FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
Exhibit 10.73
Execution Version
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 5, 2015 (this “Amendment”), is entered into by and between 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), and SILICON VALLEY BANK, a California corporation (the “Lender”). The purpose of this Amendment is to amend that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to Amended and Restated Credit Agreement, effective as of October 24, 2014, in each case, by and between the Borrower and the Lender (collectively, the “Credit Agreement”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.
WHEREAS, pursuant to the Credit Agreement, the Lender agreed to make a credit facility available to the Borrower, subject to the terms and conditions set forth therein; and
WHEREAS, on and subject to the conditions of this Amendment, the undersigned are willing to agree to the requested amendments to the Credit Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned agree as follows:
Section 1. Amendments to the Credit Agreement. The Credit Agreement is hereby amended in the manner set forth in Exhibit A to this Amendment.
Section 2. Amendments to Schedule 5.11 to the Credit Agreement. Schedule 5.11 to the Credit Agreement is hereby amended in the manner set forth in Exhibit B to this Amendment.
Section 3. Amendments to Exhibit A to the Credit Agreement. Exhibit A to the Credit Agreement is hereby amended in the manner set forth in Exhibit C to this Amendment.
Section 4. Amendments to Exhibit H to the Credit Agreement. Exhibit H to the Credit Agreement is hereby amended in the manner set forth in Exhibit D to this Amendment.
Section 5. Effectiveness. This Amendment shall be effective when all of the following conditions are satisfied:
(a) Borrower has paid to Lender an additional availability fee of $[***] made in immediately available funds pursuant to the wire instruction listed on Schedule 3.09(a) of the Credit Agreement, or at such other office or account as may be specified by the Lender to the Borrower; and
(b) this Amendment has been executed by the Lender and the Borrower and shall thereafter be effective as of the date first set forth above.
Section 6. Limited Purpose. Notwithstanding anything contained herein, the waivers, amendments and modifications made hereby: (a) are limited waivers, amendments and modifications and do not waive, alter or amend any term of any Financing Document other than as expressly set forth herein, (b) are effective only with respect to the transactions described herein and in the Financing Documents for the specific instance and the specific purposes to which the relevant provisions apply, and (c) shall not be effective for any other purpose or transaction.
Section 7. Effect on Credit Agreement. Except as expressly amended hereby or otherwise provided herein, all of the terms and conditions of the Credit Agreement and all other Financing Documents remain in full force and effect, and none of such terms and conditions are, or shall be construed as, otherwise amended or modified. All references to the Credit Agreement in the Credit Agreement and the other Financing Documents, and any documents, instruments and agreements related to them, shall hereafter refer to the Credit Agreement as amended hereby.
Section 8. Representations and Warranties. Each party represents and warrants to the other that:
(a) the execution and delivery of this Amendment and the performance by such party of its obligations hereunder have been authorized by all requisite action on its part; and
(b) this Amendment has been validly executed and delivered by such party, and assuming that this Amendment has been duly authorized, executed, and delivered by the other parties, constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Section 9. Miscellaneous.
(a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) This Amendment shall be deemed a Financing Document.
(c) This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
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(d) Delivery of an executed counterpart of a signature page of this Amendment by telecopy or portable document format (“PDF”) shall be effective as delivery of a manually executed counterpart of this Amendment.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to Amended and Restated Credit Agreement to be executed by their respective officers effective as of the day and year first above written.
| 2013B ESA PROJECT COMPANY, LLC, as the Borrower | ||
| By: |
| |
| Name: Xxxxxxx X. Xxxxxxxxxxxxxx | ||
| Title: Vice President and Secretary | ||
Fourth Amendment to
Amended and Restated Credit Agreement
| SILICON VALLEY BANK, as the Lender | ||
| By: |
| |
| Name: Xxx Xxxxx | ||
| Title: Managing Director | ||
Fourth Amendment to
Amended and Restated Credit Agreement
Exhibit A to
Fourth Amendment
to Amended and Restated Credit Agreement
Amendments to Amended and Restated Credit Agreement
*Added text is in blue with underlining. Deleted text is in red with strikethrough marks.
