable Limited Liability Company Agreement or Master Lease Agreement, whether delivered to the applicable Tax Equity Member or not and without any extension or waiver unless consented to by the Administrative Agent (at the written instructions of the Majority Lenders), copies of the applicable Tracking Model or updates thereto, together with such associated reports, exhibits or supplemental information as are delivered to the Tax Equity Member and are otherwise reasonably requested to demonstrate the basis of the calculation of Return Performance and a certification executed by the applicable Guarantor’s Authorized Officer that the Tracking Model has been prepared in good faith in accordance with calculation rules and conventions under the applicable Limited Liability Company Agreement.  The Borrower shall cause representatives of the applicable Guarantor and of the Manager to make themselves available at the request of the Majority Lenders to discuss the basis for such calculations, including the interpretation and application of the calculation rules, conventions and procedures under any Limited Liability Company Agreement.  At any time (A) during the occurrence of any Default or Event of Default or (B) when a Tax Equity Member is

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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exercising its rights under the Tax Equity Documents to dispute a Tracking Model or calculation of each applicable realized internal rate of return (unless (i) an audit of such Tracking Model has occurred or is ongoing by the applicable Tax Equity Member, or by an independent public accounting firm upon the request of such Tax Equity Member under the applicable Limited Liability Company Agreement or Master Lease Agreement, as the case may be, and (ii) the applicable Tax Equity Member or independent public accounting firm has agreed to share the results of such audit with the Administrative Agent and the Lenders) or (C) where (i) the aggregate Performance Deficit for Fund XVIII and the Lessee shown under the Tracking Models is at least equal to $1,000,000 and (ii) there has been a delay in excess of three (3) months in the achievement of the Flip Point from the Flip Point projected in the immediately prior Tracking Model, the Majority Lenders may submit any Tracking Model or Tax Equity Fund Model, together with the exhibits or supplemental information thereto, to the Model Auditor for its review at the sole cost and expense of the Borrower.

(ii)No later than sixty (60) days prior to the date that any Fund Purchase Option is reasonably expected to be exercisable, the Borrower shall cause the applicable Guarantor to notify the Administrative Agent and each Lender (on a non-binding basis) whether it considers the exercise of a Fund Purchase Option to be in the best interests of such Guarantor and the other Relevant Parties as determined in accordance with the Purchase Standard (together with a reasonable explanation supporting such conclusion).  

(d)Major Decisions.  The Borrower shall promptly, but in no event later than five (5) Business Days prior to any vote or approval in respect of a Major Decision, deliver, or cause to be delivered, to the Administrative Agent written notice describing the issue to be decided by vote or approved together with copies of all correspondence received and sent with respect to that Major Decision.

(e)Operating Budgets.

(i)The Borrower shall prepare, or cause to be prepared, for each fiscal year of the Borrower and each Fund an operating and capital expense budget setting forth the anticipated revenues, and Operating Expenses (including expenses for Non-Covered Services) of each Relevant Party for such fiscal year.  The initial Operating Budget for 2017 is attached as Exhibit K (Initial Budget) hereto.  For each succeeding fiscal year (commencing with 2018), the Borrower shall, not later than forty-five (45) days prior to beginning of such fiscal year, submit a proposed Operating Budget to the Administrative Agent for its approval (acting on the written instructions of the Majority Lenders); provided that the approval of the Administrative Agent (acting on the written instructions of the Majority Lenders) shall be deemed to be given (and shall not be required) if the Operating Expenses set forth in the proposed Operating Budget do not exceed 20% in the aggregate over the amount budgeted for such Operating Expenses of the Borrower and the Funds for the applicable year in the Base Case Model as of the Closing Date; provided, that such Operating Expenses may exceed 20% in the aggregate over the

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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amount budgeted for Operating Expenses to the extent Sponsor or a Qualified Purchaser, in its sole discretion, makes a capital contribution for such excess amount.

