Execution Version CREDIT AGREEMENT Dated as of February 15, 2023 among APA FINANCE III BORROWER, LLC, as the Borrower, APA FINANCE III BORROWER HOLDINGS, LLC, as the Equity Holder, BLACKSTONE ASSET BASED FINANCE ADVISORS LP, as Blackstone...
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Execution Version CREDIT AGREEMENT Dated as of February 15, 2023 among APA FINANCE III BORROWER, LLC, as the Borrower, APA FINANCE III BORROWER HOLDINGS, LLC, as the Equity Holder, BLACKSTONE ASSET BASED FINANCE ADVISORS LP, as Blackstone Representative, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent, U.S. BANK NATIONAL ASSOCIATION, as Document Custodian, and THE LENDERS PARTY HERETO FROM TIME TO TIME
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iv Section 11.03 No Waiver; Cumulative Remedies ........................................................ 155 Section 11.04 Costs and Expenses ............................................................................... 155 Section 11.05 Indemnification by the Borrower .......................................................... 157 Section 11.06 Payments Set Aside. .............................................................................. 159 Section 11.07 Successors and Assigns ......................................................................... 159 Section 11.08 Confidentiality ....................................................................................... 167 Section 11.09 Setoff ..................................................................................................... 168 Section 11.10 Interest Rate Limitation ......................................................................... 169 Section 11.11 Counterparts .......................................................................................... 169 Section 11.12 Integration; Termination ........................................................................ 170 Section 11.13 Survival of Representations and Warranties ......................................... 170 Section 11.14 Severability ............................................................................................ 170 Section 11.15 GOVERNING LAW ............................................................................. 170 Section 11.16 WAIVER OF RIGHT TO TRIAL BY JURY. ...................................... 171 Section 11.17 Binding Effect ....................................................................................... 171 Section 11.18 USA PATRIOT Act .............................................................................. 172 Section 11.19 No Advisory or Fiduciary Responsibility .............................................. 172 Section 11.20 Electronic Execution of Assignments ................................................... 173 Section 11.21 Effect of Certain Inaccuracies ............................................................... 173 Section 11.22 Judgment Currency ............................................................................... 174 Section 11.23 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ............................................................................................. 174
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v SCHEDULES 1.01A Commitments 1.01B Collateral Documents 1.01D Closing Date L/Cs 1.01E Closing Date Projects 1.01F Closing Date Tax Equity Financing 1.01G Bloomberg NEF PV Module Tier 1 List 1.01H Contribution Agreements 5.05 Certain Liabilities 5.06 Litigation 5.08 Intellectual Property 5.09 Environmental Matters 5.10 Taxes 5.12 Subsidiaries 6.28 Post-Closing Deliveries 7.01(b) Existing Liens 7.02(e) Existing Investments 7.03(b) Existing Indebtedness 7.07 Transactions with Affiliates 7.08 Certain Contractual Obligations 11.02(a) Administrative Agent’s Office, Certain Addresses for Notices EXHIBITS Form of A Committed Loan Notice B-1 Class A Note B-2 Class B Note C Compliance Certificate D Solvency Certificate E Assignment and Assumption F Security Agreement G Perfection Certificate H Limited Guarantee Agreement I-1 Affiliated Lender Assignment and Assumption I-2 Affiliated Lender Notice J-1 US Tax Compliance Certificate (Foreign Non-Partnership Lenders) J-2 US Tax Compliance Certificate (Foreign Non-Partnership Participants) J-3 US Tax Compliance Certificate (Foreign Partnership Lenders) J-4 US Tax Compliance Certificate (Foreign Partnership Participants) K Payment Date Report L [Reserved] M Notice of New Project N Form of Request for Release of Custody Documents
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2 CREDIT AGREEMENT This CREDIT AGREEMENT (as the same may be amended, restated, amended and restated, refinanced, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of February 15, 2023, among APA FINANCE III BORROWER, LLC, a Delaware limited liability company (the “Borrower”), APA FINANCE III BORROWER HOLDINGS, LLC, a Delaware limited liability company (the “Equity Holder”), BLACKSTONE ASSET BASED FINANCE ADVISORS LP, as Blackstone Representative, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent, U.S. BANK NATIONAL ASSOCIATION, as Document Custodian, and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”). PRELIMINARY STATEMENTS The Borrower has requested that, upon satisfaction or waiver of the conditions set forth in Section 4.01, the Lenders extend credit to the Borrower in the form of the Term Loans on the Borrowing Date in an aggregate principal amount equal to the aggregate Commitment of all of the Lenders. The proceeds of the Term Loans will be used by the Borrower, directly or indirectly, to fund (i) the Debt Service Reserve Account, (ii) cash on the balance sheet, (iii) the Borrower’s portion of the acquisition, development, construction and operating costs associated with or related to certain Projects (as hereinafter defined), including, without limitation, any initial working capital and (iv) the Transactions and the Transaction Expenses. The applicable Lenders have indicated their willingness to lend on the terms and subject to the conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS Section 1.01 Defined Terms. As used in this Agreement (including in the preliminary statements hereto), the following terms shall have the meanings set forth below: “Acceptable CS Customers” means (i) with respect to each Eligible CS Project acquired pursuant to the TGC Project MIPA, the counterparties to the subscription agreements for such acquired Projects (the “Initial CS Projects”) and (ii) otherwise, as of any date of determination, with respect to an Eligible CS Project, the counterparties to the subscription agreements for such Project as of such date, which counterparties shall (a) have a FICO score of not less than 680, as verified by Experian (or another credit reporting bureau acceptable to the Blackstone Representative), (b) make payments under an “autopay” program (including but not limited to ACH or credit card), (c) participate under consolidated billing, which merges payments with a utility payment or (d) fulfills the eligibility and evaluation criteria of a subscription manager of recognized standing, which eligibility and evaluation criteria is substantially consistent with the market practice (the “Subsequent CS Projects”); provided that (x) with respect to any Subsequent CS Projects, the average FICO score of the pool for all Eligible CS Projects, including the Initial CS Projects and all Subsequent CS Projects, shall be no less than 700 (provided that any
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3 Acceptable CS Customers without a FICO score shall be deemed to have a FICO score of 550), (y) Acceptable CS Customers with a FICO score below 700 must be no more than 15% of the pool for all Eligible CS Projects (excluding the Initial CS Projects) and (z) each subscription agreement shall be originated and serviced in compliance with all applicable laws and regulations. “Acceptable L/C Issuer” means, at any time, (a) any bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of A- or higher by KBRA (or if not rated by KBRA, a comparable rating from an internationally recognized credit rating agency) at such time or (b) any bank or financial institution which (having previously satisfied such requirement) ceases to satisfy the foregoing ratings requirement for a period of not more than forty-five (45) days. “Acceptable Rating Agency” means (a) KBRA, or (b) any other credit rating agency that is recognized as a nationally recognized statistical rating organization by the U.S. Securities and Exchange Commission and approved by the Blackstone Representative, so long as, in each case, any such credit rating agency described in clause (a) or (b) above continues to be a nationally recognized statistical rating organization recognized by the U.S. Securities and Exchange Commission and is approved as a “Credit Rating Provider” (or other similar designation) by the NAIC. “Account Control Agreement” means the Account Control Agreement among the Borrower, as debtor, the Collateral Agent, as secured party, and the Custodian, dated as of the Closing Date. “Administrative Agent” means U.S. Bank Trust Company, National Association, in its capacity as administrative agent in its own name under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means the Administrative Agent’s address and account as set forth on Schedule 11.02(a), or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders. “Administrative Expenses” means, without duplication, fees, expenses (including indemnities) and other amounts due and payable with respect to any Interest Payment Date or Quarterly Payment Date or with respect to any other date specified hereunder (including, with respect to any such date, any such amounts that were due and not paid on any prior date) and payable in the following order by the Borrower to: (a) first, to the Agents, on a pro rata basis, in respect of the Agent Fees and any fees owed to the Administrative Agent, Collateral Agent, the Document Custodian and the Custodian (if any), and for the reimbursement of reasonable and documented out-of-pocket expenses and disbursements incurred by (and any indemnities owing to) the Administrative Agent, Collateral Agent, the Document Custodian and the Custodian under any Loan Documents in accordance with the provisions of this Agreement; (b) second, to the Blackstone Representative in respect of any fees owed to the Blackstone Representative and for the reimbursement of reasonable and documented out-
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4 of-pocket expenses (including legal fees and expenses of counsel) and disbursements incurred by (and any indemnities owing to) the Blackstone Representative; (c) third, for fees and reasonable and documented out-of-pocket expenses of the Rating Agency in connection with any rating of the Loans; (d) fourth, on a pro rata basis, the following amounts (excluding indemnities unless otherwise noted) to the following parties: (1) the Collateral Manager (other than the Management Fee), amounts payable under the Collateral Management Agreement, including legal fees and expenses of counsel to the Collateral Manager; (2) the Independent Director pursuant to the Organizational Documents, amounts payable in respect of services provided to the Borrower; (3) the agents and counsel of the Borrower for fees, including retainers, and expenses (including the expenses associated with complying with FATCA and any other tax compliance regulations); and (4) without duplication, any Person in respect of (x) any other reasonable fees or expenses of the Borrower (including in respect of any indemnity obligations, if applicable) not prohibited under this Agreement and (y) any reports and documents delivered pursuant to or in connection with this Agreement; and (e) fifth, on a pro rata basis, indemnities payable to any Person permitted under this Agreement or the documents delivered pursuant to or in connection with this Agreement or the other Loan Documents not otherwise paid (including without limitation indemnities payable by the Borrower to any Independent Director in accordance with its Organizational Documents); provided that Administrative Expenses shall not include (1) any salaries of any employees of the Group Members (for the avoidance of doubt, the Group Members do not and shall not have any employees or pay any salaries) or the Collateral Manager, (2) any Increased Costs, (3) amounts due in respect of actions taken on or before the Closing Date in connection with the closing of the Transactions and (4) any Management Fee. “Administrative Officer” means, (a) when used with respect to the Collateral Agent, any vice president, assistant vice president, treasurer, assistant treasurer, trust officer, associate or any other officer of the Collateral Agent who shall have direct responsibility for the administration of this Agreement or to whom any corporate trust matter is referred within the Corporate Trust Office because of his or her knowledge of and familiarity with the particular subject, and in each case having direct responsibility for the administration of this Agreement and (b) when used with respect to the Administrative Agent, any officer within the office of the Administrative Agent at the address listed on the signature pages hereto, including any senior managing director, managing director, officer of the Administrative Agent customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any matter is referred at such location because of his or her knowledge of and familiarity with the
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5 particular subject, and in each case having direct responsibility for the administration of this Agreement. “Administrative Questionnaire” means an Administrative Questionnaire in such form as may be supplied from time to time by the Administrative Agent. “Affiliate” means, with respect to any Person, (a) any other Person who, directly or indirectly, is in control of, or controlled by, or is under common control with, such Person or (b) any other person who is a director, officer or employee (1) of such Person, (2) of any subsidiary or parent company of such Person or (3) of any Person described in clause (a) above. For the purposes of this definition, (1) “control” of a Person shall mean the power, direct or indirect, (x) to vote more than 50% of the securities or other interests having ordinary voting power for the election of directors of such Persons or (y) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise and (2) with respect to any Lender, the term “Affiliates” shall include any investment advisor to such Lender, any account, fund, client or portfolio established and controlled by the investment advisor of such Lender or for which such investment advisor or an Affiliate of such investment advisor acts as the investment adviser or exercises discretionary control. “Affiliated Lender” means, at any time, (a) any Lender that is an Investor (including portfolio companies of the Investors notwithstanding the exclusion in the definition of “Investors”) (other than the Borrower or any of its Subsidiaries and other than any Debt Fund Affiliate), (b) any Lender that is a Non-Debt Fund Affiliate of an Investor, (c) any Lender that is a direct or indirect holding company of the Borrower or (d) any investment advisor to any Affiliated Lender, any account, fund, client or portfolio established and controlled by the investment advisor of such Affiliated Lender or for which such investment advisor or an Affiliate of such investment advisor acts as the investment adviser or exercises discretionary control, at such time; provided that, notwithstanding the foregoing, Blackstone Asset Based Finance Affiliates and funds, accounts and clients managed or advised by them shall not constitute Affiliated Lenders. “Affiliated Lender Assignment and Assumption” has the meaning set forth in Section 11.07(l)(i). “Affiliated Lender Cap” has the meaning set forth in Section 11.07(l)(iii). “Agent Fees” means the fees payable to the Administrative Agent, the Collateral Agent, Custodian and Document Custodian in arrears on each Payment Date in an amount specified in the Agent Fee Letter. “Agent Fee Letter” means the letter agreement dated on or prior to the date hereof among the Borrower, Administrative Agent, the Collateral Agent, Custodian and Document Custodian. “Agent-Related Persons” means the Blackstone Representative, the Agents, together with their respective Affiliates and the officers, directors, employees, partners, agents, advisors, attorneys-in-fact and other representatives of such Persons and Affiliates. “Agents” means, collectively, the Administrative Agent, the Collateral Agent , the Custodian, the Document Custodian and the Supplemental Agents (if any).
