EX-10.70 4 ex10_70x12282014.htm EXHIBIT 10.70 Unassociated Document
 
Exhibit 10.70
 
Execution Version

 
CREDIT AGREEMENT
 
among
 
SOLAR STAR CALIFORNIA XIII, LLC
as Borrower,
 
The Several Lenders from Time to Time Parties Hereto, SANTANDER BANK, N.A.,
as Coordinating Lead Arranger and Joint Lead Arranger,

 
MIZUHO BANK LTD.,
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Joint Lead Arrangers
 
MIZUHO BANK LTD.,
as Administrative Agent,
 
SANTANDER BANK, N.A.,
MIZUHO BANK LTD.,
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Issuing Banks
 
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Syndication Agent
 
SANTANDER BANK, N.A.,
as Documentation Agent
 
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Interest Rate Hedge Coordinating Agent
 
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
 
Dated as of October 17, 2014
 

 
A 108 MWac Solar Photovoltaic Generation Facility
 

 
 
 
 
 

 

 
TABLE OF CONTENTS

 


Page

ARTICLE 1. DEFINITIONS
1
     
1.1
Definitions
1
1.2
Rules of Interpretation
32
     
ARTICLE 2. THE CREDIT FACILITIES
33
     
2.1
Construction Loan Commitments
 33
2.2
Procedures for Construction Loan Borrowing and Repayment of Construction Loans
33
2.3
Term Loans and LC Commitments
33
2.4
Term Loan Conversion
34
2.5
Repayment of Term Loans and LC Loans
35
2.6
Fees
. 35
2.7
Optional Prepayments
36
2.8
Mandatory Prepayments
36
2.9
Terms of All Prepayments
37
2.10
Termination or Reduction of Commitments
38
2.11
Conversion and Continuation Options
38
2.12
Limitations on LIBOR Rate Tranches
39
2.13
Interest Rates and Payment Dates
 39
2.14
Computation of Interest and Fees
40
2.15
Promissory Notes
40
2.16
Letters of Credit
40
2.17
General Loan Funding Terms; Pro Rata Treatment and Payments
45
2.18
Inability to Determine Interest Rate
47
2.19
Legal Requirements
47
2.20
Taxes
48
2.21
Indemnity
51
2.22
Change of Lending Office
52
2.23
Replacement of Lenders
52
2.24
Defaulting Lender
52
     
ARTICLE 3. CONDITIONS PRECEDENT
54
     
3.1
Conditions Precedent to the Closing Date
54
3.2
Conditions Precedent to the Construction Loans
60
3.3
Conditions Precedent to the Issuance of Letters of Credit
62
3.4
Conditions Precedent to the Term Conversion Date
62
3.5
Confirmation
65
     
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
 65
     
4.1
Existence; Compliance with Laws
65
4.2
Ownership of Capital Stock
65
4.3
Power; Authorization; Enforceable Obligations; No Legal Bar
65
4.4
Governmental Approvals
66
4.5
ERISA and Labor Matters
66
4.6
Taxes
67
4.7
Business, Debt, Contracts, Etc.
67
4.8
Filings
67
4.9
Investment Company; Holding Company Act; EWG
67
     
 

 
 
 
ii

 

 

4.10
Governmental Regulation
68
4.11
Federal Reserve Requirements
 68
4.12
Litigation
68
4.13
Compliance with Legal Requirements
69
4.14
No Default
70
4.15
Permits
 70
4.16
Use of Proceeds
70
4.17
Insurance
71
4.18
Environmental Matters
71
4.19
Title to Properties; Possession Under Leases
71
4.20
Utilities
72
4.21
Roads/Feeder Lines
72
4.22
Sufficiency of Material Project Documents
72
4.23
Material Project Documents
73
4.24
Disclosure
 73
4.25
Construction Budget; Projection
73
4.26
Intellectual Property
 73
4.27
Land Not in Flood Zone
74
4.28
Partnerships and Joint Ventures; Separateness
74
4.29
Financial Statements; Material Adverse Effect
 74
4.30
Accounts
74
4.31
Construction of the Project
 74
4.32
Sanctions and Anti-Corruption Laws
 74
4.33
Security Documents
 75
4.34
Solvency
75
4.35
Sales Tax Exemption; Resale Certificate
 75
     
ARTICLE 5. AFFIRMATIVE COVENANTS OF BORROWER
75
     
5.1
Reporting Requirements
76
5.2
Maintenance of Existence, Properties; Etc
79
5.3
Compliance with Legal Requirements; Etc.
79
5.4
Insurance; Events of Loss
80
5.5
Taxes; Assessments and Utility Charges
80
5.6
Properties, Books and Records
81
5.7
Use of Proceeds
81
5.8
Payment of Obligations
82
5.9
Construction and Operating Reports
82
5.10
Material Project Documents
83
5.11
Completion; Acceptance Tests
83
5.12
EWG Status; Market-Based Rate Authority
84
5.13
Interest Rate Protection
84
5.14
Power Purchase Arrangement
85
5.15
Sanctions and Anti-Corruption Laws
85
5.16
Operation of Project and Annual Operating Budget
85
5.17
Final Completion
86
5.18
Debt Service Coverage Ratio
86
5.19
Separateness Provisions
87
5.20
Further Assurances
87
5.21
Additional Collateral
87
5.22
Construction Contracts
88
5.23
COD
88
 

 
iii

 

5.24
Participating Intermittent Resource Status
88
5.25
Equity Commitment
88
5.26
Consultants
89
5.27
Compliance with General Order 167
89
5.28
SLTP Project
89
     
ARTICLE 6. NEGATIVE COVENANTS OF BORROWER
89
     
6.1
Indebtedness
89
6.2
Liens
89
6.3
Investments
90
6.4
Prohibition of Fundamental Changes; Sale of Assets, Fiscal Year, Etc.
90
6.5
Nature of Business
90
6.6
Transactions With Affiliates
90
6.7
No Distributions
91
6.8
Material Project Documents
91
6.9
Budget; Change Orders
92
6.10
Additional Project Agreements
92
6.11
Swap Agreements
92
6.12
ERISA
 92
6.13
Subsidiaries
92
6.14
Accounts
93
6.15
Capital Expenditures
93
6.16
Lease Transactions
93
6.17
Hazardous Substances
93
6.18
Regulations
93
6.19
Prepayment of Permitted Affiliate Subordinated Indebtedness
93
6.20
Modification of Additional Documents
93
6.21
Fiscal Year
93
6.22
Permitted Tax Equity Investment
93
6.23
Network Upgrades
95
     
ARTICLE 7. EVENTS OF DEFAULT; REMEDIES
95
     
7.1
Failure to Make Payments
95
7.2
Misrepresentations
95
7.3
Breach of Terms of This Agreement, Other Loan Documents
95
7.4
Cross Default
 96
7.5
Bankruptcy; Insolvency
 96
7.6
ERISA Events
97
7.7
Judgments
 97
7.8
Security
97
7.9
Loss of Applicable Permits
 97
7.10
Holdings
97
7.11
Equity Commitment
 98
7.12
Change of Control
98
7.13
Abandonment of Project
98
7.14
Breach of Material Project Documents
98
7.15
Loss of Material Project Document
98
7.16
Loss of Collateral
99
7.17
Term Conversion
99
7.18
Remedies
99
 

 
iv

 

 

ARTICLE 8. ADMINISTRATIVE AGENT AND COLLATERAL AGENT; OTHER AGENTS
100
     
8.1
Appointment
100
8.2
Delegation of Duties
100
8.3
Exculpatory Provisions
101
8.4
Reliance by Agents
 101
8.5
Notice of Default
101
8.6
Non-Reliance on the Agents and Other Lenders
102
8.7
Indemnification
 102
8.8
Agents in Their Individual Capacity
102
8.9
Successor Agents
102
8.10
Agents under Security Documents
103
8.11
Collateral Agent’s Duties
103
8.12
Right to Realize on Collateral
105
8.13
Other Agents
105
8.14
Financial Liability
105
     
ARTICLE 9. MISCELLANEOUS
105
     
9.1
Amendments
105
9.2
Addresses
107
9.3
No Waiver; Cumulative Remedies
108
9.4
Survival of Representations and Warranties
108
9.5
Payment of Expenses and Taxes
 108
9.6
Attorney In Fact
109
9.7
Successors and Assigns; Participations and Assignments
110
9.8
Adjustments; Set-off
113
9.9
Independent Consultants
114
9.10
Entire Agreement
115
9.11
Governing Law
 115
9.12
Submission To Jurisdiction; Waivers
115
9.13
Severability
115
9.14
Headings
115
9.15
Acknowledgements
115
9.16
Deed of Trust/Security Documents
116
9.17
Limitation on Liability
 116
9.18
Waiver of Jury Trial
116
9.19
Usury
 116
9.20
Confidentiality
116
9.21
Counterparts
117
9.22
Third Party Beneficiaries
117
9.23
Patriot Act Compliance
117
9.24
Limited Recourse
117
 

INDEX OF EXHIBITS
EXHIBIT A-1
Form of Construction Loan Notice of Borrowing
EXHIBIT A-2
Form of Notice of Term Conversion
EXHIBIT A-3
Form of Notice of Conversion or Continuation
EXHIBIT B
Closing Date Base Case Model
EXHIBIT C-1
Form of Construction Loan Note
EXHIBIT C-2
Form of Term Loan Note
 


 
v

 
 

EXHIBIT C-3
Form of LC Loan Note
EXHIBIT D
Form of Assignment and Assumption
EXHIBIT E
Form of Construction Budget and Schedule
EXHIBIT F
Form of Annual Operating Budget
EXHIBIT G
Form of LC Issuance Notice
EXHIBIT H
Form of Exemption Certificate
EXHIBIT I
Form of Closing Date Certificate
EXHIBIT J
Form of Pledge Agreement
EXHIBIT K
Form of Security Agreement
EXHIBIT L
Form of Summary Operating Report
EXHIBIT M
Form of Interest Rate Agreement
EXHIBIT N-1
Form of DSR Letter of Credit
EXHIBIT O
Form of Second Interconnection Agreement Amendment
EXHIBIT P
Form of CCSF Mitigation Agreement
EXHIBIT Q
Form of Monthly Independent Engineer Report
   
   
 
INDEX OF SCHEDULES
   
Schedule 1.1A
Commitments
Schedule 1.1B
Amortization Schedule
Schedule 1.1C
Environmental Site Assessments
Schedule 1.1D
Knowledge
 Schedule 4.13
Legal Requirements
Schedule 4.15
Permits
Schedule 4.18
Environmental Matters
Schedule 4.19(a), (c) and (e) 
Mortgaged Property; Condemnation Proceedings / Changes in Zoning; Site Lease Agreements
Schedule 4.21
Roads and Feeder Lines
Schedule 4.34(a) and (b)
UCC Filing Jurisdictions; Deed of Trust Filing Jurisdictions
Schedule 5.4
Insurance
Schedule 5.2(d)
Authorized Post-Closing Conveyances
   
   
INDEX OF ANNEXES
   
Annex 1
Lenders; Lending Offices
Annex 2
Acceptable Tax Equity Forbearance Terms
 
 
 
 
vi

 
 
CREDIT AGREEMENT
 
This CREDIT AGREEMENT (this “Agreement”), dated as of October 17, 2014, by and among SOLAR STAR CALIFORNIA XIII, LLC a Delaware limited liability company (the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement as Lenders, MIZUHO BANK, LTD., as Administrative Agent, SANTANDER BANK, N.A., MIZUHO BANK, LTD., and CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Letter of Credit Issuing Banks (in such capacities, the “Issuing Banks”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,  as syndication agent (in such capacity, the “Syndication Agent”), SANTANDER BANK, N.A., as documentation agent (in such capacity, the “Documentation Agent”), CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as coordinating agent for the Interest Rate Hedge Counterparties (in such capacity, the “Interest Rate Hedge Coordinating Agent”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, solely in its capacity as Collateral Agent.

The Borrower has, subject to the terms and conditions set forth in this Agreement, requested that (a) the Lenders make loans to the Borrower to fund, among other things, (i) certain Project Costs, and, under certain circumstances, certain Operating Costs and Debt Service requirements, in each case, up to the amounts specified in this Agreement, and (ii) any Drawings on the Letters of Credit, and (b) the Issuing Banks issue the Letters of Credit.  The Lenders are willing to make such loans and the Issuing Banks are willing to issue the Letters of Credit, in each case upon the terms and subject to the conditions of this Agreement.

AGREEMENT
 
In consideration of the agreements herein and in the other Loan Documents and in reliance upon the representations and warranties set forth herein and therein, the parties agree as follows:
 
ARTICLE 1.
 
DEFINITIONS
 
1.1        Definitions.  Except as otherwise expressly provided, capitalized terms used in this Agreement (including in the preamble hereto) and its exhibits shall have the meanings given in this Section 1.1.
 
Acceptable Credit Support” has the meaning given to such term in the Equity Contribution Agreement.
 
Acceptable Letter of Credit Provider” has the meaning given to such term in the Depositary Agreement.