(ii)The Borrower shall, and shall cause each Guarantor to, deliver to the Administrative Agent (A) each operating budget submitted to the Tax Equity Members in respect of a Tax Equity Fund, at the same time as delivered to such Tax Equity Member but in no event later than as required under the applicable Limited Liability Company Agreement and (B) when available, any amendments to such operating budget, together with all notices or correspondence regarding the approval of such operating budget (if applicable) by the Tax Equity Member; provided that the approval of the Administrative Agent (acting on the written instructions of the Majority Lenders) shall be deemed to be given if such operating budgets do not collectively exceed 20% in the aggregate over the amount budgeted for Operating Expenses in respect of the Tax Equity Funds for the applicable year in the Base Case Model as of the Closing Date; provided, that such operating budgets may exceed 20% in the aggregate over the amount budgeted for Operating Expenses to the extent Sponsor or a Qualified Purchaser, in its sole discretion, makes a capital contribution for such excess amount.

(f)Other Information.  As soon as practicable upon request, the Borrower shall deliver, or cause to be delivered, such other information in relation to the business, operations, Property, Assets or condition (financial or otherwise) of the Borrower and any Relevant Party and the SREC Seller Parties as any Lender may from time to time reasonably request.

(g)Data Site.  Notwithstanding anything contained to the contrary herein, all reporting and notice obligations of Borrower to the Administrative Agent and Lenders under this Section 8.01 (Financial Statements and Other Reports) shall be deemed to be satisfied by posting any applicable reports, notices or other materials to the Platform. To the extent a Lender does not have access to the Platform, the Administrative Agent agrees to deliver such reports, notices and other materials (the “Communications”) to any such Lender promptly after receipt by the Administrative Agent from the Borrower. The Platform is provided “as-is” and “as available”. Neither the Administrative Agent not any of its related parties warrants the accuracy or completeness of the Communications or the adequacy of the Platform and each expressly disclaims liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects is made by the Administrative Agent or any of its related parties in connection with the Communications or the Platform. In no event shall the Administrative Agent of any of its related parties have any liability to the Borrower, any Lender or any other Person for damages of any kind, whether or not based on strict liability and including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Communications through the Platform, any other electronic platform or electronic messaging service or through the internet, except to the extent the liability of any such Person is found in a final ruling by a court of competent jurisdiction to have resulted primarily from such Person’s gross negligence or willful misconduct.

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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(h)Credit Rating.  As soon as practicable upon request, the Borrower shall, deliver or cause to be delivered, such other information as the Administrative Agent may from time to time reasonably request for the purpose of monitoring the Borrower’s Credit Rating.

(i)Updated Projections.  

(i)All projections of Net Cash Flow shall be prepared by the Borrower on a reasonable, good faith basis taking into account the Eligible Projects that are then in service. Until the second anniversary of the Closing Date, all projections of Net Cash Flow shall be based on the P50 Production estimates in the Base Case Model as of the Closing Date and, thereafter, they may be updated by the Borrower on a Scheduled Payment Date no more than once annually to reflect (A) actual average production and payment history (taking into account actual default rates) over the prior two year period, (B) the projected Flip Point (for Fund XVIII) and end of the Lease Term in the case of the Lessor as shown on the applicable Tracking Models or Tax Equity Fund Models (as each are updated in accordance with the Tax Equity Documents) and (C) Operating Expenses as projected under the then-applicable Operating Budget.  

(ii)Prior to updating any projections, the Borrower shall, on the Scheduled Payment Date immediately prior to the Scheduled Payment Date on which such projections are proposed to be updated, provide reasonably detailed calculations of such updated projections and a description of the methodology applied in a Scheduled Payment Date Report. The Borrower shall, upon request by a Lender, reasonably consult with such Lender regarding such initially updated projections and, within thirty (30) days of the applicable Scheduled Payment Date Report, any Lender may notify the Borrower in writing of any suggested corrections to the calculations, assumptions or methodology applied to determine such projections.  The Borrower shall promptly make any corrections that are consistent with the terms of this Agreement and deliver the proposed updated projections with any revisions in the submitted Scheduled Payment Date Report. If the Majority Lenders do not object within thirty (30) days of receipt of such Scheduled Payment Date Report, then the updated projections shall be deemed approved. If the Majority Lenders object within such thirty (30) day period and the Borrower and the Majority Lenders (acting in good faith) are unable to agree to the updated projections, then the existing projections shall continue to apply.