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6 “Aggregate Collections” means, for any Test Period, the aggregate amount of Collections deposited in the Collection Account during such Test Period; provided that: (a) solely for purposes of calculating “Aggregate Collections” for any Test Period that includes any one or more of the Fiscal Quarters ended June 30, 2022, September 30, 2022 and December 31, 2022, Collections shall be deemed to be have been deposited into the Collection Account during such Fiscal Quarter in an amount equal to $7,755,635, $10,559,676 and $ 3,821,512 for such Fiscal Quarters; and (b) solely for purposes of calculating “Aggregate Collections” for any Test Period that includes the Fiscal Quarter ended March 31, 2023, Collections shall be deemed to have been deposited into the Collection Account during such Fiscal Quarter in an amount equal to (1) $1,643,178 plus (2) the actual amount of Collections deposited into the Collection Account during the period from and including the Business Day following the Closing Date through and including March 31, 2023. “Aggregate Commitments” means the Commitments of all the Lenders. “Agreement” means this Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time. “AML Laws” has the meaning set forth in Section 10.01. “Amortization Amount” means, with respect to the Loans of each Class on any Interest Payment Date, an amount equal to the product of (a) the aggregate initial principal balance of the Term Loans of such Class on such date (for the avoidance of doubt, determined prior to payments made on such Class of Loans on such date) multiplied by (b) a percentage equal to at any time prior to the Anticipated Repayment Date, 2.5%, divided by (c) four, in each case, together with any accrued but unpaid Amortization Amounts from prior Interest Payment Dates; provided, that, at any time on or after the Anticipated Repayment Date, the “Amortization Amount” shall be in an aggregate principal amount equal to 100% of remaining cash on deposit in the Payment Account. “Anti-Corruption Laws” means, to the extent applicable, (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Xxxxxxx Xxx 0000, as amended; and (c) any other anti-bribery or anti-corruption laws, regulations or ordinances in any jurisdiction in which any Group Member is located or doing business. “Anti-Money Laundering Laws” means applicable law, rule or regulation in any jurisdiction in which any Group Member is located or doing business that relates to money laundering or terrorism financing, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto. “Anticipated Repayment Date” means June 30, 2033, or if such day is not a Business Day, the immediately following Business Day. “Applicable Period” has the meaning set forth in Section 11.21.
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7 “Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender. “Asset Management Agreement” means, with respect to a Project, the document identified in the Notice of New Project as the Asset Management Agreement for such Project, and which Asset Management Agreement shall either be in a form consistent with Holdings’ past business practices or otherwise acceptable to the Required Lenders. “Assignees” has the meaning set forth in Section 11.07(b)(i). “Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E. “Attorney Costs” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external legal counsel. “Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP. “Available Draw Amount” means, as of any date of determination with respect to any letter of credit, the amount available to be drawn thereunder on such date; provided that, if an LC Default shall have occurred with respect thereto, then the “Available Draw Amount” with respect to such letter of credit for purposes of this Agreement shall be equal to zero. “Average Credit Profile” means, with respect to all of the Projects selling power pursuant to one or more Power Purchase Agreements at any date, the average credit profile of all of the customers of all such Projects at such date (based on the respective ratings or credit scores of such customers, weighted by the present value of the future expected payments in respect of each such customer’s account (determined using a discount rate of 6.0%)), and calculated in a manner consistent with the calculation of the Average Credit Profile on the Closing Date as agreed between the Borrower and the Blackstone Representative. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution. “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. “Bankruptcy Code” means the U.S. Bankruptcy Code, being Title 11 of the U.S. Code. “Blackstone Asset Based Finance” means Blackstone Asset Based Finance Advisors LP. “Blackstone Asset Based Finance Affiliates” means Affiliates of Blackstone Asset Based Finance within the structured finance group of The Blackstone Group Inc.
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8 “Blackstone Asset Based Finance Entity” means Blackstone Asset Based Finance and each Blackstone Asset Based Finance Affiliate, and shall include, without limitation, each fund, account and client that is, or is a fund or an account of, an insurance company, in any case that is managed, advised or sub-advised by Blackstone Asset Based Finance, as the context may require. “Blackstone Asset Based Finance Investor” shall mean any insurance company investor in a fund or an account managed or advised by Blackstone Asset Based Finance or a Blackstone Asset Based Finance Affiliate to which investor Blackstone Asset Based Finance or a Blackstone Asset Based Finance Affiliate is providing certain administrative and other services. “Blackstone Representative” shall mean, Blackstone Asset Based Finance, and, after the Closing Date, any successor or assign that is a Blackstone Asset Based Finance Affiliate appointed by the previous Blackstone Representative, effective after five (5) Business Days’ advance written notice of such appointment to the Borrower and the Administrative Agent; provided, that if no Lender under this Agreement is a Blackstone Asset Based Finance Entity then “Blackstone Representative” shall mean a Lender appointed by the Required Lenders and notified to the Administrative Agent to fulfill the role as the Blackstone Representative. “Blackstone Representative Side Letter” means the side letter agreement dated as of the Closing Date among Blackstone Asset Based Finance Advisors LP, as Blackstone Representative, the Borrower and certain of its Affiliates. “Bona Fide Debt Fund” means any fund or investment vehicle that is primarily engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and other similar extensions of credit in the ordinary course. “Borrowed Amount” means, with respect to any Borrowing, the aggregate principal amount of Loans made or to be made in respect of such Borrowing. “Borrower” has the meaning set forth in the introductory paragraph to this Agreement. “Borrower Materials” has the meaning set forth in Section 6.02. “Borrower Order” means a written order or request dated and signed in the name of the Borrower by a Responsible Officer of the Borrower (or a Responsible Officer of the Collateral Manager on its behalf), which order or request may be provided by email or other electronic communication (except to the extent that the Collateral Agent requests otherwise). “Borrowing” means each borrowing of Loans described in Section 2.01 on any single day. “Borrowing Date” means, with respect to any Borrowing, the date thereof. “Borrowing Percentage” means, (a) with respect to any Borrowing of Class A Loans, the related Class A Borrowing Percentage, and (b) with respect to any Borrowing of Class B Loans, the related Class B Borrowing Percentage.
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9 “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York or in the state in which the Corporate Trust Office is located. “Buyout Eligible JV” means, at any time, any Tax Equity JV in respect of which (a) any holder of any Stock of such Tax Equity JV (i) has a contractual right (whether arising under the applicable Tax Equity Documents or otherwise) to sell all or a portion of its Stock in such Tax Equity JV to any Group Member and (ii) such contractual right is exercisable by such holder at such time or will be exercisable by such holder at any time within the following 12 months or (b) any Group Member (i) has a contractual right (which right may, for the avoidance of doubt, be contingent on any election made or declined to be made by another Person) to purchase any Stock of such Tax Equity JV from any other Person and (ii) such contractual right is exercisable by such Group Member at such time or will be exercisable by such Group Member at any time within the following 12 months (whether arising under the applicable Tax Equity Documents or otherwise). “Buyout L/C” means (a) the letters of credit set forth on Part I of Schedule 1.01D and/or (b) any other irrevocable, transferable, standby letter(s) of credit issued by an Acceptable L/C Issuer in favor of the Collateral Agent (for the benefit of the Secured Parties) as beneficiary, which (i) provides the Collateral Agent with the right to draw such Buyout L/C (x) whenever amounts would otherwise be required to be withdrawn from the Buyout Reserve Account, (y) in full if less than 15 days remain until the stated expiry of such Buyout L/C and (z) in full if any LC Default has occurred and is continuing in respect of such Buyout L/C, (ii) will have an expiration date of no later than the first anniversary of its date of issuance, (iii) will indicate by its terms that the proceeds in respect of drawings under such Buyout L/C will be paid directly into the Buyout Reserve Account and (iv) is, at the time of issuance thereof, otherwise in form and substance reasonably acceptable to the Blackstone Representative; provided that in no event shall (1) the aggregate face amount of Buyout L/Cs and DSR L/Cs outstanding (collectively) at any time exceed (2) the amount equal to 10% of the Total Outstandings at such time. “Buyout Price” means, at any time, in respect of any Buyout Eligible JV, the greater of (a) the aggregate amount of purchase consideration the applicable Group Member would be obligated to pay to acquire all Stock subject to any such right of sale and (b) the aggregate amount of purchase consideration the applicable Group Member would be required to pay to acquire all Stock subject to any such purchase right (in each of the preceding (a) and (b), as determined by the Collateral Manager in its commercially reasonable discretion and consistent with the past practices of Holdings and its Affiliates). “Buyout Reserve Account” means the account established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.03(h) hereof. “Buyout Reserve Amount” means, at any time, an amount equal to the sum of the Buyout Prices for each Buyout Eligible JV at such time. “Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease; provided that any obligations of any Group Member either existing on the Closing Date or created prior to any re- characterization described below (i) that were not included on the consolidated balance sheet of
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10 the Borrower as financing or capital lease obligations and (ii) that are subsequently re- characterized as financing or capital lease obligations or indebtedness due to a change in accounting treatment or otherwise, shall for all purposes under this Agreement not be treated as financing or capital lease obligations, Capitalized Lease Obligations or Indebtedness. “Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as financings or capital leases (and, for the avoidance of doubt, not a straight- line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability on a balance sheet in accordance with GAAP; provided, further, that for purposes of calculations made pursuant to the terms of this Agreement or compliance with any covenant, GAAP will be deemed to treat leases in a manner consistent with its current treatment under GAAP as of the Closing Date, notwithstanding any modifications or interpretive changes thereto that may occur thereafter. “Casualty Event” means any event that gives rise to the receipt by any Person of (a) any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property or (b) any Diminution Proceeds. “Casualty Proceeds” means, with respect to any Casualty Event, (a) any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property, in each case which are actually received in cash by a Group Member and (b) any Diminution Proceeds which are actually received in cash by a Group Member. “CFC Holdco” shall mean any direct or indirect Domestic Subsidiary that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) of: (i) one or more “controlled foreign corporations” (within the meaning of Section 957 of the Code), or (ii) other Domestic Subsidiaries that have no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more “controlled foreign corporations” (within the meaning of Section 957 of the Code). “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
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11 “Class” when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. As of the Initial Borrowing Date, there shall be a single Class of Loans and Commitments. Loans and Borrowings hereunder shall also be allocated into Loans or Borrowings (as applicable) of two classes (“Class A” and “Class B”, respectively), each of which shall also be considered a “Class” of Loans or Borrowings. The terms “Borrowing”, “Loan”, “Term Loan”, “Commitment”, “Class A” and “Class B” (and similar terms) may be applied adjectivally in combinations to loans and borrowings hereunder that satisfy the collective requirements of such terms at the relevant time (e.g., references to a “Class A Borrowing” will be to a Borrowing of Loans that are allocated hereunder to Class A; references to a “Class B Commitment” will be to a Commitment to make Loans that are allocated hereunder to Class B; etc.). “Class A Borrowing Percentage” means 100%. “Class B Borrowing Percentage” means a percentage equal to 100% minus the Class A Borrowing Percentage. “Class A Only Lender” has the meaning set forth in Section 2.01(c). “Class B Only Lender” has the meaning set forth in Section 2.01(c). “Clean Energy System” means a solar energy generating installation that uses solar fuel source, in each case, whether commercial, municipal, residential or utility-scale in nature. “Closing Date” means February 15, 2023. “Closing Expense Account” means the account established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.03(b) hereof. “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time. “Collateral” means (i) the “Collateral” as defined in the Security Agreement, (ii) all the “Collateral”, “Pledged Assets” or “Account Collateral” as defined in any other Collateral Document and (iii) any other assets pledged or in which a Lien is granted, in each case, pursuant to any Collateral Document. “Collateral Accounts” means the Debt Service Reserve Account, the Closing Expense Account, the Collection Account, the Reinvestment Account, the Expense Reserve Account, the Equity Account, the Quarterly Payment Date Account, the Buyout Reserve Account, the Payment Account, the Custodial Account and any other deposit account or securities account required to be subject to a Control Agreement hereunder or under the Security Agreement. “Collateral Agent” means U.S. Bank Trust Company, National Association, in its capacity as collateral agent or pledgee in its own name under any of the Loan Documents, or any successor collateral agent.