Additional Project Agreements” means, collectively, any contract or agreement entered into by the Borrower subsequent to the Closing Date that either (a) replaces or is entered into in substitution of an existing Material Project Document, and any further replacement or substitution thereof or (b) obligates the Borrower to make payments in an aggregate amount exceeding $1,000,000 in any fiscal year or $2,000,000 in the aggregate over the term of such contract or provides for payments to the Borrower in an aggregate amount exceeding $1,000,000 in any fiscal year or $2,000,000 in the aggregate over the term of such contract, provided that in the case of this clause (b), no Required Lender consent shall be required pursuant to Section 6.10 for contracts or agreements relating to the purchase of materials, equipment, insurance, parts or other personal property of any nature necessary or useful to the operation, maintenance, service or repair of the Project that are expressly included in the Construction
 
 
1

 
 
Budget and Schedule or the then-current Annual Operating Budget and the Annual Operating Plan (if applicable), provided further, for the avoidance of doubt, that Swap Agreements will not be Additional Project Documents.

Administrative Agent” means Mizuho Bank, Ltd., in its capacity as administrative agent for the Lenders, or its successors or assigns appointed pursuant to the terms of this Agreement.
 
Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote more than 10% of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

Agent Fee Agreements” means, collectively, (i) the Fee Letter Agreement, dated as of October 17, 2014, by and between the Borrower and Mizuho Bank, Ltd., as Administrative Agent, and (ii) the Fee Schedule, dated as of October 17, 2014, by and between the Borrower and Deutsche Bank Trust Company Americas, as Depositary Bank and Collateral Agent.

Agent Indemnitee” has the meaning given to such term in Section 8.7.
 
Agents” means, collectively or individually, depending on the context, the Administrative Agent, the Collateral Agent, the Syndication Agent, the Documentation Agents, the Interest Rate Hedge Coordinating Agents and the Joint Lead Arrangers.
 
Agreement” has the meaning given to such term in the preamble to this Agreement.
 
Amortization Schedule” means the Amortization Schedule set forth as Schedule 1.1B to this Agreement, which shall be updated on the Term Conversion Date and as further updated from time to time as necessary to reflect certain prepayments made by or on behalf of the Borrower in accordance with Section 2.7 or Section 2.8, as applicable.
 
Annual Operating Budget” means a budget detailed by month of anticipated revenues and anticipated expenditures of the Borrower with respect to the Project, such budget to include Debt Service, proposed distributions, maintenance, repair and operation expenses (including reasonable allowance for contingencies), costs and expenses related to the purchase of parts or other personal property of any nature necessary or useful to the operation, maintenance, service or repair of the Project, management expenses and fees, taxes, insurance premiums, reserves and all other anticipated Operating Costs for each applicable fiscal year of Borrower substantially in the form of Exhibit F to this Agreement.
 
 
Annual Operating Plan” means the annual operating plan that shall contain a reasonably detailed narrative description of (a) the categories of revenues and costs set forth in the Annual Operating Budget; (b) maintenance and repair activities expected or planned for the upcoming year with respect to the Project; (c) the planned purchases of parts or other personal property of any nature necessary or useful to the operation, maintenance, service or repair of the Project; and (d) any event or condition forecasted for the relevant year that is likely to require the incurrence of major maintenance expense items with respect to the Project in an amount that is at least 10% higher than the corresponding amount set forth with respect to such category in the Base Case Model for such year.

 
2

 
 
Applicable Margin” means for each Type of Loan during each applicable period set forth in the table shown below, the applicable per annum percentage under the relevant column heading below:
 
Applicable Period
Base Rate Loans
LIBOR Loans
From the Closing
Date until but not including December 31,
2019:
0.625%
1.625%
On December 31,
2019 and thereafter:
0.875%
1.875%

Applicable Permit” means, at any time, any Permit to be obtained by or on behalf of the Borrower, including any such Permit relating to zoning, environmental or natural resource protection, pollution, sanitation, CPUC, ERO, CAISO, FERC, PUHCA 2005, safety, siting or building, importation of technology, equipment and materials, that is (a) material and necessary at such time in light of the stage of development, construction or operation of the Project to construct, test, operate, maintain, repair, own or use the Project as contemplated by the Operative Documents, to sell electricity therefrom, to enter into any Operative Document or to consummate any transaction contemplated thereby; (b) necessary so that (i) none of the Agents, the Lenders, the Issuing Banks or any Affiliate of any of them may be deemed by any Governmental Authority to be subject to regulation under the FPA or PUHCA 2005 or under the California Public Utilities Code, as amended, respecting the regulation of electrical corporations solely as a result of the Borrower’s construction, operation, ownership or control of the Project or the sale of electricity therefrom by Borrower (except in the event that any of the Agents, the Lenders, or any Affiliate of any of them exercises remedies under the Operative Documents or otherwise becomes the owner or operator of the Project or directs the sale of electricity therefrom), or (ii) none of the Borrower nor any Affiliate of the Borrower that is a party to an Operative Document may be deemed by any Governmental Authority to be subject to, or not exempt from, regulation under the federal access to books and records provisions of PUHCA 2005, or under any financial, organizational or rate regulation as a “public utility” or “electric utility” under the California Public Utilities Code, as amended, or (c) listed as such on Schedule 4.15.
 
Approved Fund” has the meaning given to such term in Section 9.7(b).
 
Asset Management Agreement” means that certain Asset Management and Administration Agreement dated as of October 6, 2014 by and between SunPower Capital Services, LLC and the Borrower.
 
Assignee” has the meaning given to such term in Section 9.7(b)(i).
 
Assignment and Assumption” means an Assignment and Assumption, substantially in the form of Exhibit D to this Agreement.
 
Available Amount” has the meaning given to such term in Section 2.16(a)(ii).
 
 
3

 
 
Base Case Model” means the Closing Date Base Case Model and the Term Conversion Date Base Case Model, as applicable.
 
Base Rate” means, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate for such day plus 0.50% and (c) the LIBOR Rate for a LIBOR Loan with a one-month interest period commencing on such day plus 1%.  Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Rate, respectively.
 
Base Rate Loans” means Loans that bear interest at rates based upon the Base Rate.
 
Benefited Lender” has the meaning given to such term in Section 9.8(a).
 
Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).

Borrower” has the meaning given to such term in the preamble hereto.
 
Borrowing” means a borrowing or advance of credit under this Agreement.
 
Breakage Costs” has the meaning given to such term in Section 2.21.
 
Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in either New York City or London are authorized or required by law to close; provided, that with respect to notices and determinations in connection with, and payments of principal and interest on, LIBOR Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.
 
CAISO” means the  California Independent System Operator Corporation, or successor entity which dispatches certain generating units and loads and controls the transmission grid in California.
 
CAISO Tariff” means the CAISO Fifth Replacement FERC Electric Tariff, as it may be amended, supplemented or replaced (in whole or in part) from time to time.
 
Capital Lease Obligations” means,  as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

Capital Stock” means  any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
 
CCSF” means the City and County of San Francisco acting through its Public Utilities Commission.
 
 
4

 
 
CCSF Mitigation Agreement” means the proposed System Impact Mitigation Agreement which may be executed between the Borrower and CCSF substantially in the form of attached Exhibit P.

Change of Control” means (a) prior to the Term Conversion Date, (i) the Sponsor and any Permitted Transferees failing, on a combined basis, to beneficially own (within the meaning of Rule 13d-5 of the 1934 Act) directly or indirectly 100% of the aggregate voting and economic interests in the Borrower (other than any voting and economic interests owned by a Permitted Tax Equity Investor), (ii) SunPower Corporation failing to have the power, directly or indirectly, to direct or cause the direction of the management, operation and policies of the Borrower and the construction, operation and management of the Project, whether through the ownership of voting interests, by contract or otherwise or (iii) Holdings failing to directly own 100% of the equity interest in the Borrower and (b) after the Term Conversion Date, (i) the Sponsor and any Permitted Transferees failing, on a combined basis, to beneficially own (within the meaning of Rule 13d-5 of the 1934 Act) directly or indirectly at least 50% of the aggregate voting and economic interests in the Borrower (other than any voting and economic interests owned by a Permitted Tax Equity Investor) (ii) neither SunPower Corporation nor any Permitted Transferees has the power, directly or indirectly, to direct or cause the direction of the management, operation and policies of the Borrower and the construction, operation and management of the Project, whether through the ownership of voting interests, by contract or otherwise, or (iii) Holdings ceases to directly own one hundred percent (100%) of the equity interest of Borrower, unless otherwise consented in writing by the Required Lenders.

Class” means, when used in reference to any Loan, whether such Loan is a Construction Loan, Term Loan, DSR LC Loan or Project LC Loan and, when used in reference to any Commitment, whether such Commitment is a Construction Loan Commitment, Term Loan Commitment, DSR LC Commitment or Project LC Commitment.

Closing Date” means the date when each of the conditions to the initial Borrowing set forth in Sections 3.1 and 3.2 has been satisfied (or waived in writing by the Administrative Agent and the Lenders).
 
Closing Date Base Case Model” means the “Closing Date Base Case Model” containing financial projections for the Borrower and the Project as of the Closing Date, prepared by the Borrower and containing assumptions satisfactory to the Administrative Agent, the Issuing Banks and the Lenders, attached as Exhibit B to this Agreement.
 
Closing Date Equity Contribution” means any development costs incurred by the Borrower or any Affiliate of the Borrower prior to the Closing Date as confirmed by the Independent Engineer on the Closing Date not to exceed $40,000,000.
 
COD” means each of “Substantial Completion” under the EPC Agreement, the “Commercial Operation Date” under the SCE Power Purchase Agreement and the “Commercial Operation Date” under the Interconnection Agreement has occurred.
 
Code” means the Internal Revenue Code of 1986, as amended from time to time.
 
Collateral” means all property of the Loan Parties, now owned, leased, or hereafter acquired, upon which a Lien is purported to be created by any Security Document.

Collateral Accounts” has the meaning given to such term in Section 1.1 of the Depositary Agreement.
 
 
5

 
 
Collateral Agent” means Deutsche Bank Trust Company Americas, as collateral agent for the Secured Parties, together with any of its successors appointed pursuant to the Loan Documents.
 
Commitment Fee Rate” means 0.50% per annum.
 
Commitments” means the Construction Loan Commitments, the Term Loan Commitments and the LC Commitments.
 
Conduit Lender” means  any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Sections 2.19, 2.20, 2.21 or 9.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Commitment.

Consents” has the meaning given to such term in Section 3.1(n).
 
Construction Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.
 
Construction Budget and Schedule” means a detailed schedule of the development and construction of the Project, a detailed total Project budget and an indicative monthly draw-down schedule, each as prepared by the Borrower and approved by the Administrative Agent (in consultation with the Independent Engineer) as of the Closing Date, in the form of Exhibit E to this Agreement (as modified in accordance with Section 6.9(a)), and containing a detailed description of Project Costs incurred and expected to be incurred with respect to the development and construction of the Project, in each case for the period commencing on the date of the Construction Budget and Schedule through the expected date of Final Completion.

Construction Completion Subaccount” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

Construction Loan” has the meaning given to such term in Section 2.1.
 
Construction Loan Availability Period” means the period commencing on the first date upon which the Borrower satisfies the conditions precedent set forth in Sections 3.1 and 3.2 (or such conditions precedent are waived in accordance therewith) and ending on the earlier of (a) the Construction Loan Maturity Date and (b) the date the Construction Loan Commitments are earlier cancelled or expire pursuant to this Agreement.
 
Construction Loan Commitments” means, with respect to any Lender, the commitment of such Lender, if any, to make Construction Loans in an aggregate principal amount not to exceed the amount, expressed as a Dollar amount, set forth under the heading “Construction Loan Commitment” opposite such Lender’s name on Schedule 1.1A, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Construction Loan Commitment, as applicable, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender under

 
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Section 9.7.  The aggregate amount of the Construction Loan Commitments on the Closing Date is $317,973,487.16.

Construction Loan Maturity Date” means the earliest of (a) the Date Certain, (b) the Term Conversion Date and (c) the date of acceleration of the Construction Loans under Section 7.18(a) or Section 7.18(b)(ii).
 
Construction Loan Notes” means the notes provided for under Section 2.15(a).
Construction Loan Notice of Borrowing” has the meaning given to such term in Section 2.2.
 
Construction Status Report” has the meaning given to such term in Section 5.17.
 
Consumer Price Index” means the Consumer Price Index, “All Urban Consumers; U.S. City Average,” as published by the U.S. Department of Labor, Bureau of Labor Statistics, or if such index shall cease to be published, such other index as shall be reasonably selected by the Administrative Agent and the Borrower.

Contractual Obligation” means,  as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Counterparty” has the meaning set forth in Section 5.13.
 
CPUC” means the California Public Utilities Commission and its successors.
 
Crédit Agricole” means Crédit Agricole Corporate and Investment Bank.
 
Date Certain” means January 16, 2016.
 
Debt Service” means, for any period,  an amount equal to all principal including, without duplication, all amounts overdue and not paid from any prior period and all Scheduled Repayment Amounts of the unpaid principal amount of the Loans for the relevant period, and any interest and fees accrued with respect to the Loans and the Letters of Credit, then scheduled to be due and payable by the Borrower under any Loan Document (including, without duplication of interest amounts payable under this Agreement, ordinary course settlement amounts payable by the Borrower under the Interest Rate Agreements, net of ordinary course settlement amounts received by the Borrower thereunder during the relevant period).

Debt Service Coverage Ratio” or “DSCR” means for each Repayment Date beginning on the first Repayment Date after the Term Conversion Date, the ratio of (i) Operating Cash Flow Available for Debt Service for the preceding twelve-month period (or, for any DSCR calculation performed prior to the first anniversary of the Term Conversion Date, the period commencing on the Term Conversion Date and ending on such Repayment Date) to (ii) the amount of Debt Service for such period.