Section 2.05 Termination or Reduction of Commitment.
(a) Any unused Loan Commitment shall be automatically and permanently terminated on the Secondary Date Certain.
(b) Upon any prepayment of the Loans pursuant to Section 3.08 (Mandatory Prepayment), the Loan Commitment shall be automatically and permanently reduced in an amount equal to such prepayment.
(c) Any unused Loan Commitment shall be terminated upon the occurrence of an Event of Default if and to the extent required pursuant to Section 8.02 (Action Upon Bankruptcy) or Section 8.03 (Action Upon Other Event of Default) in accordance with the terms thereof.
Exhibit B to
Fourth Amendment
to Amended and Restated Credit Agreement
Amendments to Schedule 5.11 Part A to Credit Agreement
*Added text is in blue with underlining. Deleted text is in red with strikethrough marks. Listed items are renumbered accordingly.
* * *
| 1. | the LTSA; |
| 2. | the Administrative Services Agreement; |
| 3. | the Reservation Letters for each Site eligible to receive payments under the California Self-Generation Incentive Program; |
| 4. | Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between [***] ([***]) and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between [***] and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA1”); |
| 5. | Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between [***] and Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA2”); |
| 6. | Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between [***] and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, as further amended by Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, effective as of October 24, 2014, in each case, by and between [***] and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA3”); |
[***] Confidential Treatment Requested
| 7. | Energy System Use Agreement No. 20130403.076.C (“PPA4”), dated as of May 15, 2013, by and between [***] and 2012 ESA (as amended by the PPA Acknowledgement and as may be further amended, amended and restated, supplemented or otherwise modified from time to time,), which was assigned by 2012 ESA to Borrower pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to the Termination Agreement and which PPA4 has been assigned by 2012 ESA to Borrower pursuant to the Assignment and Assumption Agreement #1; |
| 8. | Energy System Use Agreement, effective as of July 24, 2013, by and between [***] Offtaker and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA5”), which PPA5 has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2; |
| 9. | Energy System Use Agreement, effective as of October 24, 2014, by and between [***] and Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA6”); |
| 10. | Lender Agreement, dated as of July 18, 2014, by and among [***] Offtaker, Lender and Borrower relating to PPA5; |
| 11. | License Agreement, dated as of July 24, 2013, between [***] Offtaker and Borrower relating to PPA5, which License Agreement has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2; |
| 12. | [***] Guaranty; |
| 13. | [***] Guaranty; |
| 14. | Lender Agreement, dated May 15, 2013, by and among [***] Lender and Borrower relating to PPA3; |
| 15. | Lender Agreement, dated May 15, 2013, by and among [***] Lender and Borrower relating to PPA1; |
| 16. | Lender Agreement, dated May 15, 2013, by and among [***] Lender and Borrower relating to PPA2; |
| 17. | Lender Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and among [***] Lender and Borrower relating to PPA4; |
| 18. | Lender Agreement, effective as of October 24, 2014, by and among [***] Lender and Borrower relating to PPA6; |
| 19. | Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA1; |
[***] Confidential Treatment Requested
Schedule 5.11 Part A — 2
| 20. | Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA2; |
| 21. | Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA3; |
| 22. | Site Lease Agreement, dated May 15, 2013, between [***] Inc. and Borrower relating to PPA3; |
| 23. | Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA3; |
| 24. | Site Lease Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and between [***] and Borrower relating to PPA4; |
| 25. | Site Lease Agreement, dated October 24, 2014, between [***] a Delaware corporation, and Borrower relating to PPA6; |
| 26. | the IP License; |
| 27. | the IP Security Agreement; |
| 28. | the Indemnity Agreement; |
| 29. | the Assignment and Assumption Agreement; |
| 30. | the PPA Amendments; |
| 31. | the PPA Acknowledgement; |
| 32. | the Termination Agreement; |
| 33. | the LLC Agreement of the Borrower; |
| 34. | the Pledgor LLC Agreement; |
| 35. | the Equity Funding Agreement |
| 36. | the [***] PPA, which was assigned by 2015 ESA to Borrower pursuant to that certain [***] PPA Assignment; |
| 37. | the [***] PPA Assignment; and |
| 38. | Lender Agreement, dated May 5, 2015, by and among [***] Lender and Borrower relating to [***] PPA. |
[***] Confidential Treatment Requested
Exhibit C to
Fourth Amendment
to Amended and Restated Credit Agreement
Amendments to Exhibit A to Credit Agreement
*Added text is in blue with underlining. Deleted text is in red with strikethrough marks.