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12 “Collateral and Guarantee Requirement” means, at any time, the requirement that: (a) the Blackstone Representative, the Administrative Agent and the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date, pursuant to Section 4.01(a)(ii) or from time to time pursuant to Section 6.11 or Section 6.13, subject to the limitations and exceptions of this Agreement, duly executed by each Loan Party party thereto; (b) the Obligations shall have been guaranteed by (i) each Subsidiary of the Borrower (other than Non-Recourse Parties) pursuant to the Guaranty and (ii) the Limited Guarantor pursuant to the Limited Guarantee; (c) the Obligations and the Guaranty shall have been secured pursuant to the Security Agreement by a first-priority security interest, subject to Liens permitted by Section 7.01, in (i) all the Equity Interests of each Loan Party, in each case held by a Loan Party, subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction) and (ii) all the Equity Interests in the Borrower, and in each case the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank; (d) all Pledged Debt owing to any Loan Party (i) that is evidenced by a promissory note with a principal amount in excess of $250,000 or (ii) that, together with all other Pledged Debt evidenced by a promissory note owing to any Loan Party, exceeds an aggregate principal amount of $500,000, shall have been delivered to the Collateral Agent pursuant to the Security Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank, in each case within 30 days after the later of (x) the receipt of such promissory note and (y) the aggregate amount of such Pledged Debt evidenced by a promissory note exceeding $500,000; (e) the Obligations and the Guaranty shall have been secured by a perfected security interest in substantially all now owned or at any time hereafter acquired tangible and intangible assets of each Loan Party (including Equity Interests, intercompany debt, accounts, inventory, equipment, investment property, contract rights, intellectual property, other general intangibles and proceeds of the foregoing), in each case, subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction); (f) except as otherwise contemplated by this Agreement or any Collateral Document, all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements and filings with the United States Patent and Trademark Office and United States Copyright Office, required by the Collateral Documents, applicable Law or reasonably requested by the Blackstone Representative, the Administrative Agent or the Collateral Agent to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents and the other provisions of the term “Collateral and Guarantee Requirement”, shall have been filed, registered or recorded or delivered to the
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13 Blackstone Representative, the Administrative Agent or the Collateral Agent for filing, registration or recording; and (g) after the Closing Date, each Group Member (including each Tax Equity HoldCo but excluding the Tax Equity Parties) that is not a Non-Recourse Party (including, for the avoidance of doubt, any Tax Equity Entity following a Permitted Buyout in respect thereof) shall become a Guarantor pursuant to a Guarantee Assumption Agreement in accordance with Sections 6.11 or 6.13 and a party to the Collateral Documents in accordance with Section 6.11. Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary: (A) the foregoing definition shall not require, unless otherwise stated in this clause (A), the creation or perfection of pledges of, security interests in or taking other actions with respect to the following (collectively, the “Excluded Assets”): (i) (x) commercial tort claims where the amount of damages claimed by the applicable Loan Party is less than $5,000,000 and (y) motor vehicles and other assets subject to certificates of title having an aggregate market value of less than $1,000,000, (ii) any particular asset, if the pledge thereof or the security interest therein is restricted or prohibited by Law (including any requirement to obtain the consent of any governmental authority or third party (other than a Loan Party) unless such consent has been obtained), (iii) Equity Interests in any Person other than the Borrower, any direct or indirect Domestic Subsidiary of the Borrower or any Tax Equity JV (other than to the extent the Equity Interests of such Domestic Subsidiary constitute Excluded Equity Interests), (iv) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in any such license, franchise, charter or authorization is prohibited or restricted thereby after giving effect to the applicable anti- assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition or restriction, (v) the creation or perfection of pledges of, or security interests in, any property or assets that would result in material adverse U.S. federal income tax consequences to the Borrower, any direct or indirect parent entity of the Borrower or any of the Borrower’s direct or indirect Subsidiaries, as reasonably determined by the Collateral Manager with the consent of the Blackstone Representative, (vi) letter of credit rights, except to the extent constituting a supporting obligation for other Collateral as to which perfection of the security interest in such other Collateral is accomplished by the filing of a Uniform Commercial Code financing statement,
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14 (vii) any intent-to-use application trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal Law, (viii) (w) Equity Interests in a Project Company owned by a Tax Equity JV, (x) Equity Interests in a Project Company that are held directly by a Tax Equity Investor, (y) Projects owned directly or indirectly by a Tax Equity JV, and (z) Projects owned directly by a Project Company in which a Tax Equity Investor is a member, (ix) any lease, license, contract, agreement, asset or other general intangible or any property subject to a purchase money security interest, Capitalized Lease Obligation or similar arrangement, in each case permitted under this Agreement, to the extent that a grant of a security interest therein would violate or invalidate such lease, license, contract, agreement, asset or other general intangible, Capitalized Lease Obligations or purchase money arrangement or create a right of termination in favor of any other party thereto (other than a Loan Party) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (x) any particular asset located in or governed by any non-U.S. jurisdiction or agreement (other than stock certificates otherwise required to be pledged, certain material debt otherwise required to be pledged and assets that can be perfected by the filing of a Uniform Commercial Code financing statement), or (xi) any particular assets if the Blackstone Representative and the Borrower reasonably agree in writing that the burden, cost or consequences (including any adverse tax consequences) of creating or perfecting such pledges or security interests therein is excessive in relation to the practical benefits to be obtained therefrom by the Lenders under the Loan Documents. (B) (i) The foregoing definition of “Collateral and Guarantee Requirement” shall not require control agreements, other control arrangements or perfection by “control” with respect to cash, deposit accounts, securities accounts or commodity accounts, including any securities entitlements or related assets on deposit therein or any other Collateral (other than in respect of the Collateral Accounts or the Pledged Equity), (ii) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S., including any IP Rights registered in any non-U.S. jurisdiction, or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (iii) no actions other than the filing of a financing statement under the Uniform Commercial Code shall be required to perfect security interests in any Collateral consisting of notes or other evidence of Indebtedness, except to the extent set forth in clause (d) to the first paragraph of this definition, (iv) no actions other than the filing of Uniform Commercial Code financing statements and the entry into control agreements with respect to the Collateral Accounts shall be required to perfect
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15 security interest in any Collateral consisting of proceeds of other Collateral unless otherwise requested by the Blackstone Representative, (v) no actions shall be required to perfect a security interest in letter of credit rights, other than the filing of a Uniform Commercial Code financing statement unless otherwise requested by the Blackstone Representative, (vi) no landlord waivers, bailee letters, estoppels, warehouseman waivers or other collateral access or similar letters or agreements shall be required and (vii) except to the extent that perfection and priority may be achieved by the filing of a financing statement under the Uniform Commercial Code, the Loan Documents shall not contain any requirements as to perfection or priority with respect to any assets or property described in clause (ii) of this clause (B); (C) the Blackstone Representative in its discretion may grant extensions of time for the creation or perfection of security interests in or taking other actions with respect to, particular assets (including extensions beyond the Closing Date) or any other compliance with the requirements of this definition where it reasonably determines, in consultation with the Borrower, that the creation or perfection of security interests or taking other actions, or any other compliance with the requirements of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents; provided that the Collateral Agent shall have received the items set forth on Schedule 1.01B on or prior to the date(s) set forth therein; and (D) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Collateral Documents. “Collateral Documents” means, collectively, the Security Agreement, each Control Agreement, any Intellectual Property Security Agreement (if in effect), any Guarantee Assumption Agreement, each of the collateral assignments, security agreements, pledge agreements, any other intellectual property security agreements or other similar agreements delivered to the Administrative Agent or the Collateral Agent pursuant to Section 4.01, Section 6.11 or Section 6.13, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties. “Collateral Management Agreement” means the Collateral Management Agreement dated as of the Closing Date between the Borrower and the Collateral Manager, as amended from time to time in accordance with the terms hereof and thereof. “Collateral Manager” means Altus Power America Management, LLC, a Delaware limited liability company, in its capacity as collateral manager under the Collateral Management Agreement, or any successor or assign in such capacity in accordance with this Agreement, the Collateral Management Agreement and the other Loan Documents. “Collateral Manager Termination Event” means (a) the resignation, removal or termination of the Collateral Manager under the Collateral Management Agreement at any time for any reason; or (b) any event shall occur that shall permit the Collateral Manager to be replaced pursuant to the Collateral Management Agreement; or (c) or Collateral Management Agreement expires, is terminated or otherwise for any reason ceases to be in full force and effect.