Debt Service Reserve Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

 
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Decommissioning Issuing Bank” means Santander Bank, N.A. in its capacity as issuing bank of the Decommissioning Letter of Credit.

Decommissioning Letter of Credit” means an irrevocable standby letter of credit acceptable in form and substance to the Decommissioning Issuing Bank and the Administrative Agent that is issued pursuant to Section 14.5 of the Site Lease for the account of the Borrower in favor of Merced County by the Decommissioning Issuing Bank, and in the maximum stated amount provided in Section 2.16(a)(i)(B) but in any event not to exceed the Project LC Commitment of the Decommissioning Issuing Bank.
 
Deed of Trust” means the Deed of Trust, Security Agreement, Assignment of Leases, Rents and Profits, Financing Statement, Fixture Filing and Request for Notice made by the Borrower in favor of First American Title Insurance Company, as trustee for the benefit of the Collateral Agent for the benefit of the Secured Parties.

Default” means any occurrence, circumstance or event, or any combination thereof, which, with the lapse of time, the giving of notice or both, would constitute an Event of Default.

Default Rate” has the meaning given to such term in Section 2.13(c).
 
Defaulting Lender” means, subject to Section 2.24(b), any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Construction Loans, within three (3) Business Days of the date required to be funded by it hereunder, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements generally in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Construction Loan hereunder and states that such position is based on such Lender’s reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after request by the Administrative Agent to confirm in writing that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has (i) become the subject of a proceeding under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

Deferred Development Fee” means the  “Service Fee” due to the Developer under Section 3.1 of the Development Services Agreement that is payable only on the Term Conversion Date.

 
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Delay Liquated Damages” has the meaning given to such term in the Depositary Agreement.
 
Depositary Agreement” means that certain Depositary Agreement, dated as of the date hereof, among the Borrower, the Administrative Agent, the Collateral Agent and the Depositary Bank.

Depositary Bank” means Deutsche Bank Company Trust Americas, in its capacity as Depositary Bank as defined in and as acting under the Depositary Agreement, or its successor or assign appointed pursuant to the terms of the Depositary Agreement.

Developer” means SunPower DevCo, LLC, a Delaware limited liability company.
 
Development Services Agreement” means the Development Services Agreement, dated as of October 6, 2014 between the Developer and the Borrower.

Discharge Date” means the date when all Obligations (excluding contingent indemnification and other provisions, that, by their express terms, survive the repayment of the Loans, interest, fees and other amounts owed under this Agreement) of the Borrower under this Agreement and the other Loan Documents have been indefeasibly paid in full in immediately available funds, no Commitments remain outstanding, the Interest Rate Agreements have been terminated and the Letters of Credit have expired by their terms or been terminated by their beneficiaries (pursuant to documentation reasonably acceptable to the Administrative Agent and the Issuing Banks).
 
Distribution Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

Distribution Reserve Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

District Mitigation Agreement” means the Mitigation of Impacts Agreement, dated as of April 18, 2013, among the Borrower, Modesto Irrigation District and Turlock Irrigation District.
 
Documentation Agent” has the meaning given to such term in the preamble of this Agreement.
 
Dollars” and “$” means United States dollars or such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts in the United States of America.

Drawing” means a drawing by the applicable beneficiary on a Letter of Credit.
 
DSR Issuing Banks” means (a) Santander Bank, N.A., Mizuho Bank, Ltd., and Crédit Agricole Corporate and Investment Bank in their respective capacities as issuing bank of a DSR Letter of Credit and (b) each other Lender so designated by the Borrower with the written consent of such Lender in accordance with Section 2.16(o), in each case, in its capacity as an issuer of a DSR Letter of Credit.
 
DSR LC Commitment” means the commitment of each DSR Issuing Bank to issue and continue to make available a DSR Letter of Credit and make DSR LC Loans to the Borrower in respect of its Debt Service Reserve Letter of Credit, in an aggregate stated or principal amount at any one time not to exceed the amount, expressed as a Dollar amount, set forth under the heading “DSR LC Commitment” opposite such DSR Issuing Bank’s name on Schedule 1.1A, as such amount may be reduced from time to

 
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time pursuant to Section 2.10.  The aggregate amount of the DSR LC Commitments of all DSR Issuing Banks on the Closing Date shall be $17,488,832.59.
 
DSR LC Loan” means any loan made to the Borrower by any DSR Issuing Bank as a result of a Drawing on a DSR Letter of Credit issued by such DSR Issuing Bank as set forth in Section 2.16(e).
 
DSR Letter of Credit” means an irrevocable standby letter of credit to be issued pursuant to Section 2.16 by an Acceptable Letter of Credit Provider, for the account of the Borrower by any DSR Issuing Bank for the benefit of the Depositary, substantially in the Exhibit N-1 and in a maximum stated amount not to exceed the DSR LC Commitment of such DSR Issuing Bank.
 
DSR Requirement” has the meaning given to such term in Section 1.1 of the Depositary Agreement.
 
ECA Parent Guarantor” means SunPower Corporation, in its capacity as guarantor under the ECA Parent Guaranty.
 
ECA Parent Guaranty” has the meaning given to such term in the Equity Contribution Agreement.
 
Environment” means ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface, soil or subsurface strata or sediment, natural resources such as flora and fauna or as otherwise defined in any Environmental Law.

Environmental Claim” means any and all actions, suits, demands, demand letters, claims, Liens, notices of non-compliance or violation, notices of liability or potential liability, investigations, proceedings, directives, orders or agreements relating in any way to the Environment, any Environmental Law or the release of or human exposure to any Hazardous Substance.

Environmental Law” means any and all federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Legal Requirements (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health, natural resources or the Environment or which give rise to liability based on impermissible exposure to Hazardous Substances, as now or may at any time hereafter be in effect.

Environmental Site Assessments” means the Environmental Site Assessments identified on Schedule 1.1C, including all exhibits and appendices and all other attachments thereto.
 
EPC Agreement” means that certain Engineering, Procurement & Construction Agreement, from the EPC Contractor, dated as of October 6, 2014 by and between the EPC Contractor and the Borrower.
 
EPC Contractor” means SunPower Corporation, Systems, a Delaware corporation.
 
EPC Parent Guaranty” means the Guaranty, dated as of October 6, 2014 by the EPC Parent Guarantor in favor of the Borrower.

EPC Parent Guarantor” means SunPower Corporation, in its capacity as guarantor under the EPC Parent Guaranty.
 
 
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Equator Principles” means those principles and standards set forth in “The Equator Principles III – 2013”, as currently available at www.equatorprinciples.com,  as amended from time to time.
 
Equity Commitment” has the meaning given to such term in the Equity Contribution Agreement.
 
Equity Contribution” has the meaning given to such term in the Equity Contribution Agreement.
 
Equity Contribution Agreement” means the Equity Contribution Agreement, dated as of the date hereof, among the Equity Investor, the Borrower, the Administrative Agent and the Collateral Agent.

Equity Contribution Documents” means the Equity Contribution Agreement, the ECA Parent Guaranty and any Acceptable Credit Support.
 
Equity Investor” has the meaning given to such term in the Equity Contribution Agreement.
 
Equity Requirement” has the meaning given to such term in the Equity Contribution Agreement.
 
ERO” means the Electric Reliability Organization, within the meaning of Section 215(a)(2) of the FPA.
 
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414 of the Code.

ERISA Event” means (a) any Reportable Event; (b) the existence with respect to any ERISA Plan of a non-exempt Prohibited Transaction; (c) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Section 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan), whether or not waived; (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure by any Loan Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (e) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (f) a determination that any Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (g) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the incurrence by any Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; (i) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, in

 
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Reorganization or in endangered or critical status, within the meaning of Section 432 of the Code or Section 305 of ERISA; and (j) with respect to any Foreign Plan or Foreign Benefit Arrangement, (A) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan or Foreign Benefit Arrangement; (B) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan or Foreign Benefit Arrangement required to be registered; or (C) the failure of any Foreign Plan or Foreign Benefit Arrangement to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan or Foreign Benefit Arrangement.

ERISA Plan” means any employee benefit plan as defined in Section 3(3) of ERISA, (whether or not subject to ERISA) including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Loan Party or any ERISA Affiliate is (or if such plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
 
Event of Default” and “Events of Default” have the meanings given in Article 7.
 
Event of Loss” means a single insured event or a related series of insured events causing any loss of, destruction of or damage to, or any condemnation or other taking of (including by eminent domain), of all or any portion of the property or assets of the Borrower.

EWG” means an “exempt wholesale generator,” as such term is defined in Section 16451(6) of PUHCA 2005 and the FERC’s implementing regulations at 18 C.F.R. § 366.1.
 
Facilities” means each of (a) the Construction Loan Commitments and the Construction Loans made thereunder (the “Construction Loan Facility”), (b) the Term Loan Commitments and the Term Loans made thereunder (the “Term Loan Facility”), (c) the DSR LC Commitments and the DSR Letters of Credit and DSR LC Loans made thereunder (the “DSR LC Facility”), and (d) the Project LC Commitments and the Project Letters of Credit and Project LC Loans made thereunder (the “Project LC Facility”).
 
FATCA” means 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, published guidance or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any inter-governmental agreement (together with any law implementing such agreement including any U.S. or non-U.S. regulations or guidance notes).

Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three (3) federal funds brokers of recognized standing selected by it.

Fee Payment Date” means (a) the last day of each June and December of each year falling after the date hereof and (b) as applicable, the Construction Loan Maturity Date, the Term Loan Maturity Date and the LC Loan Maturity Date.

 
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FERC” means the Federal Energy Regulatory Commission, or its successor.
 
Final Completion” means the later of the date of Final Completion (as defined in the EPC Agreement) and the date that all items on the Punch List (as defined in the EPC Agreement) have been completed.

First Repayment Date” means June 30, 2016.
 
Fitch”  means  Fitch  Ratings,  Ltd.,  or  any  successor  to  the  ratings  agency  business thereof.

Forbearance Agreement” has the meaning given to such term in Section 6.22(c).
 
Forbearance  Start  Date”  means  a date  to  be agreed  between  the  Borrower  and  the Lenders that will be   the date on which a minimum threshold investment  has been made by the Tax Equity Investor, provided certain other conditions have been satisfied relating to the anticipated COD, the Equity Investor’s remaining equity commitment and the nonexistence of Defaults or Events of Default.

Foreign Benefit Arrangement” means any employee benefit arrangement mandated by non-U.S. law that is maintained or contributed to by any Loan Party, or by any ERISA Affiliate.
 
Foreign Plan” means  each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is not subject to U.S. law and is maintained or contributed to by any Loan Party, or by any ERISA Affiliate.

FPA” means the Federal Power Act, as amended.
 
Funds Flow Memorandum” shall mean the memorandum, dated as of October 17, 2014, delivered by the Borrower to the Administrative Agent with respect to the disbursement of funds on the Closing Date.

GAAP” means generally accepted accounting principles in the United States as in effect from time to time.

Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
 
Governmental Rule” means any law, rule, regulation, ordinance, order, code interpretation, judgment, decree, directive, guideline, policy or similar form of decision of any Governmental Authority.

Ground Lessor” means AKT Santa Nella Solar Investors II, LLC, a California limited liability company.

Guarantee” as to any Person (the “guaranteeing person”), means any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any Letters of Credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third

 
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Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

Hazardous Substances” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances, petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature, which in each case is or becomes subject to regulation or which can give rise to liability under any Environmental Law.
 
Holdings” means Solar Star California XIII Parent, LLC, a Delaware limited liability company.

Improvements” has the meaning given to such term in the Deed of Trust.
 
Indebtedness” of any Person at any date, means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all redeemable preferred Capital Stock of such Person, (h) all Guarantee obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) for the purposes of Section 7.4 only, all obligations of such Person in respect of Interest Rate Agreements.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor.
 
Indemnified Liabilities” has the meaning given to such term in Section 9.5.

 
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Indemnitee” has the meaning given to such term in Section 9.5.
 
Independent Consultants” means, collectively, the Insurance Consultant, the Independent Engineer, the Transmission Consultant, the Environmental Consultant and the Solar Resource Consultant or their successors appointed pursuant to Section 9.9.
 
Independent Engineer” means Leidos or its successor appointed pursuant to Section 9.9.
 
Insolvent” means, with respect to any Multiemployer Plan, the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.
 
Insurance Consultant” means Moore-McNeil, LLC, or its successor appointed pursuant to Section 9.9.
 
Intellectual Property” means  the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

Interconnection Agreement” means the Large Generator Interconnection Agreement, dated as of March 28, 2013, among the Borrower, the Transmission Utility and the CAISO, as amended by that certain First Amendment dated October 6, 2013.

Interest Fix Fees” means all costs, fees, expenses and other amounts due and payable by the Borrower under the Interest Rate Agreements (as calculated by the relevant Counterparty), including any costs, fees, expenses or other amounts (including increased interest payments) due and payable in connection with any unwinding, breach or termination of such Interest Rate Agreements as required under such Interest Rate Agreements.