“2015 ESA” means 2015 ESA Project Company, LLC, a Delaware limited liability company.
“Assignment and Assumption Agreement” means, collectively, (i) the Assignment and Assumption Agreement #1 and
(ii) the Assignment and Assumption Agreement #2 and (iii) [***] PPA Assignment.
“Availability Period” means the period from and including the Closing Date to and including the Secondary Date Certain.
[***] means the [***]
“[***] PPA” means that certain Energy Services and License Agreement, dated as of December 17, 2014, by and between [***] and 2015 ESA, as amended by the Amendment No. 1 to Energy Services and License Agreement, by and between [***] and Borrower, effective as of December 17, 2014, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was assigned by 2015 ESA to Borrower pursuant to that certain [***] PPA Assignment.
“[***] PPA Assignment” means Assignment and Assumption Agreement, effective as of December 17, 2014, by and between 2015 ESA, as assignor, and Borrower, as assignee with respect to [***] PPA.
“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First
Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, and as further amended by
the Third Amendment to Amended and Restated Credit Agreement, effective as of October 24, 2014, and as further amended by the Fourth Amendment to Amended and Restated Credit Agreement, dated as of May 4, 2014, by and between the
Borrower and the Lender, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.
“Equity Funding
Agreement” means that certain Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013, as further amended by the
Second Amendment to Equity Capital Contribution Agreement, dated as of March 28, 2014, as further amended by the Third Amendment to Equity Capital Contribution Agreement, dated as of July 18, 2014, and as further amended
by the Fourth Amendment to Equity Capital Contribution Agreement, effective as of October 24, 2014, and as further amended by the Fifth Amendment to Equity Capital
[***] Confidential Treatment Requested
Contribution Agreement, dated as of May 5, 2015, by and between the Tax Investor and Bloom Investor, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.
“Interparty Agreement” means
that certain Interparty Agreement, dated as of August 2, 2013, by and among the Borrower, the Tax Investor and the Lender, as amended by that certain First Amendment to Interparty Agreement, dated as of the September 25, 2013
Effective Date, by and among the Borrower, the Tax Investor and the Lender, and as further amended by that certain Second Amendment to Interparty Agreement, dated as of the May 5, 2015, by and among the Borrower, the Tax
Investor and the Lender, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.
“LTSA” means that certain Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as
amended by the First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014, as further amended by the Second Amendment to Amended and Restated Master Energy Server Purchase and
Services Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated effective as of
October 24, 2014, and as further amended by the Fourth Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of May 5, 2015, between the Parent and the Borrower, as may be further amended,
amended and restated, supplemented, or otherwise modified from time to time.
“PPA Indemnity Agreement” means that certain Amended and
Restated Indemnity Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Indemnity Agreement, dated as of July 18, 2014, and as further amended by the Second Amendment to
Amended and Restated Indemnity Agreement, effective as of October 24, 2014, and as further amended by the Third Amendment to Amended and Restated Indemnity Agreement, dated as of May 5, 2015, between the Borrower and the Parent, as
may be further amended, amended and restated, supplemented, or otherwise modified from time to time.
“Qualified Customers” means [***] the [***] Offtaker (only so long as the [***] Guaranty is in place), [***] (only so long as the [***] Guaranty is in place), [***] and any other Person that is approved by the Lender in its sole discretion.
“Secondary Date Certain” means June 30, 2015.
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[***] Confidential Treatment Requested
Exhibit D to
Fourth Amendment
to Amended and Restated Credit Agreement
Amendments to Exhibit H to Credit Agreement
[To be attached.]