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16 “Collection Account” means the account established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.02 hereof. “Collections” means, with respect to (a) any Guarantor, all payments or other amounts received by such Guarantor with respect to the Project or Projects owned by such Guarantor (if any) and all other amounts received by such Guarantor (including, without limitation, dividends or distributions of any type from any Person and any proceeds of the Disposition of assets other than Disposition Proceeds), net of any Project Company Expenses actually paid by such Guarantor (provided that any Reinvestment Proceeds received by such Guarantor shall not constitute Collections) and (b) any Tax Equity Party, all cash available for distribution to the Borrower to the extent permitted under the applicable Tax Equity Documents. “Commercial Operation Date” means, with respect to a Project, the date when “substantial completion” (or term of similar import) under the EPC Agreement of such Project has been achieved and all performance testing necessary for such Project to meet the requirements for receiving revenue under the Power Purchase Agreements, tariffs or other similar long-term arrangements has been completed. “Commitment” means, as to each Lender, its obligation to make a Term Loan to the Borrower pursuant to Section 2.01 in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name in Schedule 1.01A under the caption “Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. “Committed Loan Notice” means a notice of a Borrowing pursuant to Section 2.02(a) substantially in the form of Exhibit A or such other form as may be approved by the Blackstone Representative (including any form on an electronic platform or electronic transmission system as shall be approved by the Blackstone Representative), appropriately completed and signed by a Responsible Officer of the Borrower. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. “Compensation Period” has the meaning set forth in Section 2.10(c)(ii). “Compliance Certificate” means a certificate substantially in the form of Exhibit C. “Concentration Limits” means, at any time, a test that shall be satisfied if (i) no individual Rated Investment Grade Customer shall account for more than 25% of the Total Revenues, (ii) no individual Unrated Non-Investment Grade Customer shall account for more than 5% of the Total Revenues, (iii) no three Obligors shall collectively account for more than 45% of the Total Revenues, (iv) Rated Investment Grade Customers, Unrated Creditworthy Customers and Obligors with respect to IG/IGE Subscribed Eligible CS Projects shall collectively account for at least 70% of the Total Revenues and (v) all Obligors in respect of Merchant Projects shall collectively account for less than 17.5% of Total Revenues.
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17 “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “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. “Contribution Agreement” means each Contribution Agreement set forth on Schedule 1.01H and any additional Contribution Agreement as may be entered into from time to time in connection with any Permitted Acquisition. “Control” has the meaning set forth in the definition of “Affiliate”. “Controlling” has a correlative meaning. “Control Agreements” means (a) the Account Control Agreement and (b) any other control agreements entered into by a Loan Party, the Collateral Agent and the Custodian or the Depositary Bank (as applicable), which (1) provides that the Custodian or Depositary Bank (as applicable) shall comply with any entitlement order or other instruction originated by a Loan Party, and, upon delivery of written notice that an Event of Default has occurred, the Collateral Agent (but not, after such notice (unless rescinded), the Borrower) and (2) is otherwise sufficient to establish the Collateral Agent’s control per Section 9-104 or 9-106 (as applicable) of the UCC. “Corporate Trust Office” means: (a) in the case of the Collateral Agent, the corporate trust office of the Collateral Agent and Custodian, currently located at Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; Attention: Global Corporate Trust – APA FINANCE III BORROWER, LLC; email xxxxxxxx.xxxxxxx0@xxxxxx.xxx; (b) in the case of the Administrative Agent, the corporate trust office of the Administrative Agent, currently located at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000; Attention: Global Corporate Trust – APA FINANCE III BORROWER, LLC; email xxxxxx.xxxxxxxx@xxxxxx.xxx; (c) in the case of the Document Custodian, the corporate trust office of the Document Custodian, currently located at 0000 Xxxx Xxx, Xxxxxxxx, XX 00000, Attention: Global Trust Services – APA FINANCE III BORROWER, LLC; email xxxxxx.xxxxxxx@xxxxxx.xxx; or in each case (1) such other address as the Administrative Agent, the Collateral Agent or Document Custodian, as applicable, may designate from time to time by notice to the Borrower, the Blackstone Representative and the Lenders and (2) the principal corporate trust office of any successor Collateral Agent, successor Administrative Agent or successor Document Custodian, as applicable. “Custodial Account” means a custodial account at the Custodian, established in the name of “APA FINANCE III BORROWER, LLC, subject to the lien of the Collateral Agent” pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.04(b) hereof.
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19 not been satisfied, or (ii) pay to the Administrative Agent, the Blackstone Representative or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower, the Blackstone Representative or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s 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 Business Days after written request by the Administrative Agent, the Blackstone Representative or the Borrower, to confirm in writing to the Administrative Agent, the Blackstone Representative and the Borrower that it will comply with its prospective funding obligations hereunder (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, the Blackstone Representative and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest 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. Any determination by the Administrative Agent or the Blackstone Representative that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.12(b)) upon delivery of written notice of such determination to the Borrower and each Lender. “Depositary Bank” means U.S. Bank, in its capacity as depositary bank, or another bank selected by the Borrower and reasonably acceptable to the Blackstone Representative. “Designated Equity Contribution” has the meaning set forth in Section 8.05(a). “Diminution Proceeds” means any cash received by any Group Member in compensation (however designated) for a reduction (whether due to a Casualty Event or otherwise) in the revenue generating potential of any assets of the Borrower or any Project Company. “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale or issuance of Equity Interests in a Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall not be deemed to include any issuance by the Borrower of any of its Equity Interests to another Person.
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20 “Disposition Proceeds” means, with respect to any Material Disposition, all cash proceeds actually received by the Group Members in respect thereof. “Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, event of loss, or asset sale or event of default so long as any rights of the holders thereof upon the occurrence of a change of control, event of loss, asset sale or event of default shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests and other than as a result of a change of control, event of loss, asset sale or event of default so long as any rights of the holders thereof upon the occurrence of a change of control, event of loss, asset sale or event of default shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date at the time of issuance of such Equity Interests; provided that if such Equity Interests are issued pursuant to a plan for the benefit of future, current or former employees, directors, officers, managers or consultants of the Borrower (or any direct or indirect parent thereof) or the Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or the Subsidiaries in order to satisfy applicable statutory or regulatory obligations. “Disqualified Lenders” means (a) those Persons identified by the Borrower (or one of its Affiliates) or the Investors to the Administrative Agent and the Blackstone Representative in writing on or prior to the Closing Date (and such Persons’ Affiliates clearly identifiable as such solely on the basis of their names), (b) competitors (and such competitors’ sponsors and Affiliates identified in writing or clearly identifiable as such solely on the basis of their names) of the Project Companies engaged, directly or indirectly, as one of their principal businesses in owning, leasing (as lessor) and/or operating one or more Clean Energy Systems and separately identified by the Borrower or the Investors to the Administrative Agent and the Blackstone Representative in writing from time to time and (c) any Affiliate of any competitor described in clause (b) that is identified by the Borrower or the Investors to the Administrative Agent and the Blackstone Representative in writing from time to time or reasonably identifiable solely by name as an Affiliate of such Person, other than an Affiliate of such Person that is a Bona Fide Debt Fund; provided that no updates to the Disqualified Lender list shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation in respect of the Loans from continuing to hold or vote such previously acquired assignments and participations on the terms set forth herein for Lenders that are not Disqualified Lenders; provided further that Blackstone Asset Based Finance and each Blackstone Asset Based Finance Entity shall not be deemed a “Disqualified Lender”. Any supplement to the list of Disqualified Lenders pursuant to clause (b) or (c) above shall be made by the Borrower to the Administrative Agent and the Blackstone Representative in writing (including by email) and such supplement shall take effect the same Business Day such notice is received by the Administrative Agent and the Blackstone
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21 Representative. The list of Disqualified Lenders shall be made available to any Lender upon request to the Administrative Agent and the Blackstone Representative, subject to customary confidentiality requirements. “Division” has the meaning set forth in Section 1.09. “Document Custodian” means U.S. Bank National Association, in its capacity as document custodian or any successor thereto. “Dollar” and “$” mean lawful money of the United States. “Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia. “Draft Payment Date Report” has the meaning set forth in Section 9.07. “Drawn Amount” means, at any date of determination, with respect to any Class of Loans, an amount equal to (a) the aggregate face amount of Loans of such Class borrowed under this Agreement on or prior to such date minus (b) the aggregate principal amount of Loans of such Class prepaid pursuant to Section 2.03(a)(i) prior to such date. “DSR L/C” means (a) the letters of credit set forth on Part I of Schedule 1.01D and/or (b) any other irrevocable, transferable, standby letter(s) of credit issued by an Acceptable L/C Issuer in favor of the Collateral Agent (for the benefit of the Secured Parties) as beneficiary, which (i) provides the Collateral Agent with the right to draw such DSR L/C (x) whenever amounts would otherwise be required to be withdrawn from the Debt Service Reserve Account, (y) in full if less than 15 days remain until the stated expiry of such DSR L/C and (z) in full if any LC Default has occurred and is continuing in respect of such DSR L/C, (ii) will have an expiration date of no later than the first anniversary of its date of issuance, (iii) will indicate by its terms that the proceeds in respect of drawings under such DSR L/C will be paid directly into the Debt Service Reserve Account and (iv) is, at the time of issuance thereof, otherwise in form and substance reasonably acceptable to the Blackstone Representative; provided that in no event shall (1) the aggregate face amount of Buyout L/Cs and DSR L/Cs outstanding (collectively) at any time exceed (2) the amount equal to 10% of the Total Outstandings at such time. “DSRA Amount” means (a) on the Initial Borrowing Date $5,423,300 and (b) as of any date of determination thereafter, the next six (6) months of interest scheduled to be payable hereunder after such date of determination in respect of the Term Loans, pursuant to Section 2.06(a). “Due Period” means each period commencing on the day immediately following the last day of the immediately preceding Due Period (or, in the case of the initial Due Period, the period commencing on the Initial Borrowing Date) and ending on (and excluding) the first day of the following Fiscal Quarter (or, in the case of the Due Period in which the Maturity Date would occur, ending on the day preceding the Maturity Date). “Early Amortization Event” means the occurrence of any of the following: (i) the Debt Service Coverage Ratio shall be less than 1.25:1.00 as of the last day of any Test Period
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22 (commencing with the Test Period ending Xxxxx 00, 0000), (xx) a Default pursuant to Section 6.16, (iii) an Event of Default, (iv) on any determination date, if as a result of the replacement of the Lease Services Provider and/or the Maintenance Services Provider of any Project Company, the aggregate Project Company Expenses for all of the Project Companies are more than 20% greater than what the Project Company Expenses would have been for such date had the Lease Services Provider and/or the Maintenance Services Provider for any Project Company not been replaced, (v) the occurrence of the Anticipated Repayment Date or (vi) on the last day of any Fiscal Quarter, the LTV Ratio exceeds the Maximum LTV Ratio. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Eligibility Criteria” means, as to any Project: (a) such Project is commercially operational and the Commercial Operation Date with respect thereto has occurred; (b) such Project is located in (1) the United States or its territories or (2) any other jurisdiction approved by the Blackstone Representative and, in the case of this clause (2), as to which the Rating Condition is satisfied; (c) such Project equipment is provided by suppliers included on the Bloomberg NEF PV Module Tier 1 List (at the time of installation) or other equipment providers selected consistent with the past business practices of Holdings; (d) the Material Project Documents of such Project are based on forms consistent in all material respects with the past business practices of Holdings and are acceptable to the Blackstone Representative in its reasonable discretion; (e) no counterparty to any such Material Project Document is bankrupt at the time of entry into such Material Project Document; (f) such Project has not suffered any Casualty Event; and (g) either: (i) such Project is an Eligible CS Project;
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24 understood that with the consent of the Blackstone Representative and subject to satisfaction of the Rating Condition, such Affiliates may be identified on a standing list of Eligible Hedge Counterparties); and (b) in the case of other Permitted Hedge Agreements, meets the criteria determined as provided in the definition of “Permitted Hedge Agreement” with respect thereto. “Eligible Investment” means any investment that, at the time it, or evidence of it, is acquired by the Borrower (directly or through an intermediary or bailee), is either cash or one or more of the following obligations or securities (in each case denominated in Dollars): (a) direct debt obligations of, and debt obligations the timely payment of principal and interest on which is fully and expressly guaranteed by, the United States of America or any agency or instrumentality of the United States of America the obligations of which are expressly backed by the full faith and credit of the United States of America that satisfies the Eligible Investment Required Ratings at the time of such investment or contractual commitment providing for such investment; (b) demand and time deposits in, certificates of deposit of, trust accounts with, bankers’ acceptances issued by, or federal funds sold by any depository institution or trust company incorporated under the laws of the United States of America (including U.S. Bank) or any state thereof and subject to supervision and examination by federal and/or state banking authorities, in each case payable within 183 days of issuance, so long as the commercial paper and/or the debt obligations of such depository institution or trust company (or, in the case of the principal depository institution in a holding company system, the commercial paper or debt obligations of such holding company) at the time of such investment or contractual commitment providing for such investment have the Eligible Investment Required Ratings; and (c) money market funds which funds have, at all times, credit ratings “AAAm” by S&P; subject, in each case, to such obligations or securities having a maturity date not later than the earlier of (A) the date that is 60 days after the date of delivery thereof and (B) the Business Day immediately preceding the Payment Date immediately following the date of delivery thereof; provided that Eligible Investments shall not include (1) any interest-only security, any security purchased at a price in excess of 100% of the par value thereof or any security whose repayment is subject to substantial non-credit related risk as determined in the sole judgment of the Collateral Manager, (2) any security whose rating assigned by S&P includes the subscript “f”, “p”, “q”, “pi”, “r”, “sf” or “t”, (3) any security that is subject to an Offer, (4) any security secured by real property or (5) any obligation or security the after tax yield of which is less than or equal to zero. Eligible Investments may include those investments with respect to which U.S. Bank or an Affiliate of U.S. Bank is an obligor or provides services. “Eligible Investment Required Ratings” means a long-term senior unsecured debt rating of at least “A” and a short-term credit rating of at least “A-1” by S&P (or, if such institution has no short-term credit rating, a long-term senior unsecured debt rating of at least “A+” by S&P).