Interest Payment Date” means, (a)  prior to the Term Conversion Date, (i) as to any Base Rate Loan, the last day of each March, June, September and December (or, if an Event of Default is in existence, the last day of each calendar month) to occur while such Loan is outstanding and the final maturity date of such Loan, (ii) as to any LIBOR Loan, the last day of such Interest Period, and (iii) as to any Loan, the date of any repayment or prepayment made in respect thereof (including Term Conversion in respect of Construction Loans) and (b) after the Term Conversion Date, (i) each Repayment Date, and (ii) the date of any repayment or prepayment made in respect of a Loan.

Interest Period” means as to any LIBOR Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such LIBOR Loan and ending one (1), two (2), three (3) or six (6) months thereafter, as selected by the Borrower in its Notice of Borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period (i) commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Loan (if such day occurs prior to the Term Loan Conversion Date) and ending one (1), two (2), three (3) or six (6) months thereafter and (ii) commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Loan (if such day occurs on or after the Term Loan Conversion Date) and ending three (3) or six (6) months thereafter, in the case of either (i) or (ii) as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 10:00 A.M., New York time, on the date that is three (3) Business Days prior to the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:

 
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(i)         if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(ii)        if the Borrower selects an Interest Period with respect to Construction Loans, Term Loans or LC Loans that would extend beyond the Construction Loan Maturity Date, the Term Loan Maturity Date or the applicable LC Loan Maturity Date, such Interest Period will end on the Construction Loan Maturity Date, Term Loan Maturity Date or LC Loan Maturity Date, as applicable;

(iii)       any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month;

(iv)       except as described in item (ii) above, the Borrower shall select Interest Periods so as not to require a payment or prepayment of any LIBOR Loan during an Interest Period for such Loan; and

(v)        the Borrower shall select Interest Periods with respect to Term Loans that will result in Interest Periods that match corresponding interest periods under the Interest Rate Agreements.

Interest Rate Agreement Termination Amount” means, as of any date and with respect to any Interest Rate Agreement that has been terminated, the termination amount due to the applicable Counterparty (as determined in the reasonable good faith judgment of such Counterparty, consistent with the prevailing market practice, under and in accordance with the terms of such Interest Rate Agreement) that remains outstanding on such date.

Interest Rate Agreements” has the meaning given to such term in Section 5.13(a).
 
Interest Rate Hedge Coordinating Agent” means Credit Agricole Corporate and Investment Bank, as coordinating agent for the Interest Rate Hedge Counterparties.

Investment” has the meaning given to such term in Section 6.3.
 
Issuing Banks” means collectively, the Project LC Issuing Banks and the DSR Issuing Banks.
 
Joint Lead Arrangers” means Santander Bank, N.A., Mizuho Bank, Ltd., and Credit Agricole Corporate and Investment Bank in their capacities as joint lead arrangers.

Knowledge” means the actual knowledge of any Responsible Officer or any person listed on Schedule 1.1D.
 
LC Commitment” means, collectively, the Project LC Commitments and the DSR LC Commitments.  The aggregate amount of the LC Commitments on the Closing Date is $59,475,614.74.
 
LC Commitment Termination Date” means the Term Loan Maturity Date.

 
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LC Issuance Notice” means a written request by the Borrower to the Issuing Banks requesting the issuance of a Letter of Credit, substantially in the form of Exhibit G to this Agreement.
 
LC Loan Maturity Date” means with respect to any LC Loan, the earliest of (a) the date that is the third anniversary of the date such LC Loan is made or deemed made, (b) the LC Commitment Termination Date and (c) the date of acceleration of any Loans under Section 7.18(a) or Section 7.18(b)(ii).
 
LC Loans” means the DSR LC Loans and the Project LC Loans.
 
LC Loan Note” has the meaning given to such term in Section 2.15(c).
 
Legal Requirements” means, as to any Person, the certificate of incorporation and by- laws, limited liability company agreement, partnership agreement or other organizational or governing documents of such Person, any law, treaty, rule or regulation, including any Governmental Rule, or determination of an arbitrator or a court or other Governmental Authority, or any requirement under a Permit, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

Lenders” means the banks and other financial institutions or entities party to this Agreement from time to time, other than the Collateral Agent.

Lending Office” means the office designated as such beneath the name of a Lender set forth on Annex 1 of this Agreement or such other office of such Lender as such Lender may specify in writing from time to time to the Administrative Agent and the Borrower.

Letters of Credit” means the DSR Letters of Credit and the Project Letters of Credit.
 
LIBOR Base Rate” means, with respect to each day during each Interest Period pertaining to a LIBOR Loan, the rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period.  In the event that such rate does not appear on such page (or otherwise on such screen), the “LIBOR Base Rate” shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered Dollar deposits at or about 10:00 A.M., New York time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein.

LIBOR Loans” means Loans that bear interest at rates based upon the LIBOR Rate.
 
LIBOR Rate” means, with respect to each day during each Interest Period pertaining to a LIBOR Loan, a rate per annum determined for such day in accordance with the following formula:
 
 
LIBOR Base Rate
 
 
1.00 - LIBOR Reserve Requirements
 
 
 
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“LIBOR Rate Tranche” means the collective reference to LIBOR Loans under a particular Facility with respect to which all then current Interest Periods (i) begin on the same date and (ii) end on the same later date (whether or not such Loans shall originally have been made on the same day).

LIBOR Reserve Requirements” means, for any day as applied to a LIBOR Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the Federal Reserve System.

LIBOR Term Loan” means any LIBOR Loan that is a Term Loan.
 
Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing), whether or not filed, recorded or otherwise perfected or effective under applicable law.

Loan Documents” means this Agreement, the Notes, the Security Documents, the Equity Contribution Documents, the Agent Fee Agreements, the Interest Rate Agreements and any other documents, agreements or instruments entered into in connection with any of the foregoing.

Loan Parties” means, collectively, the Borrower, Holdings, the Equity Investor and the ECA Parent Guarantor.

Loans” means the loans made by the Lenders and the Issuing Banks under this Agreement, including Construction Loans, Term Loans and LC Loans.

Local Deposit Account” means a deposit account to be held by the Borrower with a financial institution reasonably satisfactory to the Administrative Agent and subject to a deposit account control agreement in favor of the Collateral Agent on terms reasonably satisfactory to the Administrative Agent and the Collateral Agent.
 
Loss Proceeds” has the meaning given to such term in Section 1.1 of the Depositary Agreement.
 
Loss Proceeds Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.
 
Major Maintenance Reserve Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

Margin Stock” shall have the meaning assigned to such term in Regulation U.
 
Material Adverse Effect” means a material adverse effect on (a) the business, assets, property, operations, or condition (financial or otherwise) of the Borrower or the Project, (b) the validity, legality, binding effect or enforceability (i) against any Loan Party of this Agreement or any of the other Loan Documents to which it is a party or (ii) of the rights or remedies of the Agents or the Lenders under

 
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this Agreement or any of the other Loan Documents, (c) the validity, perfection or enforceability of the Liens granted under the Loan Documents or (d) the ability of any Loan Party to perform its obligations under any Loan Documents to which it is a party.

Material Project Documents” means the collective reference to (a) the SCE Power Purchase Agreement, (b) the Interconnection Agreement, (c) the Site Lease Agreements, (d) the O&M Agreement, (e) the O&M Parent Guaranty, (f) the EPC Agreement, (g) the EPC Parent Guaranty, (h) the Performance Guaranty Agreement, (i) the Asset Management Agreement, (j) the Districts Mitigation Agreement, (k) the CCSF Mitigation Agreement (when executed), (l) the Interconnection Agreement and (m) any Additional Project Agreements, as of the applicable time of determination, then in force and effect.

Material Project Participants” means the Power Purchaser, CAISO, the Transmission Utility, the Operator, the Operator Parent Guarantor, the EPC Contractor, the EPC Parent Guarantor and the Ground Lessor; provided, however, that any Person shall cease to be a Material Project Participant when all obligations of such Person under all Operative Documents to which it is a party have been indefeasibly performed and/or paid in full or have expired and all warranty periods if applicable have expired.

Minimum Debt Service Coverage Ratios” means a Debt Service Coverage Ratio of at least (i) 1.30:1.00 in each individual semi-annual period assuming P50 Production (as adjusted pursuant to the Term Conversion Date Base Case Model and based on the 19-year amortization schedule reflected therein); and (ii) 1.00:1.00 in each individual semi-annual period assuming P99 Production (as adjusted pursuant to the Term Conversion Date Base Case Model and based on the 19-year amortization schedule reflected therein), in each case, calculated on and following the Closing Date, the Term Conversion Date or the applicable prepayment date pursuant to Section 2.8, as the case may be, until the end of such 19 year period.

Mitigation Agreements” means, collectively, the Districts Mitigation Agreement and the CCSF Mitigation Agreement.

Moodys” means Moody’s Investors Service, Inc.
 
Mortgaged Property” means the Real Property listed on Schedule 4.19(a), as to which the Collateral Agent for the benefit of the Lenders shall be granted a Lien pursuant to the Deed of Trust, and any other property that becomes subject to the Liens of the Deed of Trust pursuant to Section 5.21 (which shall be deemed Mortgaged Property when it so becomes subject thereto).
 
Multiemployer Plan” means a multiemployer plan (as defined in Section 4001(a)(3) of ERISA).
 
1934 Act” means the Securities Exchange Act of 1934, as in effect on the Closing Date.
 
Non-Excluded Taxes” has the meaning given to such term in Section 2.20(a).
 
Nonrecourse Parties” has the meaning given to such term in Section 9.24.
 
Non-U.S. Lender” has the meaning given to such term in Section 2.20(e).
 
Notes” means, collectively, the Construction Loan Notes, the LC Loan Note and the Term Loan Notes, substantially in the form of Exhibit C-1, Exhibit C-2, and Exhibit C-3, as applicable.

 
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Notice of Conversion or Continuation” has the meaning given to such term in Section 2.11.
 
Notice of Term Conversion” has the meaning given to such term in Section 2.5(a).
 
O&M Agreement” means that certain Operation and Maintenance Agreement dated as of October 6, 2014, by and between the Operator and the Borrower.

O&M Parent Guaranty” means the Guaranty dated as of October 6, 2014, made by the Operator Parent Guarantor in favor of the Borrower.
 
Obligations” means the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Agents, the Issuing Banks or to any Lender or Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, Reimbursement Obligations, Breakage Costs, Interest Fix Fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise (whether or not evidenced by any note or instrument and whether or not for the payment of money).

OFAC” means the U.S. Department of Treasury Office of Foreign Assets Control.
 
OFAC SDN List” means the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC.

Operating Cash Flow Available for Debt Service” means, for any period, the excess of (a) Project Revenues over (b) Operating Costs.
 
Operating Costs” means, for any period, the sum, computed without duplication among any of the following categories or from period to period, of the following actual cash operating and maintenance costs:  (a) general and administrative expenses and ordinary course fees, royalties and costs, including those paid to the counterparties to the Site Lease Agreements pursuant to the Site Lease Agreements, plus (b) expenses for operating the Project and maintaining the Project in good repair and operating condition in accordance with Prudent Industry Practices paid during such period, including payments to the counterparties to the Material Project Documents as required pursuant to the Material Project Documents (including (w) capital expenditures incurred in connection with normal maintenance of the Project, (x) capital expenditures required by applicable Legal Requirements or any Applicable Permit and (y) capital expenditures which the Borrower is required to make pursuant to the terms of the Operative Documents (collectively, “Permitted Capex”)), plus (c) management and other fees payable under the O&M Agreement and the Asset Management Agreement, plus (d) insurance costs paid in respect of insurance maintained or required to be maintained in respect of the Project during such period, plus (e) applicable sales and excise taxes (if any) paid or reimbursable by the Borrower during such period, plus (f) franchise taxes paid by the Borrower during such period, plus (g) property taxes paid by the Borrower during such period, plus (h) any other direct taxes (if any) paid by the Borrower during such period, plus (i) costs and fees attendant to the obtaining and maintaining in effect the Permits paid during such period, plus (j) legal, accounting and other professional fees attendant to any of the foregoing items

 
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paid during such period, plus (k) expenses incurred as necessary to prevent or mitigate an emergency situation.  Operating Costs shall exclude, to the extent included above: (i) payments into any of the Collateral Accounts during such period, (ii) payments of any kind with respect to Restricted Payments during such period, (iii) depreciation and other non-cash charges for such period, (iv) payments of any kind with respect to Debt Service, (v) any payments of any kind with respect to any restoration of the Project during such period and (vi) capital expenditures (other than Permitted Capex).

Operative Documents” means the Loan Documents and the Material Project Documents.
 
Operator” means SunPower Corporation, Systems, a Delaware corporation.
 
Operator Parent Guarantor” means SunPower Corporation, in its capacity as guarantor under the O&M Parent Guaranty.

Other Fee Agreements” has the meaning given to such term in Section 3.1(bb).
 
Other Taxes” means any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document.
 
P50 Production” means the production volume based on the P50 one (1) year confidence levels for the Project determined by the Independent Engineer pursuant to the report delivered under Section 3.1(q).
 
P99 Production” means the production volume based on the P99 one (1) year confidence levels for the Project determined by the Independent Engineer pursuant to the report delivered under Section 3.1(q).
 
Participant” has the meaning given to such term in Section 9.7(c).
 
Participant Register” has the meaning given to such term in Section 9.7(c).
 
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), Pub. L. 107-56 and all other United States laws and regulations relating to money-laundering and terrorist activities.

PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

Pension Plan” means  any ERISA Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such ERISA Plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Performance Guaranty Agreement” means that certain Performance Guaranty Agreement, dated as of October 6, 2014, between the Borrower and the Operator.

Performance Liquidated Damages” has the meaning given to such term in the Depositary Agreement.

 
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Permit” means 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 or provided to a Governmental Authority under any Legal Requirement.

Permitted Affiliate Subordinated Indebtedness” means Indebtedness of the Borrower to the Equity Investor or any Affiliate of the Equity Investor that (a) is unsecured, (b) is fully and completely subordinated (and collaterally assigned) for the benefit of, and to, the Lenders pursuant to a subordination and security agreement, which shall, in each case, be in form and substance satisfactory to the Required Lenders, (c) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal or mandatory redemption obligations prior to, the date that is one (1) year after the Term Loan Maturity Date and (d) provides for payments of interest solely in-kind (and not in cash) until the date that is one (1) year after the Term Loan Maturity Date.

Permitted Indebtedness” means:
 
(a)        Indebtedness under or in respect of the Loan Documents;
 
(b)        obligations incurred under the Material Project Documents;
 
(c)        trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of the Borrower’s business operation so long as such trade accounts are not more than ninety (90) days past due;

(d)        purchase money or Capital Lease Obligations to the extent incurred in the ordinary course of business to finance items of equipment not comprising an integral part of the Project; provided that (A) if such obligations are secured, they are secured only by Liens upon the equipment being financed and (B) the aggregate principal amount and the capitalized portion of such obligations do not at any time exceed $1,500,000;

(e)        the Deferred Development Fee;

(f)         Permitted Affiliate Subordinated Indebtedness not to exceed $10,000,000 in the aggregate; and
 
(g)        other unsecured Indebtedness not to exceed in the aggregate $250,000.
 
Permitted Investments” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six (6) months or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000 and rated at least A by S&P or A2 by Moody’s; (c) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government; (d) securities with maturities of one (1) year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth, or territory, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s; (e) securities with maturities of six (6)

 
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months or less from the date acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition; (f) money market, mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (e) of this definition; or (g) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

Permitted Liens” means:
 
(a)        the Liens created pursuant to the Security Documents;

(b)        Liens imposed by any Governmental Authority for any tax, assessment or other charge to the extent not yet past due or being contested in good faith and by appropriate proceedings, so long as (a) reserves consistent with GAAP have been established on the Borrower’s books in an amount sufficient to pay any such taxes, assessments or other charges, accrued interest thereon and potential penalties or other costs relating thereto, or other provision for the payment thereof reasonably satisfactory to the Administrative Agent shall have been made bonded, (b) enforcement of the contested tax, assessment or other charge is effectively stayed for the entire duration of such contest and (c) any tax, assessment or other charge determined to be due, together with any interest or penalties thereon, is immediately paid after resolution of such contest;
 
(c)        materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like Liens arising in the ordinary course of business or in the restoration, repair or replacement of the Project in accordance with this Agreement or, prior to Final Completion, in connection with the construction of the Project, in each case for amounts not yet due or which are being contested in good faith by appropriate proceedings and which have been bonded in an amount sufficient to repay the underlying obligations and cover any penalties and enforcement costs with respect thereto or in respect of which adequate cash reserves are in place in form and substance reasonably acceptable to the Administrative Agent;

(d)        Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP, bonds or other security acceptable to the Administrative Agent in its reasonable discretion have been provided or are fully covered by insurance;

(e)        Liens, deposits or pledges to secure (i) performance of bids, tenders, Borrower’s obligations under the Material Project Documents (other than for the repayment of borrowed money) or leases, or for purposes of like general nature in the ordinary course of its business, not to exceed $500,000 in the aggregate at any time, and with any such Lien to be released within 270 days of its attachment or (ii) mandatory statutory obligations;

(f)        Liens incurred in connection with Indebtedness permitted under clause (d) of the definition of “Permitted Indebtedness”;  provided that no such Lien shall extend to cover any property other than the property or equipment being financed;

(g)       the exceptions to title listed on Schedule B of the Title Policy;

(h)       encumbrances created in connection with any Safe Harbor Agreement (but only if such encumbrance was created in the course of incidental take authorizations pursuant to the Federal Endangered Species Act, such as onsite conservation easements);

 
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(i)         easements, rights of way restrictions, title imperfections, encroachments, minor defects or irregularities in title and similar matters, in each case, that, in the aggregate, are not substantial in amount and do not or would not reasonably be expected to materially detract from the value of the Project or materially impair the construction or use of the Project;

(j)         liens not incurred in connection with the incurrence of Indebtedness, in an amount not in excess of $250,000; and

(k)        zoning and other land use and environmental Governmental Rules of any municipality or Governmental Authority that do not secure any monetary obligations and which do not materially interfere with the use of any asset in the conduct of the business of the Borrower or the construction, development, operation or maintenance of the Project or materially detract from the value of the Project;

(l)         Liens expressly permitted or expressly contemplated by the Loan Documents; and
 
(m)       Liens created by or pursuant to the Stockton Terminal Conservation Easement.
 
Permitted Tax Equity Investor” means an entity that (a) has provided all documentation and information requested by the Administrative Agent and the Lenders that is necessary (including names and addresses of such Person) for the Administrative Agent and the Lenders to identify such Person in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder) and otherwise complete their review to their satisfaction; (b) is not currently involved in any pending or threatened litigation with any of the Lenders and (c) is rated at least BBB- by S&P and at least Baa3 by Moody’s (or whose obligations under the tax equity investment documents are guaranteed by an Affiliate with such ratings pursuant to a guarantee applicable in form and substance reasonably satisfactory to the Administrative Agent), and in the case of entities rated BBB- by S&P or Baa3 by Moody’s, not on “negative watch”.

Permitted Transferee” means a Person that:
 
(a)        (i) has owned or operated for a period of at least two years at least 200 MW of renewable energy assets, including at least 50 MW of solar energy assets (or is a direct or indirect subsidiary of a Person that meets such requirement); and (ii) (A) has a long-term senior unsecured debt rating of at least BBB+ by S&P or Baa1 by Moody’s) (or BBB- by S&P or Baa3 by Moody’s if such Person is a major United States regulated public utility company providing retail electric utility service in the reasonable determination of the Required Lenders) (or is a direct or indirect subsidiary of a Person that meets such requirement) or (B) has a consolidated net worth of $100,000,000 or (or is a direct or indirect subsidiary of a Person that meets such requirements); or

(b)        is an entity formed by SunPower Corporation or one of its wholly-owned Subsidiaries which (x) is wholly or partially owned, directly or indirectly, by SunPower Corporation, (y) intends to issue shares to the public in a securities offering, and (z) intends to acquire, among other assets, projects owned by SunPower Corporation or its Affiliates.

Person” means any natural person, corporation, limited liability company, partnership, firm, association, Governmental Authority or any other entity whether acting in an individual, fiduciary or other capacity.

Plans and Specifications” means the plans and specifications for the construction and design of the Project, including any document describing the scope of work performed by any contractor under the EPC Agreement and/or any other material contract or subcontract for the construction of the

 
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Project and any feeder lines and interconnections, all work drawings, engineering and construction schedules, Project schedules, Project monitoring systems, specifications status lists, material and procurement ledgers, drawings and drawing lists, manpower allocation documents, management and Project procedures documents, Project design criteria, and any other document referred to in the relevant Material Project Documents or any of the documents referred to in this definition, as the same may be amended to the extent permitted by this Agreement.

Pledge Agreement” means the Pledge Agreement, dated as of the Closing Date, executed and delivered by Holdings, substantially in the form of Exhibit J to this Agreement.
 
Pledged Stock” has the meaning given to such term in the Pledge Agreement.
 
Potential Wetlands Area” has the meaning given to such term in the ECA Parent Guaranty.

Power Purchaser” means Southern California Edison Company, a California corporation.
 
Prepayment Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.
 
Prime Rate” means the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York, New York (the Prime Rate not being intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors).

Power Blocks” has the meaning given to such term in the definition of “Project”.
 
PPA Issuing Bank” means Mizuho Bank, Ltd. in its capacity as issuing bank of the PPA Development Letter of Credit and the PPA Performance Letter of Credit.

PPA Development Letter of Credit” means an irrevocable standby letter of credit acceptable in form and substance to the PPA Issuing Bank and the Administrative Agent that is issued pursuant to Section 3.06 of the SCE Power Purchase Agreement for the account of the Borrower in favor of the Power Purchaser by the PPA Issuing Bank, and in the maximum stated amount provided in Section 2.16(a)(i)(C) but in any event not to exceed the Project LC Commitment of the PPA Issuing Bank.
 
PPA Performance Letter of Credit” means an irrevocable standby letter of credit acceptable in form and substance to the PPA Issuing Bank and the Administrative Agent that is issued pursuant to Section 8.02(a) of the SCE Power Purchase Agreement for the account of the Borrower in favor of the Power Purchaser by the PPA Issuing Bank, and in the maximum stated amount provided in Section 2.16(a)(i)(D) but in any event not to exceed the Project LC Commitment of the PPA Issuing Bank.

Prohibited Transaction” has the meaning given to such term in Section 406 of ERISA and Section 4975(f)(3) of the Code.

Project” means the 108 Megawatt nameplate capacity solar power project, consisting of 74 of SunPower Corporation’s proprietary Oasis power blocks (68 blocks at 1.5 MWac capacity and 6 blocks at 1 MWac capacity) (the “Power Blocks”), which will be located in Merced County, California, together with all buildings, structures or improvements erected on the Mortgaged Property, all alterations

 
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thereto or replacements thereof, all fixtures, attachments, appliances, equipment, machinery and other articles attached thereto or used in connection therewith and all parts which may from time to time be incorporated or installed in or attached thereto, all contracts related thereto, all leases of real or personal property related thereto, all other real and tangible and intangible personal property owned by the Borrower and placed upon the Mortgaged Property (or used in connection with the Power Blocks located thereon), the Mortgaged Property, the Permits required in connection with (or otherwise related to) the Project, any electrical interconnections and, to the extent not included in the foregoing, all Collateral.

Project Costs” means (a) the cost of developing, designing, engineering, equipping, procuring, constructing, starting up, commissioning, acquiring and testing the Project, including the cost of all labor, services, materials, supplies, equipment, tools, transportation, supervision, storage, training, balance of plant contingency, demolition, site preparation, civil works, and remediation in connection therewith, (b) the cost to the Borrower of constructing the switching station and feeder lines and substation interconnecting the Project to the applicable transmission system and interconnecting and synchronizing the Project to such system, including the costs incurred by the “Interconnection Customer” under the Interconnection Agreement for the “Interconnection Customer’s Interconnection Facilities”, the “Participating TO’s Interconnection Facilities”, the “Network Upgrades” and the “Distribution Upgrades” (each as defined in the Interconnection Agreement) (c) the cost of acquiring and using any lease, easement and any other necessary interest in the Project Site, (d) real and personal property taxes, ad valorem taxes, sales, use and excise taxes and insurance (including title insurance) premiums payable with respect to the Project during the period prior to the Term Conversion Date (the “Construction Period”), (e) interest payable on any Loans and financing-related fees and costs during the Construction Period (including any and all fees, interest and other amounts payable by the Borrower under this Agreement and Interest Rate Agreements), (f)  the costs of acquiring Permits for the Project during the Construction Period, (g) all Operating Costs and all general and administrative costs of the Borrower, in each case attributable to the Project during the Construction Period and in accordance with the Construction Budget and Schedule, including the permitted variances thereto, (h) the cost of establishing a spare parts inventory for the Project (if any), (i) the costs of funding the Construction Account for the purpose of making the payments, applications and distributions pursuant to Section 3.1(b)(ii) of the Depositary Agreement prior to the Term Conversion Date, (j) other fees (but only fees payable to third parties) and expenses relating to the construction, acquisition and closing of financing of the Project, including financial, legal and consulting fees, costs and expenses in accordance with the Construction Budget and Schedule, including the permitted variances thereto and (k) the Reimbursable Development Costs; provided that Project Costs shall not include the Deferred Development Fee and the Closing Date Equity Contribution; provided, however, that the total aggregate amount of such Project Costs shall not exceed $457,345,603.00 as set forth in respect of the Project Costs in the Construction Budget and Schedule, including the permitted variances thereto, unless such excess is funded with additional equity contributions from one or more Affiliates of the Borrower .

Project LC Commitment” means the commitment of each Project LC Issuing Bank to issue and continue to make available a Project Letter of Credit and make Project LC Loans to the Borrower in respect of its Project Letter of Credit, in an aggregate stated or principal amount not to exceed the amount, expressed as a Dollar amount, set forth under the heading “Project LC Commitment” opposite such Issuing Bank’s name on Schedule 1.1A.  The aggregate amount of the Project LC Commitments of all Project LC Issuing Banks on the Closing Date shall be $41,986,782.15.

Project LC Issuing Banks” means (a) the Decommissioning Issuing Bank and the PPA Issuing Bank, in their respective capacities as issuing bank of the applicable Project Letters of Credit and (b) each other Lender so designated by the Borrower with the written consent of such Lender in accordance with Section 2.16(o), in each case, in its capacity as an issuer of a Project Letter of Credit.

 
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Project LC Loans” means any loan made to the Borrower by any Project LC Issuing Bank as a result of a Drawing on a Project Letter of Credit issued by such Issuing Bank as set forth in Section 2.16(e).
 