Section 8.02Notice of Events of Default.  The Borrower shall give the Administrative Agent prompt written notice in accordance with Section 12.02 (Notices) of (a) each Default and each Event of Default hereunder of which it obtains Knowledge and (b) each default of which it obtains Knowledge on the part of any party to the other Transaction Documents (other than the Customer Agreements where such breach (itself or when coupled with other breaches under such agreements) could not reasonably be expected to have a Material Adverse Effect) .

Section 8.03Maintenance of Books and Records.  The Borrower shall, and shall cause the Subsidiaries to, maintain and implement, administrative and operating procedures reasonably necessary in the performance of their obligations hereunder and the Borrower shall,

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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and shall cause the Subsidiaries to, keep and maintain at all times, or cause to be kept and maintained at all times, all documents, books, records, accounts and other information reasonably necessary or advisable for the performance of their obligations hereunder to the extent required under applicable Law.

Section 8.04Litigation. The Borrower shall promptly notify the Administrative Agent upon the Borrower, Pledgor, any Relevant Party or the Provider receiving or obtaining:

(a)Written notice of any pending or threatened (in writing) litigation, investigation, action or proceeding of or before any court arbitrator or Governmental Authority affecting the Borrower or any Relevant Party that, if adversely determined, could reasonably be expected to result in:

(i)liability to the Borrower or a Relevant Party in an aggregate amount exceeding $1,000,000, or an aggregate amount with all other such claims exceeding $3,000,000;

(ii)injunctive, declaratory or similar relief against the Borrower or a Relevant Party relating to the transactions contemplated by the Loan Documents; or

(iii)a Material Adverse Effect.

(b)Knowledge of any material development in any action, suit, proceeding, governmental investigation or arbitration at any time which is pending against or affecting any of the Borrower, Pledgor, any Relevant Party or the Provider and could reasonably be expected, in the aggregate across all such material developments in respect of the Borrower, Pledgor, any Relevant Party or the Provider, to have a Material Adverse Effect.

Section 8.05Existence; Qualification.  The Borrower shall, and shall cause each Subsidiary to, at all times preserve and keep in full force and effect its existence as a limited liability company and all rights and franchises material to its business, including its qualification to do business in each state where it is required by Law to so qualify, except to the extent that the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.

Section 8.06Tax Status.  The Borrower shall, and shall cause each of the other Relevant Parties to, maintain its status for U.S. federal income tax purposes as represented in Section 7.11 (Taxes and Tax Status) and shall not recognize any transfer of an ownership interest in the Borrower at any time during the Recapture Period with respect to any Project to a Tax Exempt Person.

Section 8.07Operation and Maintenance.  In accordance with the Relevant Parties’ rights under the Portfolio Documents, the Borrower shall cause, and shall cause the Loan Parties to cause, each Fund and the applicable Fund Provider to, without limitation, keep each Project in good operating condition consistent in all material respects with the applicable Portfolio Documents, including consistent with any provisions of any manufacturer, installer or other warranties and the standard of care required by the Portfolio Documents, and, to the extent

FIXED RATE LOAN AGREEMENT

 

[***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.


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required by the Portfolio Documents, make or cause to be made all repairs necessary to keep such Projects in such condition (ordinary wear and tear excepted).

Section 8.08Preservation of Rights; Maintenance of Projects; Warranty Claims; Security.

(a)The Borrower shall cause each Subsidiary to (i) perform and observe its material obligations under the Portfolio Documents, and to which such Relevant Party is a party and (ii) prudently preserve, protect and defend its (or its Subsidiary’s) material rights, under such Portfolio Documents, including prosecution of suits to enforce any right of such Relevant Party thereunder and enforcement of any claims with respect thereto (including, without limitation, any such rights or claims arising in connection with a Lessee Default).  The Borrower and each Subsidiary shall cause the applicable Fund Pr