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25 “Eligible Project” means any Project that satisfies the Eligibility Criteria. “Eligible Project Company” means (a) any Person which (1) owns one or more Eligible Projects and owns no Projects which are not Eligible Projects, (2) satisfies the Special Purpose Requirements and (3) has no Indebtedness other than Permitted Indebtedness (after giving effect to any related Permitted Acquisition) and (b) any other Person that (i) is the owner, lessor and/or operator of one or more Clean Energy Systems and (ii) is consented to by the Required Lenders. “Enforcement Priority of Payments” has the meaning set forth in Section 8.04. “Environment” means the indoor or outdoor environment, including indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna. “Environmental Laws” means any applicable Law relating to the prevention of pollution or the protection of the Environment and natural resources or the protection of human health and safety to the extent related to exposure to Hazardous Materials, including any applicable Laws relating to the generation, use, handling, transportation, storage, treatment, disposal, Release, or threatened Release of, or exposure to, any Hazardous Materials. “Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, or penalties), of the Loan Parties or any Project Company directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials in violation of Environmental Laws, (c) exposure to any Hazardous Materials, or (d) the Release or threatened Release of any Hazardous Materials into the Environment that requires remedial action under Environmental Law. “Environmental Permit” means any Permit required under any Environmental Law. “EPC Agreement” means, with respect to a Project, the document identified as the EPC Agreement for such Project, and which EPC Agreement shall be in a form consistent in all material respects with Holdings’ past business practices and acceptable to the Blackstone Representative in its reasonable discretion. “Equity Account” means the account established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.03(f) hereof. “Equity Contribution” means, collectively, the equity contributions of cash made by the Investors in the Loan Parties on and after the Closing Date. “Equity Holder” has the meaning set forth in the introductory paragraph to this Agreement. “Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the
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26 purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities). “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. “ERISA Affiliate” means (a) any trade or business (whether or not incorporated) that, together with a Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code or (b) any entity (whether or not incorporated) that is under common control within the meaning of Section 4001(a)(14) of ERISA with a Loan Party. “ERISA Event” means (a) a Reportable Event; (b) a withdrawal by a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan; (d) the filing by the PBGC of a notice of intent to terminate any Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or Section 4041A of ERISA, respectively, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of or the appointment of a trustee to administer any Pension Plan or Multiemployer Plan; (f) with respect to a Pension Plan, the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (g) assuming no Lender funds any portion of the Loan with Plan Assets, the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to a Loan Party; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “Event of Default” has the meaning set forth in Section 8.01. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Excluded Assets” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”. “Excluded Equity Interests” means (a) any Equity Interests in any Tax Equity Party or Lessee, (b) any Equity Interests with respect to which, in the reasonable judgment of the Blackstone Representative and the Borrower, the cost or other consequences of pledging such Equity Interests in favor of the Secured Parties under the Collateral Documents shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom, (c) any Equity Interests to the extent the pledge thereof would (x) be prohibited by any applicable Law (whether on the Closing Date or thereafter) or Contractual Obligations (other than customary non-assignment
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27 provisions which are ineffective under the UCC or other applicable Law) existing on the Closing Date (or, in the case of any newly acquired Subsidiary, in existence at the time of acquisition but not entered into in contemplation thereof), (y) require governmental (including regulatory) or other third party (other than the Borrower) consent, approval, license or authorization (unless such consent, approval, license or authorization has been obtained; it being understood that the foregoing shall not be deemed to obligate any Loan Party or any Subsidiary to obtain any such consent) or (z) give any other party (other than the Borrower) to any Contractual Obligations governing such Equity Interests the right to terminate its obligations thereunder (other than customary non-assignment provisions that are ineffective under the UCC or other applicable Law), (d) any Equity Interests of any Subsidiary to the extent that the pledge of such Equity Interests would result in material adverse tax consequences to the Borrower, any direct or indirect parent entity of the Borrower or any of the Borrower’s direct or indirect Subsidiaries, in each case, as reasonably determined by the Collateral Manager with the consent of the Blackstone Representative, (e) any Equity Interests in any captive insurance subsidiaries, (f) any Equity Interests of any Subsidiary of the Borrower or any Guarantor that is a CFC Holdco, other than 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of any such CFC Holdco and (g) any Equity Interests in a Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary or CFC Holdco. “Excluded Subsidiary” means (a) any direct or indirect Subsidiary of the Borrower that does not have total assets with an aggregate value in excess of $100,000; provided that all Subsidiaries excluded pursuant to this clause (a) shall not have total assets in an aggregate value in excess of $500,000 collectively, (b) any Tax Equity Party, (c) any Subsidiary that is prohibited by applicable Law (whether on the Closing Date or thereafter) or Contractual Obligations existing on the Closing Date from guaranteeing the Obligations or if guaranteeing the Obligation would require governmental (including regulatory) or other third-party (other than a Loan Party) consent, approval, license or authorization (unless such consent, approval, license or authorization has been obtained), (d) any other Subsidiary with respect to which the Blackstone Representative and the Borrower mutually agree that the burden or cost or other consequences (including any material adverse tax consequences) of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (e) any direct or indirect Foreign Subsidiary of the Borrower, (f) any CFC Holdco, (g) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary or CFC Holdco, (h) any Subsidiary with respect to which the provision of a guarantee by it would result in material adverse tax consequences to the Borrower, any direct or indirect parent entity of the Borrower or any of the Borrower’s direct or indirect Subsidiaries, in each case, as reasonably determined by the Collateral Manager with the consent of the Blackstone Representative and (i) any Specified Development Entity; provided that for the avoidance of doubt, at the option of the Borrower, any Excluded Subsidiary that is a Domestic Subsidiary may issue a Guaranty and become a Guarantor as described in clause (ii) of the definition of “Guarantors” (including with respect to any Specified Development Entity, to the extent such Specified Development Entity is commercially operational and the Commercial Operation Date with respect thereto has occurred). “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Agent or any Lender or required to be withheld or deducted from a payment to any Agent or Lender: (a) Taxes imposed on or measured by net income (however denominated), franchise
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28 Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United States withholding taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.01(f) or Section 3.04) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01, amounts with respect to such Taxes were payable either to such Xxxxxx’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to a Lender’s or the Administrative Agent’s failure to comply with Section 3.01(e) or Section 3.01(g), and (d) any withholding Taxes imposed under FATCA. “Existing Account” has the meaning set forth in Section 4.01(a)(xii). “Existing Investments” means the Investments existing or contemplated on the Closing Date and set forth on Schedule 7.02(e). “Expense Reserve Account” means the account at the Custodian established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.03(d) hereof. “Expense Reserve Amount” means $150,000. “Extraordinary Receipts” means any cash received by the Borrower or any Project Company not in the ordinary course of business (and not consisting of proceeds relating to a Disposition otherwise subject to Section 2.03(b)(ii) or Casualty Event otherwise subject to Section 2.03(b)(iv) or of proceeds described in Section 2.03(b)(iii) or Section 2.03(b)(vii) of this Agreement) consisting of (a) proceeds of judgments, proceeds of settlements, or other consideration of any kind received in connection with any cause of action or claim, (b) indemnity payments (other than to the extent such indemnity payments are immediately payable to a Person that is not an Affiliate of the Borrower or any Project Company), (c) any purchase price adjustment (other than working capital and other similar adjustments made pursuant to any acquisition document and/or indemnification payments made pursuant to any acquisition document) or (d) any proceeds of tax equity investments in Project Companies (other than tax equity investments anticipated as of the Closing Date and included on Schedule 1.01F) or Indebtedness for borrowed money incurred by Project Companies; provided that an Extraordinary Receipt shall not include (1) any business interruption insurance proceeds, cash receipts from proceeds of insurance or indemnity payments to the extent that such proceeds or payments are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto or (2) any Diminution Proceeds. “Facility” means the Term Loans.