Project Letters of Credit” means the Decommissioning Letter of Credit, the PPA Development Letter of Credit and the PPA Performance Letter of Credit.

Project Revenues” means all income and cash revenues received by the Borrower from the ownership or operation of the Project, including (a) any payments due to the Borrower under the SCE Power Purchase Agreement and all other income derived from the sale or use of electric energy, capacity and ancillary services generated by the Project, (b) all interest earned on Permitted Investments held in the Collateral Accounts, (c) payments due to the Borrower (or refunds received by the Borrower) under any Material Project Document (including any proceeds from renewable resource credit sales, liquidated damages (excluding Delay Liquidated Damages and Performance Liquidated Damages) and warranty payments due to the Borrower under any Material Project Document and any reimbursement of costs provided for under the Interconnection Agreement), (d) Loss Proceeds of any business interruption, delay in startup or other similar insurance maintained by or on behalf of Borrower and (e) all other operating income, however earned or received, by the Borrower during such period, provided that Project Revenues shall not include (i) any funds of the Borrower, whether contributed to the Borrower by Holdings or an Affiliate thereof or any other Person, (ii) the proceeds of the Loans and (iii) Loss Proceeds (other than proceeds of any business interruption, delay in startup or other similar insurance as set forth above).

Project Site” means the Real Property located in Merced County, California on which the Project will be located, which includes, among other things, the real property estates created by the Site Lease Agreements.
 
Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

Proportionate Share” means, with respect to any Facility, and with respect to any Lender under such Facility, the proportion that such Lender’s Commitment with respect to such Facility then constitutes of the total Commitments with respect to such Facility (or, at any time after the Commitments with respect to such Facility shall have expired or terminated, the proportion which the aggregate principal amount of such Lender’s outstanding Loans with respect to such Facility constitutes of the aggregate outstanding principal amount of the Loans with respect to such Facility).

Prudent Industry Practices” means, with respect to any Person, those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by solar power generation facilities in the United States of America of a type and size similar to the Project, as good, safe and prudent practices in connection with operation, maintenance, repair, improvement and use of electrical and other equipment, facilities and improvements of such solar power generation facilities, with commensurate standards of safety, performance, dependability, efficiency and economy.  Prudent Industry Practices does not necessarily mean one particular practice, method, equipment specification or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.

PUHCA 2005” means the Public Utility Holding Company Act of 2005.
 
Real Property” means all right, title and interest of the Borrower in and to any and all parcels of real property owned, leased or operated by the Borrower together with all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental to

 
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the ownership, lease or operation thereof, including the real property estates created by the Site Lease Agreements.
 
Register” has the meaning given to such term in Section 9.7(b)(iv).
 
Regulation D, H, T, U or X” means Regulation D, H, T, U or X of the Board as in effect from time to time.

Reimbursement Obligation” means the Borrower’s obligation to repay Drawings under the Letters of Credit as provided in Sections 2.16(e) and (f).
 
Reimbursable Development Costs” means the positive difference if any between any development costs incurred by the Borrower or any Affiliate of the Borrower prior to the Closing Date and the Closing Date Equity Contribution in an amount equal to $5,877,365.15, as certified by the Independent Engineer.

Release” means any placing, spilling, leaking, seepage, migration, intrusion, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or depositing into or onto the indoor or outdoor Environment.
 
Repayment Date” means the First Repayment Date and each six (6) month anniversary thereof.
 
Reorganization” means with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty (30) day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043, with respect to a Pension Plan.

Required DSCR” means, with respect to the applicable period covered at the time of calculation, a Debt Service Coverage Ratio of 1.20:1.00.
 
Required Lenders” means at any time (a) prior to the Term Conversion Date, the holders of more than 50% of the sum of (i) the aggregate unpaid principal amount of the Construction Loans then outstanding and (ii) the aggregate unused amount of the Commitments (other than the Term Loan Commitments) then in effect and (b) on or after the Term Conversion Date, the holders of more than 50% of the sum of (i) the aggregate unpaid principal amount of the Term Loans and LC Loans then outstanding and (ii) the aggregate unused amount of the Commitments (other than the Construction Loan Commitments) then in effect.
 
Required Secured Parties” means, at any time, the holders of more than 50% of the sum of:
 
(1)           (a) prior to the Term Conversion Date, the sum of (i) the aggregate unpaid principal amount of the Construction Loans then outstanding and (ii) the aggregate unused amount of the Commitments (other than the Term Loan Commitments) then in effect and (b) on or after the Term Conversion Date, the sum of (i) the aggregate unpaid principal amount of the Term Loans and LC Loans then outstanding and (ii) the aggregate unused amount of the Commitments (other than the Construction Loan Commitments); and

 
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(2)           the aggregate of the Interest Rate Agreement Termination Amounts of the Interest Rate Agreements.

Responsible Officer” means a manager, the president, a vice president or the secretary of the Borrower, but in any event, with respect to financial matters, a manager of the Borrower.

Restricted Payment” has the meaning given to such term in Section 6.7.
 
Revenue Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.
 
SCE Power Purchase Agreement” means the Renewable Energy Power Purchase and Sale Agreement, dated as of January 11, 2011, between the Power Purchaser and the Borrower , as amended by that certain Amendment No. 1 to Renewable Power Purchase and Sale Agreement, dated as of February 15, 2011, that certain Amendment No. 2 to Renewable Power Purchase and Sale Agreement, dated as of September 4, 2014 and as updated by that certain letter from Project Company to SCE dated as of June 18, 2013, acknowledged by SCE on June 28, 2013 and that certain Amendment No. 3 to Renewable Power Purchase and Sale Agreement, dated as of October 17, 2014.

Scheduled Repayment Amount” means the repayment amounts corresponding to each Repayment Date, as identified in the Amortization Schedule.

Second Interconnection Agreement Amendment” means an amendment to the Interconnection Agreement substantially in the form of attached Exhibit O.

Secured Parties” means the Agents, the Issuing Banks, the Lenders, the Depositary Bank and any Counterparty to an Interest Rate Agreement.

Security Agreement” means the Security Agreement, dated as of the Closing Date, by and between Borrower and the Collateral Agent (for the benefit of the Secured Parties), substantially in the form of Exhibit K to this Agreement.
 
Security Documents” means the Deed of Trust, the Security Agreement, the Pledge Agreement, the Depositary Agreement, the Consents and any other security documents, financing statements and the other instruments filed or recorded in connection with the foregoing.

Site Lease” means the Lease Agreement between the Borrower and the Ground Lessor dated June 17, 2014, as amended by the First Amendment, dated October 3, 2014.

SLTP Project” means the San Luis Transmission Project proposed by the Western Area Power Administration for the development of a new 230-kilovolt transmission line approximately 62 miles in length between Western’s Tracy Substation and Western’s San Luis Substation and a new 70-kV transmission line about 5 miles in length between the San Luis and O’Neill Substations.
 
Site Lease Agreements” has the meaning given to such term in Section 4.19(e).
 
Solar Resource Consultant” means AWS Truepower, or any successor appointed pursuant to Section 9.9.
 
Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of

 
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such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
 
S&P” means Standard and Poor’s Rating Services.
 
Sponsor” means SunPower AssetCo, LLC, a Delaware limited liability company.
 
Sponsor Member” has the meaning given to such term in Section 6.22(a).

Stockton Terminal Conservation Easement” means has the meaning set forth in the Site Lease.
 
Subject Persons” has the meaning given to such term in Section 7.5.
 
Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.

Substantial Completion” has the meaning given to such term in the EPC Agreement.
 
Substantial Completion Date” means the date when Substantial Completion occurs.
 
SunPower Corporation” means SunPower Corporation, a Delaware corporation.
 
Swap Agreement” means 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; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower shall be a “Swap Agreement”.
 
Syndication Agent” has the meaning given to such term in the preamble to this Agreement.

Tax Equity JV” has the meaning given to such term in Section 6.22(a).
 
Tax Equity Investor” has the meaning given to such term in Section 6.22(a).
 
 
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Taxes” has the meaning given to such term in Section 2.20(a).
 
Term Conversion” means the satisfaction (or waiver by Administrative Agent (with the consent of the Required Lenders)) of the conditions set forth in Section 3.4.
 
Term Conversion Date” means the date of Term Conversion.
 
Term Conversion Date Base Case Model” means the revised Closing Date Base Case Model prepared by the Borrower as of the Term Conversion Date pursuant to Section 3.4(m).
 
Term Convert” is the verb form of “Term Conversion.”
 
Term Loan” has the meaning given to such term in Section 2.3(a).
 
Term Loan Commitments” means, with respect to any Lender, the commitment of such Lender, if any, to make Term Loans in an aggregate principal amount not to exceed the amount, expressed as a Dollar amount, set forth under the heading “Term Loan Commitment” opposite such Lender’s name on Schedule 1.1A, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Term Loan Commitment, as applicable, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender under Section 9.7.  The aggregate amount of the Term Loan Commitments on the Closing Date is $317,973,487.16.
 
Term Loan Maturity Date” means the earliest of (a) the seventh anniversary of the Term Conversion Date or (b) the date of acceleration of any  Loans under Section 7.18(a)  or Section 7.18(b)(ii).
 
Term Loan Resizing Prepayment Amount” has the meaning given to such term in Section 2.4(c).
 
Term Loan Notes” has the meaning given to such term in Section 2.15(b).
 
Title Company” means First American Title Insurance Company.
 
Title Policy” means that certain policy of extended coverage ALTA mortgagee’s title insurance (2006 form) issued by the Title Company dated as of the Closing Date in an amount at least equal to the Commitments, including all amendments thereto, endorsements thereof and substitutions or replacements therefor.

Transferee”  any Assignee or Participant.
 
Transmission Consultant” means MRW & Associates, or any successor appointed pursuant to Section 9.9.
 
Transmission Utility” means Pacific Gas & Electric Company, a California corporation.
 
Type” means LIBOR Loans or Base Rate Loans, as applicable, each of which constitutes a Type of Loan.
 
UCC” means the Uniform Commercial Code as in effect in the applicable state of jurisdiction.
 
U.S. Lender” has the meaning given to such term in Section 2.20(e).

 
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Withdrawal Liability” means any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.

1.2        Rules of Interpretation.  Except as otherwise expressly provided, the following rules of interpretation shall apply to this Agreement and the other Loan Documents:

(a)        The singular includes the plural and the plural includes the singular.

(b)        The word “or” is not exclusive.  Thus, if a party “may do (a) or (b)”, then the party may do either or both.  The party is not limited to a mutually exclusive choice between the two alternatives.

(c)        A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule, and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule.

(d)        A reference to a Person includes its successors and permitted assigns.

(e)        Accounting terms have the meanings given to them by GAAP, as applied by the accounting entity to which they refer.  For purposes of determining compliance with any financial covenants contained in this Agreement, any election by the Borrower to measure an item of Indebtedness using fair value (as permitted by Statement of Financial Accounting Standards No. 159 or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.

(f)        The words “include,” “includes” and “including” are not limiting.

(g)        A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated.  Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document.

(h)        References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) means such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in effect at any given time.

(i)        The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

(j)        References to “days” means calendar days, unless the term “Business Days” shall be used.  References to a time of day means such time in Los Angeles, California, unless otherwise specified.  If the Borrower or any Affiliate of the Borrower is required to perform an action, deliver a document or take such other action by a calendar day and such day is not a Business Day, then the Borrower or such Affiliate shall take such action by the next succeeding “Business Day”.

(k)        The Loan Documents are the result of negotiations between, and have been reviewed by the Borrower, the Agents, the Issuing Banks, the Depositary Bank and each Lender and their respective counsel.  Accordingly, the Loan Documents shall be deemed to be the product of all parties thereto, and

 
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no ambiguity shall be construed in favor of or against Borrower, the Agents, the Issuing Banks, the Depositary Bank or any Lender.

ARTICLE 2.

THE CREDIT FACILITIES
 
2.1           Construction Loan Commitments.  Subject to the terms and conditions hereof, each Lender severally agrees to make loans to the Borrower (such loans individually, a “Construction Loan” and collectively, the “Construction Loans”) from time to time during the Construction Loan Availability Period, but not more often than three times in a calendar month (except for Borrowings of Construction Loans made solely with respect to the payment of the interest under Section 2.13 and the fees under Section 2.6), in an aggregate principal amount that will not result in such Lender’s Construction Loans exceeding such Lender’s Construction Loan Commitment.  Each Lender’s remaining Construction Loan Commitment shall be reduced to zero on the earlier of (i) the last Business Day of the Construction Loan Availability Period and (ii) the Construction Loan Maturity Date.  The Construction Loans may from time to time be LIBOR Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.11.
 