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29 “FATCA” means Sections 1471 through 1474 of the Code (including, for the avoidance of doubt, any agreements entered into pursuant to Section 1471(b)(1) of the Code), as of the Closing Date (and any amended or successor version thereof to the extent substantively comparable and not materially more onerous to comply with), any current or future Treasury Regulations or other official administrative guidance promulgated thereunder, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing. “Federal Funds Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published for any day that is a Business Day, the average of the quotations for the day for such transactions as determined by the Blackstone Representative. “Financial Performance Covenant” means the covenant of the Borrower set forth in Section 7.09. “Fiscal Quarter” means each fiscal quarter of the Borrower, which as of the Closing Date is each calendar quarter. “Fitch” means Fitch Ratings, Ltd., or any successor to the ratings agency business thereof. “Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower which is not a Domestic Subsidiary. “Forward Project Collections” means, at any time with respect to any Project Company, an amount equal to (as reasonably projected in good faith by the Collateral Manager for the applicable period) the expected future Collections of such Project Company. “FRB” means the Board of Governors of the Federal Reserve System of the United States. “Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course. “Funded Buyout Reserve” means, as of any date of determination, the sum of (x) the balance of cash on deposit in the Buyout Reserve Account on such date and (y) all Available Draw Amounts in respect of all Buyout L/Cs at such date. “Funded DSR” means, as of any date of determination, the sum of (x) the balance of cash on deposit in the Debt Service Reserve Account on such date and (y) all Available Draw Amounts in respect of all DSR L/Cs at such date.
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30 “GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that (i) if the Borrower notifies the Blackstone Representative that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change in accounting principles or change as a result of the adoption or modification of accounting policies (including, but not limited to, the impact of Accounting Standards Update 2016-12, Revenue from Contracts with Customers (Topic 606) or similar revenue recognition policies or any change in the methodology of calculating reserves for returns, rebates and other chargebacks) occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Blackstone Representative notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith, (ii) GAAP shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB Accounting Standards Codification Topic 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any of its Subsidiaries at “fair value,” as defined therein, and Indebtedness shall be measured at the aggregate principal amount thereof, and (iii) the accounting for operating leases and financing or capital leases under GAAP as in effect on the Closing Date (including, without limitation, FASB Accounting Standards Codification 840) shall apply for the purposes of determining compliance with the provisions of this Agreement, including the definition of Capitalized Leases and obligations in respect thereof. “Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity, exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. “Group Member” means each of the Borrower, each other Loan Party, each other Subsidiary of a Loan Party and each Tax Equity Party, in each case existing on or after Closing Date; and the “Group Members” means all Group Members, collectively. “Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any
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31 Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or is then in effect or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. “Guarantee Assumption Agreement” means the “Guarantee Assumption Agreement” as defined in the Security Agreement. “Guarantee Trigger Event” shall be deemed to occur if at any time all or any part of the “Guaranteed Obligations” (as defined in the Limited Guarantee) shall not be punctually paid when due by the applicable Loan Party. “Guarantors” means, collectively, (i) the Domestic Subsidiaries of the Borrower (other than any Excluded Subsidiary) and (ii) those Domestic Subsidiaries of the Borrower that issue a Guaranty of the Obligations after the Closing Date pursuant to Section 6.11 or any other Person (including any Excluded Subsidiary) organized under the laws of the United States, any state thereof or the District of Columbia that, at the option of the Borrower, issues a Guaranty of the Obligations after the Closing Date, in each case, until the Guaranty thereof is released in accordance with this Agreement. “Guaranty” means, the guaranty of the Obligations by the Guarantors pursuant to the Security Agreement. “Hazardous Materials” means all materials, contaminants, chemicals, substances or wastes, in any form, including petroleum or petroleum distillates, explosives, radioactive materials, friable asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas or toxic mold, in each case that are regulated by any Governmental Authority under Environmental Laws because of their hazardous or toxic properties, qualities or characteristics. “Hedge Counterparty” means any Eligible Hedge Counterparty that is party to a Permitted Hedge Agreement with any Loan Party. “Holdings” means Altus Power, Inc., a Delaware corporation (formerly known as Altus Power America, Inc.). “IG/IGE Subscribed Eligible CS Project” means an Eligible CS Project with at least 49% of the nameplate capacity subscribed by Rated Investment Grade Customers or Unrated Creditworthy Customers.
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32 “Increased Costs” means any amounts due pursuant to Section 3.02. “Indebtedness” means, as to any Person at a particular time, without duplication, all of the following: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person; (c) net obligations of such Person under any Swap Contract; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts and accrued expenses payable in the ordinary course of business, (ii) any earn out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and (iii) accruals for payroll and other liabilities accrued in the ordinary course); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) all Attributable Indebtedness; (g) all obligations of such Person in respect of Disqualified Equity Interests; and (h) to the extent not otherwise included above, all Guarantees made by such Person in respect of any Indebtedness of any other Person. For all purposes hereof, the Indebtedness of any Person shall (i) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise expressly limited and (ii) exclude obligations under or in respect of Non-Capitalized Lease Obligations (to the extent they are treated as operating leases in the most recent financial statements in existence on the Closing Date), straight-line leases, operating leases or sale lease-back transactions (except any resulting Capitalized Lease Obligations). The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. “Indemnified Liabilities” has the meaning set forth in Section 11.05.
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33 “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes. “Indemnitees” has the meaning set forth in Section 11.05. “Independent Director” means a natural person who (A) for the five-year period prior to his or her appointment as Independent Director, has not been, and during the continuation of his or her service as Independent Director is not: (a) an employee, director, stockholder, member, manager, partner or officer of the Borrower or any of its Affiliates (other than his or her service as an Independent Director or independent manager or special member of the Borrower or Affiliates of the Borrower); (b) a customer or supplier of the Borrower or any of its Affiliates (other than a nationally-recognized company that routinely provides professional independent managers and other corporate services to the Borrower or any of its equityholders or Affiliates in the ordinary course of business); or (c) any member of the immediate family of a Person described in clause (a) or (b); and (B) has (1) prior experience as an Independent Director for a corporation, limited liability company or limited partnership whose charter documents required the unanimous consent of all Independent Directors thereof before such corporation, limited liability company, or limited partnership could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy; and (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. “Ineligible Non-Recourse Party” means, at any time of determination, any Group Member that is not a Loan Party or a Non-Recourse Party, in each case until such time as such Person becomes a Loan Party or a Non-Recourse Party. “Information” has the meaning set forth in Section 11.08. “Initial Borrowing Date” means the date of the initial Term Borrowing. “Initial Borrowing Date Equity Contribution” means the Equity Contribution made to the Borrower on the Initial Borrowing Date. “Initial CS Projects” has the meaning set forth in the definition of “Acceptable CS Customers”. “Initial Draw Period” has the meaning set forth in the definition of “Term Loan Commitment Expiration Date”. “Intellectual Property Security Agreement” means, an Intellectual Property Security Agreement among the Borrower, certain Subsidiaries of the Borrower and the Collateral Agent in such form that is reasonably acceptable to the Blackstone Representative and the Collateral Agent. “Intercompany Investment” means any Investment by the Borrower in any Group Member solely for application towards one or more Eligible Projects owned by such Group Member.
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34 “Interest Payment Date” means (a) the eighth Business Day following the end of each Due Period and (b) the Maturity Date. “Interest Payment Date Priority of Payments” has the meaning set forth in Section 9.08(a)(i). “Interest Rate” means: (i) In the case of Class A Loans made during the Initial Draw Period, a rate per annum equal 5.62%; (ii) In the case of Class A Loans made during the Subsequent Draw Period, a rate per annum (determined by Blackstone Asset Based Finance in good faith) equal to the ten (10) year Treasury Rate on the date that is seven (7) Business Days prior to such Borrowing Date plus 2.75%; and (iii) In the case of Class B Loans, a rate per annum (determined by Blackstone Asset Based Finance in good faith) equal to the 10 year Treasury Rate on the date that is seven (7) Business Days prior to such Borrowing Date plus an amount to be determined by Blackstone Asset Based Finance in its sole and absolute discretion. “Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment. “Investors” means, at any time, (a) the Sponsors (provided that each of the Sponsors shall only be considered an “Investor” hereunder if such Sponsor holds, directly or indirectly, Equity Interests in the Borrower or Holdings at such time) and (b) officers, directors, employees and other members of management (or their respective investment Affiliates, estates or family members) of the Borrower or Holdings who are or who become holders, directly or indirectly, of the Equity Interests of the Borrower or Holdings. “IP Rights” means the right to use all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, licenses, technology, software, know-how, database rights, design rights and other intellectual property rights. “Junior Replacement Collateral Management Fees” means a fee payable in arrears on each Payment Date (commencing with the first such Payment Date following the date on which a Replacement Collateral Manager has become the Collateral Manager) to the Replacement Collateral Manager, in accordance with the Priority of Payments, as compensation for rendering its services under the Collateral Management Agreement, in an amount together with the Senior
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35 Replacement Management Fees not to exceed 0.50% per annum (unless the Required Lenders consent to a greater fee and such greater Junior Replacement Collateral Management Fee satisfies the Rating Condition) of the Total Outstandings. “KBRA” means Xxxxx Bond Rating Agency, LLC, together with its successors. “KYC” has the meaning set forth in Section 4.01(g). “Laws” means, collectively, all international, foreign, federal, state and local laws (including common laws), statutes, treaties, rules, legally binding guidelines, regulations, ordinances, codes and administrative or judicial precedents, orders, decrees, injunctions or authorities, including the legally binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority. “LC Default” means, with respect to an outstanding DSR L/C or Buyout L/Cs, as the case may be, the occurrence of any of the following events: (a) the issuer of such letter of credit shall fail to be an Acceptable L/C Issuer; (b) the issuer of such letter of credit shall fail to comply with or perform its obligations under such letter of credit in accordance with its terms; (c) the issuer of such letter of credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such letter of credit; (d) such letter of credit shall have less than 15 days remaining prior to the date of expiration and has not been drawn in full; (e) such letter of credit shall expire or terminate pursuant to its terms and conditions, or shall fail or cease to be in full force and effect at any time during the term of this Agreement; or (f) any bankruptcy or insolvency event (to be defined) shall occur with respect to the issuer of the letter of credit. “Lease Services Provider” means: (a) with respect to any Project owned by a Group Member on the Closing Date, the lease services provider (if any) identified in the Material Project Documents with respect to such Project as at the Closing Date; and (b) with respect to any Project acquired or invested in by a Group Member after the Closing Date, the lease services provider (if any) identified in the Notice of New Project with respect to such Project. “Lender” has the meaning set forth in the introductory paragraph to this Agreement, and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender”, excluding, for the avoidance of doubt, any Disqualified Xxxxxx. “Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Xxxxxx’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent. “Lessee” means the lessee under a tax equity investment structured as an inverted lease.