2.2           Procedures for Construction Loan Borrowing and Repayment of Construction Loans.
 
(a)           Procedures for Construction Loan Borrowing. The Borrower may borrow under the Construction Loan Commitments during the Construction Loan Availability Period on any Business Day (subject to the limitations in Section 2.1) provided that the Borrower shall give the Administrative Agent an irrevocable appropriately completed written notice in the form of Exhibit A-1 (a “Construction Loan Notice of Borrowing”), as applicable, which notice must be received by the Administrative Agent prior to 10:00 A.M., New York time, (a) three (3) Business Days prior to the requested Borrowing date, in the case of LIBOR Loans, or (b) one (1) Business Day prior to the requested Borrowing date, in the case of Base Rate Loans), specifying, among other things: (a) the amount of the requested Borrowing, which shall be in the minimum amount of $1,000,000 (except for the amount made on the Borrower’s final requested Borrowing) and in whole multiples of $500,000 in excess thereof; (b) the date of the requested Borrowing, which shall be a Business Day, and whether such Borrowing shall consist of Base Rate Loans and/or LIBOR Loans; and (c) in the case of LIBOR Loans, the initial Interest Period(s) selected by the Borrower.  The Construction Loans made on the Closing Date shall be Base Rate Loans.  If the Borrower elects a LIBOR Loan and changes the date of a Borrowing by 10:00 A.M. New York time within three (3) Business Days of the date of such Borrowing, the Borrower shall reimburse the Lenders for Breakage Costs, if any, incurred as a result thereof in accordance with Section 2.21.  The Administrative Agent shall promptly, and in any event within two (2) Business Days prior to the requested Borrowing date in the case of LIBOR Loans, notify each Lender of the contents of such notice.
 
(b)           Repayment of Construction Loans.  The Borrower shall repay to the Lenders on the Construction Loan Maturity Date all outstanding Construction Loans that have not been Term Converted to Term Loans in accordance with Section 2.3(a) and Section 2.4.
 
2.3           Term Loans and LC Commitments.
 
(a)           Term Loans.  Subject to the terms and conditions hereof, each Lender severally agrees to make to the Borrower on the Term Conversion Date only such Loans as the Borrower may request under Section 2.5 (individually, a “Term Loan” and, collectively, the “Term Loans”), in an aggregate principal amount not to exceed such Lender’s Term Loan Commitment.  Each Lender shall make its Term Loan by converting to a Term Loan the unpaid principal amount of its Construction Loans then outstanding, in an

 
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amount not to exceed its available Term Loan Commitment.  Each Lender’s Term Loan Commitment shall be irrevocably terminated upon the making of such Term Loan by such Lender.  Unless terminated on or before such date in connection with Term Conversion, the Term Loan Commitments shall terminate at 5:00 p.m. (New York time) on the Date Certain.  Subject to Sections 2.11 and 2.18, the Term Loans shall be LIBOR Loans.

(b)           LC Loans.  Subject to the terms and conditions hereof, (a) each DSR Issuing Bank agrees to make DSR LC Loans to the Borrower in respect of the DSR Letter of Credit issued by it in an aggregate principal amount at any one time outstanding which does not exceed an amount equal to the DSR LC Commitment of such DSR LC Issuing Bank (less the Available Amount with respect to, and any unreimbursed Drawings under, such DSR Letters of Credit issued by such DSR LC Issuing Bank), and (b) each Project LC Issuing Bank agrees to make Project LC Loans to the Borrower in respect of the Project Letters of Credit issued by it in an aggregate principal amount at any one time outstanding which does not exceed an amount equal to the Project LC Commitment of such Project LC Issuing Bank (less the Available Amount with respect to, and any unreimbursed Drawings under, such Project Letters of Credit issued by such Project LC Issuing Bank), in each case deemed made in accordance with Section 2.16(e).  Each Issuing Bank’s LC Commitments shall be reduced to zero on the LC Commitment Termination Date.

2.4           Term Loan Conversion.
 
(a)           The Borrower shall request the Term Loans by delivering to the Administrative Agent a written notice in the form of Exhibit A-2 (the “Notice of Term Conversion”), which shall include: (i) the aggregate principal amount of the requested Term Loans (calculated in accordance with paragraphs (b) and (c) below); (ii) the proposed Term Conversion Date, which shall be a Business Day; and (iii) the initial Interest Period(s) applicable thereto.  The Borrower shall give the Notice of Term Conversion to the Administrative Agent by 10:00 A.M. New York time at least seven (7) Business Days before the proposed Term Conversion Date; provided, however, that the Borrower may not provide a Notice of Term Conversion more than thirty (30) Business Days prior to the proposed Term Conversion Date.  The Borrower may not, at any one time, deliver more than one Notice of Term Conversion with respect to Construction Loans; provided, however that the Borrower may retract a previously provided Notice of Term Conversion at any time, but in no event less than three (3) Business Days prior to the proposed Term Conversion Date, and resubmit at a later date a new Notice of Term Conversion in accordance with this Section 2.4(a) as long as the giving or retraction of the Notice of Term Conversion by the Borrower is in good faith and the Borrower has exercised commercially reasonable efforts to achieve the Term Conversion Date.

(b)           On the Term Conversion Date the Administrative Agent shall determine (i) the aggregate principal amount of the Construction Loans that are outstanding as of the Term Conversion Date before giving effect to the prepayment of the Construction Loans in accordance with Section 2.4(c) and (ii) the maximum principal amount of Term Loans that allows the Borrower to maintain the Minimum Debt Service Coverage Ratios in accordance with the Term Conversion Date Base Case Model delivered to Administrative Agent pursuant to Section 3.4(m).  Such maximum principal amount of Term Loans shall be determined by the Administrative Agent (acting at the direction of, or with the consent of, the Required Lenders, which direction or consent will not be unreasonably withheld, conditioned or delayed) using the Term Conversion Date Base Case Model updated to reflect the final capacity of the Project, the date that COD occurred and any other technical information that is known or becomes known and that is relevant for, and has a material impact on, the operation of the Project, as reasonably requested by the Required Lenders.

 
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(c)           If the amount set forth in clause (ii) of Section 2.4(b) is less than the amount set forth in clause (i) of Section 2.4(b) (such deficiency amount, the “Term Loan Resizing Prepayment Amount”), the Borrower shall prepay on the Term Conversion Date the Construction Loans in an amount equal to the Term Loan Resizing Prepayment Amount.
 
(d)           If the conditions to Term Conversion set forth herein have been met, including the conditions precedent set forth in Section 3.4 (or waived in accordance with the terms hereof), and if the Borrower has not retracted the Notice of Term Conversion, then, on the Term Conversion Date specified in the Notice of Term Conversion, all Construction Loans being Term Converted shall be deemed repaid and the Construction Lenders shall be deemed to have made Term Loans to the Borrower, in each case in an amount equal to the amount of the Construction Loans deemed paid off.
 
2.5           Repayment of Term Loans and LC Loans.
 
(a)           The Borrower shall repay (i) a principal amount of the Term Loans on each Repayment Date in an amount equal to the Scheduled Repayment Amount and (ii) all outstanding Term Loans on the Term Loan Maturity Date.
 
(b)           The Borrower shall repay all outstanding LC Loans on the LC Loan Maturity Date of such LC Loan.
 
2.6           Fees.
 
(a)           Agent Fees.
 
(i)           On the Closing Date, the Borrower shall pay to the Administrative Agent (for the benefit of the applicable parties to each Agent Fee Agreement and each Other Fee Agreement) the up-front, arranging, participation and structuring fees, in each such case, in the amount set forth in each Agent Fee Agreement and each Other Fee Agreement.  Such fees may be paid out of the proceeds of the Construction Loans.

(ii)           The Borrower shall pay to the Administrative Agent on the Closing Date and on each other date as specified in the Agent Fee Agreement entered into by and between the Administrative Agent and the Borrower, solely for the account of Administrative Agent, an agency fee payable at the times and in the amounts set forth in such Agent Fee Agreement.

(iii)           The Borrower shall pay to Depositary Bank and the Collateral Agent on the Closing Date and on each other date specified in the Agent Fee Agreement entered into by and between the Collateral Agent, the Depositary Bank and the Borrower, solely for the account of Depositary Bank and the Collateral Agent, as applicable, the fees payable at the times and in the amounts set forth in such Agent Fee Agreement.
 
(b)           Loan Commitment Fees.  The Borrower shall pay to the Administrative Agent for the account of each Lender a commitment fee for  the period from and including the date hereof to the last day of the Construction Loan Availability Period, computed at the Commitment Fee Rate on the unused amount of the Construction Loan Commitment of such Lender for each day during the period for which payment is made, payable in arrears on each Fee Payment Date during the Construction Loan Availability Period and on the Construction Loan Maturity Date (or, if the Construction Loan Commitments are cancelled or expire prior to such date, on the date of such cancellation or expiration).

 
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(c)        Letter of Credit Commitment Fees.  The Borrower shall pay to the Administrative Agent, for the account of each Issuing Bank, a letter of credit commitment fee for the period from and including the date hereof until the LC Commitment Termination Date, computed at the Commitment Fee Rate on the unused amount of the LC Commitment of such Issuing Bank during the period for which payment is made, payable in arrears on each Fee Payment Date during such period and on the LC Commitment Termination Date (or, if the LC Commitment of the Issuing Banks are cancelled or expires prior to such date, on the date of such cancellation or expiration).

(d)        Other Letter of Credit Fees.  The Borrower shall pay in arrears to the Administrative Agent, for the account of each Issuing Bank, on each Fee Payment Date occurring during the period from and including the date of issuance of each Letter of Credit issued by such Issuing Bank to the LC Commitment Termination Date, a letters of credit fee on the daily aggregate Available Amount with respect to such Letter of Credit outstanding during the period for which payment is made at a rate per annum equal to the Applicable Margin in effect for LIBOR Loans effective for each day in such period.

2.7        Optional Prepayments.  Subject to Section 2.9, the Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty (except for any Breakage Costs or Interest Fix Fees, as applicable), upon irrevocable notice delivered to the Administrative Agent no later than 10:00 A.M., New York time, three (3) Business Days prior thereto, in the case of LIBOR Loans, and no later than 10:00 A.M., New York time, one (1) Business Day prior thereto, in the case of Base Rate Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of LIBOR Loans or Base Rate Loans and the amount of the estimated Interest Fix Fees, which shall be calculated by the Counterparties in consultation with the Borrower (in accordance with the Interest Rate Agreements described in Section 5.13) due in connection with such optional prepayment, if applicable (calculated as if the date of such notice were the date of the optional prepayment) setting forth the details of such computation.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.  If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid.  Partial prepayments of Loans shall be in an aggregate principal amount of $500,000 or a whole multiple thereof.
 
2.8        Mandatory Prepayments.  The Borrower shall make the following mandatory prepayments, without premium or penalty (except for any Breakage Costs or Interest Fix Fees, as applicable).

(a)        The Borrower shall apply all funds disbursed from the Distribution Reserve Account to the extent provided in Section 3.10(b)(i) of the Depositary Agreement, promptly upon receipt thereof, to the prepayment of the Term Loans in accordance with Section 2.9;
 
(b)        [Reserved]
 
(c)        [Reserved]
 
(d)        [Reserved]
 
(e)        Except as otherwise provided in Section 3.9(b) of the Depositary Agreement, the Borrower shall apply all  funds disbursed from the Prepayment Account pursuant to Section 3.9(b) of the Depositary Agreement, promptly upon receipt thereof, to the prepayment of the Loans, in accordance with Section 2.9;

 
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(f)           The Borrower shall apply all amounts disbursed from the Revenue Account pursuant to Section 3.2(c)(v) of the Depositary Agreement, promptly upon receipt thereof, to the prepayment of LC Loans in accordance with Section 2.9 (and, if such disbursed amount is less than the aggregate outstanding amount of LC Loans, such amount shall be applied pro rata to the prepayment of the LC Loans);
 
(g)           If the Equity Investor shall be required to make an Equity Contribution pursuant to Section 2.1(a)(ii) of the Equity Contribution Agreement, the Borrower shall prepay Construction Loans with any and all proceeds thereof, promptly upon receipt thereof, in accordance with Section 2.9 and Section 2.1(b)(ii) of the Equity Contribution Agreement;
 
(h)           The Borrower shall prepay Construction Loans on the Term Conversion Date to the extent required by the terms of Section 2.4(c), in accordance with Section 2.9; and
 
(i)           In the event of the termination of all of the Commitments in accordance with Section 2.10(a)(i), the Borrower shall on the date of such termination, terminate the Letters of Credit and/or cash collateralize the Letters of Credit in accordance with Section 2.16(n).
 
2.9           Terms of All Prepayments.
 
(a)           Except as otherwise provided in this Agreement (including Section 2.8 and this Section 2.9), amounts to be applied in connection with mandatory prepayments made pursuant to Section 2.8 shall be applied (i) first, to the prepayment of Construction Loans or Term Loans, as the case may be, in accordance with Section 2.9(b), (ii) second, to the prepayment of LC Loans and (iii) third, to permanently reduce the then remaining LC Commitments on a pro rata basis and terminate or cash collateralize any issued Letters of Credit, if applicable, on a pro rata basis in accordance with Section 2.16(n).  Amounts prepaid as mandatory prepayments of Loans may not be re-borrowed.  The application of any prepayment pursuant to Section 2.8 shall be made first to Base Rate Loans and second to LIBOR Loans, in each case pro rata among such Base Rate Loans or LIBOR Loans, as applicable.
 
(b)           Term Loans prepaid in accordance with Section 2.8 shall, subject to the last sentence of Section 2.9(a), be applied pro rata to each Scheduled Repayment Amount then provided for in the Amortization Schedule, excluding the final Scheduled Repayment Amount unless all other Scheduled Repayment Amounts have been paid.

(c)           All prepayments of Loans shall be applied among the Lenders according to their respective Proportionate Shares of the Loans being repaid at the time of the applicable prepayment.

(d)           Amounts to be applied in connection with voluntary prepayments made pursuant to Section 2.7 shall be applied, in the case of the Term Loans, in inverse order of maturity against the remaining Scheduled Repayment Amounts then provided for in the Amortization Schedule, including the final Scheduled Repayment Amount.  The application of any prepayment pursuant to Section 2.7 shall be made, first, to Base Rate Loans and, second, to LIBOR Loans.

(e)           Upon the prepayment of any Loan (whether such prepayment is an optional prepayment or a mandatory prepayment), the Borrower shall pay to the Administrative Agent for the account of each Lender which made such Loan (i) all accrued interest to the date of such prepayment owed pursuant to the terms of this Agreement on the amount prepaid; (ii) all accrued fees to the date of such prepayment owed pursuant to the terms of this Agreement corresponding to the amount being prepaid; and (iii) if such prepayment is the prepayment of a LIBOR Loan on a day other than the last day of an Interest Period for such LIBOR Loan, all Breakage Costs incurred by such Lender as a result of such prepayment.  Subject to

 
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the making of new LC Loans pursuant to Sections 2.3(b) and 2.16(e), Loans prepaid or repaid may not be re-borrowed.
 
(f)           In the event of any prepayment of Term Loans under this Agreement, such prepayment shall be accompanied by a concurrent reduction by the Borrower of the notional amount of the Interest Rate Agreements (including the payment of any Interest Fix Fees that become due and payable as a result thereof) then in effect, pro rata, to the extent that such a reduction is necessary so that after such prepayment the aggregate notional amounts under such Interest Rate Agreements would not exceed one hundred percent (100%) of all Term Loans outstanding.
 
(g)           Except for Construction Loans that are Term Converted pursuant to the terms of this Agreement, in no event shall any mandatory or optional prepayments be funded from the proceeds of any Loan.

2.10        Termination or Reduction of Commitments.
 
(a)           (i)  The Borrower shall have the right to terminate the Commitments in full in connection with a prepayment of all the outstanding Loans in accordance with Sections 2.7 or 2.8.
 
(ii)           The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to terminate, or from time to time reduce, any of the Construction Loan Commitments (and correspondingly terminate or reduce the Term Loan Commitments in the same amount); provided that (i) each reduction of such Construction Loan Commitments (other than a Construction Loan Commitment reduction to zero) shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 (or if less, the remaining amount of such Construction Loan Commitments), (ii) the Borrower shall not terminate or reduce the Construction Loan Commitments unless, after giving effect thereto, the remaining unused amount of the Construction Loan Commitments, the amount of the Equity Commitment and any other cash in the Construction Account or the Loss Proceeds Account is sufficient to fund all Project Costs (together with Punch List Items) projected to be incurred from the date of termination or reduction of Construction Loan Commitments through the Term Loan Conversion Date, as certified to the Lenders by the Borrower and confirmed by the Independent Engineer and (iii) no such termination or reduction would reasonably be expected to cause a Default or Event of Default.  Any such termination or reduction of the Construction Loan Commitments (and corresponding reduction of the Term Loan Commitments) shall permanently reduce the Construction Loan Commitments and the Term Loan Commitments.

(b)           The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent and the applicable Issuing Banks, to terminate, or from time to time reduce, any of the LC Commitments; provided that (i) each reduction of the LC Commitments shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 (or, if less, the remaining amount of the applicable LC Commitments), (ii) the Borrower shall not terminate or reduce the DSR LC Commitments unless, after giving effect thereto, the DSR Requirement shall be satisfied in accordance with the Depositary Agreement and (iii) the Borrower shall not terminate or reduce the Project LC Commitments unless it has demonstrated to the satisfaction of the Administrative Agent that, after giving effect to such termination or reduction, all of the collateral, support and similar requirements then in effect under the Material Project Documents are satisfied.  Any such termination or reduction in the LC Commitments shall permanently reduce the applicable LC Commitments then in effect.
 
2.11          Conversion and Continuation Options.  (a)  The Borrower may elect from time to time to convert LIBOR Loans to Base Rate Loans by delivering to the Administrative Agent an irrevocable

 
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written notice in the form of Exhibit A-3 (a “Notice of Conversion or Continuation”) no later than 10:00 A.M., New York time, on the Business Day preceding the proposed conversion date, provided that any such conversion of LIBOR Loans may only be made on the last day of an Interest Period with respect thereto.  The Borrower may elect from time to time to convert Base Rate Loans to LIBOR Loans by delivering to the Administrative Agent an irrevocable Notice of Conversion or Continuation no later than 10:00 A.M., New York time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor), provided that no Base Rate Loan may be converted into a LIBOR Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Required Lenders have determined in its or their sole discretion not to permit such conversions.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

(b)           Any LIBOR Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower delivering to the Administrative Agent an irrevocable Notice of Conversion or Continuation, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans, provided that no LIBOR Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations, and provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

2.12          Limitations on LIBOR Rate Tranches.  Notwithstanding anything to the contrary in this Agreement, absent the consent of the Administrative Agent all borrowings, conversions and continuations of LIBOR Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the LIBOR Loans comprising each LIBOR Rate Tranche shall be equal to $5,000,000 or a whole multiple of $100,000 in excess thereof and (b) no more than six (6) LIBOR Rate Tranches shall be outstanding at any one time.
 
2.13         Interest Rates and Payment Dates.
 
(a)           Each LIBOR Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the LIBOR Rate determined for such day plus the Applicable Margin.

(b)           Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin.

(c)           (i) If all or a portion of the principal amount of any Loan shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2%, and (ii) if all or a portion of any interest payable on any Loan or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans plus 2%, in each case, with respect to clauses (i) and (ii) above, from the date of such non payment until such amount is paid in full (as well after as before judgment) (such applicable rate, the “Default Rate”).

 
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(d)           Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand.
 
2.14         Computation of Interest and Fees.  (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a LIBOR Rate.  Any change in the interest rate on a Loan resulting from a change in the Base Rate or the LIBOR Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

(b)           Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error.  The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.13(a).
 
2.15         Promissory Notes.
 
(a)           The obligation of the Borrower to repay the Construction Loans made by each Lender and to pay interest thereon at the rates provided herein shall if requested by such Lender be evidenced by Construction Loan promissory notes in the form of Exhibit C-1 (individually, a “Construction Loan Note” and, collectively, the “Construction Loan Notes”), each payable to such Lender or its registered successors or assigns and in the principal amount of such Lender’s Construction Loan Commitment.

(b)           The obligation of the Borrower to repay the Term Loans made by each Lender and to pay all interest thereon at the rates provided herein shall if requested by such Lender be evidenced by Term Loan promissory notes substantially in the form of Exhibit C-2 (individually, a “Term Loan Note” and, collectively, the “Term Loan Notes”), each payable to such Lender or its registered successors or assigns and in the principal amount of such Lender’s Term Loan Commitment.  Such Term Loan Notes shall be delivered to each applicable Lender on or prior to the Term Conversion Date.

(c)           The obligation of the Borrower to repay the LC Loans made by each Issuing Bank and to pay all interest thereon at the rates provided herein shall if requested by such Issuing Bank be evidenced by an LC Loan promissory note substantially in the form of Exhibit C-3 (the, “LC Loan Note”), payable to such Issuing Bank or its registered successors or assigns and in the principal amount of such Lender’s LC Commitment.  The LC Loan Notes shall be delivered to each applicable Issuing Bank on or prior to the date of issuance of the applicable Letter of Credit.

2.16         Letters of Credit.
 
(a)           LC Commitment.  (i)  Subject to the terms and conditions hereof,
 
(A)           each DSR Issuing Bank agrees to issue a DSR Letter of Credit for the account of the Borrower on the Term Loan Conversion Date, in the maximum stated amount equal to the DSR LC Commitment of the DSR Issuing Bank issuing such DSR Letter of Credit;

 
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(B)           the Decommissioning Issuing Bank agrees to issue the Decommissioning Letter of Credit for the account of the Borrower in favor of Merced County on the Commercial Operation Date under the SCE Power Purchase Agreement, in the maximum stated amount equal to $3,335,742.15;

(C)       the PPA Issuing Bank agrees to issue the PPA Development Letter of Credit for the account of the Borrower in favor of the Power Purchaser on the Closing Date, in the maximum stated amount equal to $3,240,000.00; and

(D)           provided the Commercial Operation Date under the SCE Power Purchase Agreement has occurred (or will occur contemporaneously with the issuance of the PPA Performance Letter of Credit), the PPA Performance Issuing Bank agrees to issue the PPA Performance Letter of Credit for the account of the Borrower in favor of the Power Purchaser under the SCE Power Purchase Agreement, in the maximum stated amount equal to $38,651,040.00.
 
(ii)           Each Letter of Credit shall (A) be denominated in Dollars and (B) expire no later than the earlier of (1) twelve (12) months from the date of issuance of such Letter of Credit and (2) the date that is five (5) Business Days prior to the LC Commitment Termination Date; provided that each Letter of Credit shall provide for renewal for one or more additional 12 month periods (which in no event shall extend beyond the LC Commitment Termination Date).  Each Letter of Credit shall provide that the available amount thereunder shall be reduced by each Drawing made by the applicable beneficiary pursuant to such Letter of Credit (such amount for each such Letter of Credit, as so reduced from time to time, outstanding at any time, the “Available Amount”) subject to Section 2.16(m) in the case of DSR Letters of Credit.  Each Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify the Lenders, of any changes in the Available Amount of the Letter of Credit issued by it or the expiration date of any Letter of Credit; provided, however, that the failure to give such notice, or notice of a Drawing, shall not limit or impair the rights of such Issuing Bank hereunder and under the Loan Documents.

(iii)           No Issuing Bank shall at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause such Issuing Bank to exceed any limits imposed by, any applicable Governmental Rule.
 

(b)           Procedure for Issuance of Letters of Credit.  The Borrower may request that an Issuing Bank issue the applicable Letter of Credit to the extent not issued prior to the date hereof by delivering to such Issuing Bank and the Administrative Agent, at the applicable addresses for notices specified herein, a LC Issuance Notice, substantially in the form of Exhibit G, and a letter of credit application in such Issuing Bank’s standard form in connection with any request for a letter of credit, completed to the satisfaction of such Issuing Bank, and such other certificates, documents and other papers and information as such Issuing Bank may request.  Upon receipt of such LC Issuance Notice and such application and the reasonable satisfaction of the conditions precedent in Section 3.3, such Issuing Bank will process such application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue such Letter of Credit requested thereby (but in no event shall such Issuing Bank be required to issue such Letter of Credit earlier than three (3) Business Days after its receipt of the LC Issuance Notice and application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Bank and the Borrower.  Each Issuing Bank shall furnish a copy of the Letter of Credit issued by it to the Borrower and the Administrative Agent promptly following the issuance thereof.  Such Issuing

 
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Bank shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of such Letter of Credit.
 
(c)           Fees and Other Charges.  In addition to the fees payable pursuant to Section 2.6, the Borrower shall pay or reimburse each Issuing Bank for such normal and customary costs and expenses as are incurred or charged by such Issuing Bank in issuing, negotiating, effecting payment under, amending or otherwise administering the Letter of Credit issued by it.

(d)           Drawings.  In the event that a Drawing is made on any Letter of Credit on or prior to the LC Commitment Termination Date, (i) the applicable Issuing Bank shall promptly notify the Borrower and the Administrative Agent, and the Administrative Agent shall notify the Lenders, of such Drawing, and (ii) any payment by such Issuing Bank of such Drawing shall, to the extent provided in Section
2.16(e) below, constitute the making by such Issuing Bank of a LC Loan to the Borrower in the amount of such Drawing.  In such event, any Issuing Bank making a LC Loan shall be entitled to the same rights and remedies (on a pro rata basis) in respect of such LC Loans as any Lender that has made a Construction Loan has in respect of such Construction Loans hereunder.  All such LC Loans made with respect to Drawings under the related Letter of Credit under this Section 2.16 shall be secured by the Security Documents as if made directly to the Borrower.

(e)           Reimbursement Obligation of the Borrower.
 
(i)           If a Drawing is paid under any Letter of Credit, the Borrower shall reimburse the applicable Issuing Bank for the amount of such Drawing so paid by paying to the Administrative Agent an amount equal to such Drawing in Dollars, no later than 3:00 p.m., New York City time, on the Business Day immediately following the date the Borrower receives notice thereof, subject to this Section 2.16(e).  So long as no Event of Default has occurred and is continuing, if any Drawing is paid under any Letter of Credit issued by the related Issuing Bank, the payment by such Issuing Bank of such Drawing shall constitute the making of a DSR LC Loan or Project LC Loan, as applicable, by such Issuing Bank to the Borrower in the amount of such Drawing, and to the extent so financed, the Borrower’ Reimbursement Obligations shall be discharged and replaced by the resulting LC Loans.  In addition, the Borrower shall reimburse such Issuing Bank for any taxes, fees, charges or other costs or expenses incurred by such Issuing Bank in connection with the payment of any such Drawing not later than 12:00 Noon, New York City time, on (i) the Business Day that the Borrower receive notice of such Drawing, if such notice is received on such day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above does not apply, the Business Day immediately following the day that the Borrower receive such notice. Each such payment shall be made to the applicable Issuing Bank at its address for notices referred to herein in Dollars and in immediately available funds.  Interest shall be payable on any LC Loans made by any Issuing Bank as a result of any Drawing from the date on which the relevant Drawing is paid until payment in full.
 
(ii)         &