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36 “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing). “Limited Guarantee” means the Non-Recourse Carve-Out Guarantee substantially in the form of Exhibit H, dated as of the Closing Date, among the Limited Guarantor and the Collateral Agent. “Limited Guarantor” means Holdings. “Loan” or “Term Loan” means the loans made by the Lenders to the Borrower pursuant to Section 2.01 on the Borrowing Dates. “Loan Documents” means, collectively, (a) this Agreement, (b) the Collateral Management Agreement, (c) the Notes, (d) the Collateral Documents, (e) the Limited Guarantee, (f) the Agent Fee Letter, (g) the Upfront Fee Letter, (h) the Blackstone Representative Side Letter and (i) the Contribution Agreement. “Loan Parties” means, collectively, the Borrower, the Equity Holder and each Guarantor. “LTV Calculation Spreadsheet” means that certain excel spreadsheet (as it may be modified or amended from time to time with the written agreement of the Borrower and the Blackstone Representative) titled “Altus Base_TGC III 2022 Model_v25” and delivered by the Borrower to the Blackstone Representative on or prior to the Closing Date setting forth, solely for the purposes of demonstration, the manner in which the Collateral Manager shall calculate the LTV Ratio from time to time; provided that, to the extent the Rating Agency modifies its assumptions or methodologies in a manner that affects the calculation of the LTV Ratio hereunder (including, without limitation, in connection with the evaluation of a Rating Condition, any extension of Loans, or surveillance actions) and the result of such modifications would be to reduce or lower the LTV Ratio, then the Blackstone Representative shall be permitted, in its sole discretion, to update the LTV Calculation Spreadsheet to reflect any such modification or modifications (each such update, a “LTV Recalculation”), in each case with prompt notice to, but without the consent of, the Borrower, any other Loan Party or the Collateral Manager. For the avoidance of doubt, the outputs shown in the LTV Calculation Spreadsheet are not, and are not intended to be, projections of any kind, and the LTV Calculation Spreadsheet shall serve only to demonstrate the methods and formulas pursuant to which the Collateral Manager shall calculate the LTV Ratio from time to time. “LTV Ratio” means, as of any date of determination, the ratio (expressed as a percentage) of (a) Total Outstandings divided by (b) the present value at such time, computed on such date using a discount rate equal to 6.0% per annum, of all Forward Project Collections, including from the sale of SRECs and other renewable energy credits, of each Project Company, in each case calculated by the Collateral Manager in a manner consistent with the LTV Calculation Spreadsheet and verified by the Blackstone Representative in good faith (for the avoidance of doubt, it being
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37 understood that (x) such calculation shall be made assuming that a Permitted Buyout is made in respect of each Tax Equity JV at the time that it becomes a Buyout Eligible JV and (y) such Tax Equity JV and all Tax Equity Parties owned by such Tax Equity JV shall thereafter be assumed to be Guarantors hereunder for the purposes of calculating the “Forward Project Collections” applicable thereto); provided that for any Project Company where Collections received by the related Group Member are delinquent for a period of 180 consecutive days, the Forward Project Collections with respect to such Project Company shall be excluded from clause (b) of the calculation of “LTV Ratio”, until such time as such Collections are current for a period of 90 consecutive days, in each case as reported by the Collateral Manager to the Blackstone Representative (and evaluated by the Blackstone Representative in good faith), or unless as otherwise agreed by Blackstone Representative. “LTV Recalculation” has the mean assigned to such term in the definition of “LTV Calculation Spreadsheet”. “Maintenance Services Provider” means: (a) with respect to any Project owned by a Group Member on the Closing Date, the maintenance services provider (if any) identified in the Material Project Documents with respect to such Project as at the Closing Date; and (b) with respect to any Project acquired or invested in by a Group Member after the Closing Date, the maintenance services provider (if any) identified in the Notice of New Project with respect to such Project. “Make-Whole Amount” means, with respect to any voluntary prepayment of any Class of Term Loans pursuant to Section 2.03, the present value at such time, computed on such prepayment date using a discount rate equal to Treasury Rate plus 0.50%, of an amount equal to the amount of interest which would have accrued on the principal balance of the applicable Term Loan being prepaid from the date of prepayment through the date that is three (3) years after the Closing Date; provided that no Make-Whole Amount shall be due in respect of any voluntary prepayment made following the date that is three (3) years after the Closing Date. “Management Fees” has the meaning assigned to such term in the Collateral Management Agreement. “Management Standard” has the meaning assigned to such term in the Collateral Management Agreement. “Margin Stock” has the meaning set forth in Regulation U issued by the FRB. “Master Agreement” has the meaning set forth in the definition of “Swap Contract”. “Material Action” means to: (a) file or consent to the filing of any bankruptcy, insolvency or reorganization petition under any applicable federal, state or other law relating to a bankruptcy naming the Borrower as debtor or other initiation of bankruptcy or insolvency proceedings by or against the Borrower, or otherwise seek, with respect to the Borrower, relief under any laws relating to the relief from debts or the protection of debtors generally; (b) seek or consent to the
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38 appointment of a receiver, liquidator, conservator, assignee, trustee, sequestrator, custodian or any similar official for the Borrower or all or any portion of its properties; (c) make or consent to any assignment for the benefit of the Borrower’s creditors generally; (d) admit in writing the inability of the Borrower to pay its debts generally as they become due; (e) petition for or consent to substantive consolidation of the Borrower with any other person; (f) amend or alter or otherwise modify or remove all or any part of Section 6.3, 13, 15 or 16 or Exhibit A of the Organizational Documents of the Borrower; or (g) amend, alter or otherwise modify or remove all or any part of the definition of “Independent Director” or the definition of “Bankruptcy Action” (or any similar or analogous term or provision) in the Organizational Documents of the Borrower. “Material Adverse Effect” means (a) a material adverse effect on (i) the business, operations, assets, liabilities (actual or contingent) or financial condition of the Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the Loan Parties (taken as a whole) to fully and timely perform their payment obligations under the Loan Documents, or (iii) the material rights and remedies available to the Lenders and Agents, taken as a whole under the Loan Documents. “Material Disposition” means any Disposition made or to be made by any Group Member (a) that is not in the ordinary course of business of the Group Members or (b) for which the aggregate purchase consideration payable in respect of such Material Disposition is greater than $5,000,000. “Material Project Documents” means, with respect to each Project, the EPC Agreement, Asset Management Agreement, interconnection agreement, the site lease agreements, O&M agreement, development services agreement, the applicable Tax Equity Documents, any customer management agreements, Power Purchase Agreements, tariffs or other offtake agreements, and SREC Agreements, as applicable to such Project and any replacements of or parent or performance guarantees for such documents in each case entered into in accordance with this Agreement. “Material Project Participants” means the counterparties to any Material Project Document (as in effect on the Closing Date or thereafter); provided 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. “Maturity Date” means October 31, 2047. “Maximum LTV Ratio” means at any time, 80%. “Maximum Rate” has the meaning set forth in Section 11.10. “Merchant Project” means a Project that sells its energy output into a wholesale power market. “Money” shall have the meaning specified in Section 1-201(24) of the UCC. “Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
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39 “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions. “NAIC” means the National Association of Insurance Commissioners. “Net Proceeds” means: (a) With respect to any Casualty Proceeds, Extraordinary Receipts or Disposition Proceeds, one hundred percent (100.0%) of such cash proceeds actually received, in each case net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by a Lien on the asset subject to such Disposition or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents), (iii) in the case of any Disposition Proceeds, Casualty Proceeds or Extraordinary Receipts received by a Tax Equity JV or any Subsidiary thereof, all amounts not available for distribution to or for the account of the Borrower or a wholly owned Subsidiary under the terms of the applicable Tax Equity Documents, (iv) Taxes paid or reasonably estimated to be payable as a result thereof (including any Permitted Tax Distributions), and (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any Subsidiary including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition occurring on the date of such reduction); and(b) one hundred percent (100.0%) of the cash proceeds from the incurrence or issuance of Indebtedness which is not expressly permitted under this Agreement. For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to any Group Member or Affiliate thereof shall be disregarded. “New Project” means each new Project that becomes such in accordance with this Agreement. “Non-Capitalized Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight- line or operating lease shall be considered a Non-Capitalized Lease Obligation. “Non-Consenting Lender” has the meaning set forth in Section 3.04(c). “Non-Debt Fund Affiliate” means any Affiliate of the Investors other than (a) the Borrower or a Subsidiary of the Borrower, (b) any Debt Fund Affiliates and (c) any natural person.
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40 “Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender. “Non-Recourse Conditions” means: (a) with respect to any Tax Equity JV, such Tax Equity JV (1) is the direct or indirect owner of all of the Stock in one or more Project Companies, each of which meets the qualifications set forth in clause (ii) below, (2) has no Subsidiaries other than Subsidiaries that each meet the qualifications set forth in clause (ii) below, (3) owns no assets (including Stock in any Person other than those described in the preceding clause (2)) other than those assets necessary for the ownership, leasing, development, construction or operation of Clean Energy Systems, (4) has no Indebtedness other than Permitted Indebtedness and (5) is restricted or prohibited by the terms of its Tax Equity Documents from pledging its assets in favor of the Secured Parties to secure the Obligations; and (b) with respect to any Project Company, such Project Company (1) is the owner, lessor and/or operator of one or more Clean Energy Systems, (2) is a wholly-owned Subsidiary of a Tax Equity JV, (3) has no Subsidiaries and owns no assets (including Stock in any Person) other than those assets necessary for the ownership, leasing, development, construction or operation of such Clean Energy Systems, (4) has no Indebtedness other than Permitted Indebtedness and (5) satisfies the Special Purpose Requirements. “Non-Recourse Party” means, at any time of determination, any Tax Equity JV or Project Company that (in each case) (a) is requested by the Borrower in writing to be designated as a Non- Recourse Party (which writing shall include a certification that such Person satisfies the Non- Recourse Conditions) or is identified on Schedule 5.12 and (b) satisfies the Non-Recourse Conditions at the time of any such designation or identification and at all times thereafter; provided that if at any time any Person that was previously designated or deemed designated as a Non- Recourse Party in accordance with this definition ceases to satisfy the Non-Recourse Conditions, then such Person shall immediately cease to be a Non-Recourse Party for purposes of this Agreement and shall automatically be deemed to be an Ineligible Non-Recourse Party. “Non-Recourse Project Indebtedness” means Indebtedness of a Project Company owed to third-party creditors with respect to which the creditors have no recourse (including by virtue of a Lien, guarantee or otherwise) to the Borrower or any other Loan Party other than recourse (a) under a Project MIPA entered into by the Borrower or any other Loan Party in connection with the acquisition of such Project Company, (b) by virtue of rights of such Project Company under a Project Obligation collaterally assigned to such creditor, which rights may be exercised pursuant to the terms of such Project Obligation against a Loan Party that is party to such Project Obligation or (c) pursuant to Permitted Project Undertakings or Permitted Equity Commitments. “Not Otherwise Applied” means, with reference to any amount of net proceeds of any transaction or event, that such amount was not previously (and is not concurrently being) applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was or is (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose. The Borrower shall promptly notify the Administrative Agent of any application of such amount as contemplated by this definition.
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41 “Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit B-1 (in the case of Class A Loans) or Exhibit B-2 (in the case of Class B Loans), evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Term Loans of the applicable Class made by such Lender. “Notice of New Project” means the notice delivered pursuant to Section 6.02(l) substantially in the form of Exhibit M to this Agreement certifying that the applicable Project is commercially operational and that the Commercial Operation Date has occurred, identifying the relevant Lease Services Provider or Maintenance Services Provider and attaching all Material Project Documents (including, if applicable, the initial Power Purchase Agreement) for such Project. “NRSRO” means a rating organization that the Securities and Exchange Commission recognizes as a nationally recognized statistical rating organization. “NYFRB” means the Federal Reserve Bank of New York. “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Subsidiaries arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or its Subsidiaries of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Subsidiaries to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document, in each such case, to the extent that any of the foregoing are required to be paid under the Loan Documents. “Obligor” means any counterparty to a Power Purchase Agreement or counterparty to the subscription agreements under any community solar program (which, for the avoidance of doubt, shall be limited to a single system interconnection comprising a single site). “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Offer” means with respect to any security, any offer by the issuer of such security or by any other Person made to all of the holders of such security to purchase or otherwise acquire such security (other than pursuant to any redemption in accordance with the terms of the security or for the purpose of registering such security) or to convert or exchange such security into or for cash, securities or any other type of consideration. “Operative Documents” means the Loan Documents and the Material Project Documents. “Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
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42 respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity. “Other Connection Taxes” means, with respect to any Agent or any Lender, Taxes imposed as a result of a present or former connection between such Agent or such Lender and the jurisdiction imposing such tax (other than connections arising solely from the such Agent or such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.01(f)). “Outstanding Amount” means, with respect to any Class or Classes of Loans on any date, the aggregate outstanding principal amount of such Loans after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date. “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate). “Participant” has the meaning set forth in Section 11.07(f). “Participant Register” has the meaning set forth in Section 11.07(f). “Payee Information” means, for any payment to be made under the Priority of Payments or otherwise hereunder, the identity of each payee and applicable wire transfer instructions, all in sufficient detail and with such supporting information and materials as is needed to enable payment to the intended recipient thereof. “Payment Account” means the payment account at the Custodian established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.03(a) hereof. “Payment Date” means each Interest Payment Date and each Quarterly Payment Date.
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43 “Payment Date Report” has the meaning set forth in Section 9.07. “Payment in Full” means the payment in full of the Loans and all other Obligations (other than contingent reimbursement obligations) that are accrued and payable and the termination of the Commitments. “Payment or Bankruptcy Default” means an Event of Default under Section 8.01(a), (f) or (g). “PBGC” means the Pension Benefit Guaranty Corporation. “Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years. “Perfection Certificate” means a certificate in the form of Exhibit G hereto or any other form reasonably approved by the Blackstone Representative and the Collateral Agent, as the same shall be supplemented from time to time. “Permit” means any permit, approval, consent, filing, notice, waiver, exemption, certification, registration, license, approval or other authorization required or issued under any Law. “Permitted Acquisition” means any acquisition of (a) an Eligible Project Company or (b) any Project that satisfies the Eligibility Criteria; provided that, (1) such acquisition is governed by a Project MIPA, (2) no Default, Event of Default or Early Amortization Event has occurred and is continuing or would result therefrom, (3) prior to effectiveness of such Permitted Acquisition, appropriate documentation (including, without limitation, payoff letters and related documents) is provided to the Blackstone Representative (which documentation is reasonably acceptable to the Blackstone Representative in its reasonable discretion) evidencing the repayment of all Indebtedness of such acquired Person (other than Permitted Indebtedness), if any, (4) with respect to any new Project, Borrower shall have delivered a Notice of New Project, the Project MIPA and the Material Project Documents, (5) if the acquisition cost for such Permitted Acquisition is more than the present value of the Forward Project Collections for such Project (using a discount rate of 6.0%), the Blackstone Representative shall have consented thereto (which consent it may withhold in its sole discretion) and (6) the Borrower shall have notified the Rating Agency thereof; provided further that the Administrative Agent and the Blackstone Representative shall have received a certificate from a Responsible Officer of the Borrower certifying to the satisfaction of the conditions set forth in this definition; provided further that any acquisition not satisfying each of the foregoing conditions shall be subject to the satisfaction of the Rating Condition. “Permitted Buyout” means the purchase by any Group Member of the Stock of any Buyout Eligible JV in connection with the exercise of a contractual right described in the definition of “Buyout Eligible JV”.
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44 “Permitted Contract” means, with respect to any Project, any Power Purchase Agreement, construction agreement, PILOT/band agreement with a permitting agency, interconnection agreement, SREC Hedge Agreement or any other agreement typical in connection with Project development or acquisition that, in any such case, is entered into by any Group Member in the ordinary course of business consistent with the past practice of the Group Members. “Permitted Equity Commitments” means obligations of the Borrower or any other Group Member to make any payment in respect of any Stock in any Non-Recourse Party (and any guarantee by Borrower or any other Group Member of such obligations) so long as (a) the terms, conditions and amount of such obligations are consented to by the Required Lenders and (b) each such payment in respect of such Stock constitutes an Investment expressly permitted by Section 7.02 (or, in the case of payments made or to be made by Non-Recourse Parties, not prohibited under this Agreement). “Permitted Hedge Agreement” means (a) any SREC Hedge Agreement entered into between an Eligible Hedge Counterparty and any Loan Party for the purpose of satisfying the requirements set forth in Section 6.17 and (b) any Swap Contract that is entered into (1) between an Eligible Hedge Counterparty and any Loan Party, (2) solely for the purpose of hedging exposure to foreign currencies and not for any speculative purposes and (3) with the consent of the Blackstone Representative (which consent may be conditioned upon, without limitation, the execution and effectiveness of such amendments to this Agreement and the other Loan Documents as the Blackstone Representative may require with respect thereto, including, without limitation, (w) to set forth the economic, legal and other terms and conditions upon which such Swap Contracts may be entered into, terminated or otherwise modified, (x) to set forth collateral and other credit support terms with respect thereto, (y) to identify the eligibility criteria for Eligible Hedge Counterparties with respect thereto and (z) to set forth relative payment priorities for ordinary course settlement payments and termination payments with respect to such Swap Contracts); provided that no Permitted Hedge Agreement shall be secured by the Collateral or any portion of the Collateral without the prior written consent of the Required Lenders. “Permitted Indebtedness” means any Indebtedness expressly permitted under Section 7.03. “Permitted Intercompany Debt” means any Indebtedness (a) owed by a Loan Party to any other Loan Party (and to no other Person), (b) owed by any Non-Recourse Party to any other Non-Recourse Party (and to no other Person) or (c) existing on the Closing Date and owed by any Non-Recourse Party to any Loan Party (and to no other Person) and identified on Schedule 7.03(b). “Permitted Lien” means any Lien expressly permitted under Section 7.01. “Permitted Project Undertakings” means guarantees by or obligations of any Loan Parties (other than the Equity Holder or the Borrower) in respect of Project Obligations which guarantees or obligations were provided in connection with a Permitted Tax Equity Financing; provided that the maximum amount for which the Loan Parties may be liable pursuant to the terms of any instrument embodying such Project Obligations shall not exceed the amount consented to by the Required Lenders in connection with the consent to the related Permitted Tax Equity Financing.
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45 “Permitted Reinvestment” means any Investment in one or more Projects that satisfy the Eligibility Criteria. To the extent such reinvestment relates to the acquisition of any Project Company or Project, such reinvestment shall be subject to the requirements applicable to Permitted Acquisitions set forth in this Agreement. “Permitted Tax Distribution” means, with respect to each taxable year ending after the Closing Date for which the Borrower is treated as a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions to the Borrower’s direct or indirect equity owners in an aggregate amount equal to the product of (x) the amount of taxable income allocated to the direct or indirect equity owners of the Borrower for such taxable year, reduced by any cumulative taxable losses allocated to such equity owners for any prior taxable year ending after the Closing Date to the extent such cumulative taxable loss would have been deductible by such equity owners against such taxable income if such loss had been incurred in the taxable year in question (assuming that such equity owners have no items of income, gain, loss, deduction or credit other than through the Borrower and its Subsidiaries) and has not previously been taken into account in determining Permitted Tax Distributions and (y) the highest maximum combined marginal U.S. federal, state and local income tax rate (including any tax rate imposed on “net investment income” by Section 1411 of the Code) applicable to an individual or corporation that is resident in New York City (whichever is higher) for such taxable year (taking into account the character of the taxable income in question (long-term capital gain, qualified dividend income, etc.), and the deductibility of state and local income taxes for U.S. federal income tax purposes (and any applicable limitation thereon)); provided that any Permitted Tax Distribution with respect to any such taxable year may be made in installments during the course of the taxable year using reasonable estimates of the anticipated aggregate amount of distributions for such taxable year, with (a) any excess of aggregate installments with respect to any such taxable year over the actual amount of distributions permitted for such taxable year reducing any Permitted Tax Distribution with respect to the immediately subsequent taxable year (and, to the extent such excess is not fully absorbed in the immediately subsequent taxable year, the following year(s)) and (b) any excess of the actual amounts of distributions permitted for such taxable year over the aggregate installments with respect to any such taxable year increasing any Permitted Tax Distribution with respect to the immediately subsequent taxable year (and, to the extent such excess is not fully absorbed in the immediately subsequent taxable year, the following years); provided, further, that any Permitted Tax Distribution shall be made only on Quarterly Payment Dates pursuant to the Priority of Payments. “Permitted Tax Equity Financing” means (a) any tax equity financing existing as of the Closing Date and identified as such on Schedule 1.01F and (b) any tax equity financing transaction (1) entered into in the ordinary course of business and consistent with the past practice of Holdings, (2) for which the Rating Agency has confirmed that, after giving effect to the incurrence of such Permitted Tax Equity Financing, each of the Class A and Class B Loans shall have the Required Rating applicable thereto and (3) that is consented to by the Blackstone Representative (with such consent not to be unreasonably withheld or delayed). “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
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46 “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) sponsored, maintained or contributed to by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. “Plan Assets” means “plan assets” within the meaning of the Department of Labor regulations located at 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA. “Platform” has the meaning set forth in Section 6.02. “Pledged Debt” has the meaning set forth in the Security Agreement. “Pledged Equity” has the meaning set forth in the Security Agreement. “Pledgor” has the meaning set forth in the Security Agreement. “Power Purchase Agreement” means: (a) with respect to any Project owned by a Group Member on the Closing Date, the power purchase agreement (if any) with respect to such Project in effect as at the Closing Date; and (b) with respect to a Project acquired or invested in after the Closing Date by a Group Member, any document identified the Notice of New Project as the “Power Purchase Agreement” for such Project, which Power Purchase Agreement shall either be in a form consistent with Guarantor’s past business practices or otherwise acceptable to the Required Lenders. “Priority of Payments” means, collectively, the Interest Payment Date Priority of Payments, the Quarterly Payment Date Priority of Payments and the Enforcement Priority of Payments. “Private Rating Letter” means a letter issued by the Rating Agency in connection with any private debt rating for the Loans, which (a) sets forth the Debt Rating for the Loans, (b) refers to the Private Placement Number issued by Standard & Poor’s CUSIP Bureau Service in respect of the Loans, (c) addresses the likelihood of payment of both principal and interest on the Loans (which requirement shall be deemed satisfied if either (x) such letter includes confirmation that the rating reflects the Rating Agency’s assessment of the Company’s ability to make timely payment of principal and interest on the Loans or a similar statement or (y) such letter is silent as to the Rating Agency’s assessment of the likelihood of payment of both principal and interest and does not include any indication to the contrary), (d) includes such other information describing the relevant terms of the Loans as may be required from time to time by the SVO or any other Governmental Authority having jurisdiction over any Lender and (e) shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the letter from being shared with the SVO or any other Governmental Authority having jurisdiction over any Lender. “Private Rating Rationale Report” means, with respect to any Private Rating Letter, a report issued by the Rating Agency in connection with such Private Rating Letter setting forth an analytical review of the Loans explaining the transaction structure, methodology relied upon, and, as appropriate, analysis of the credit, legal, and operational risks and mitigants supporting the
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47 assigned Private Rating for the Loans, in each case, on the letterhead of the Rating Agency or its controlled website and generally consistent with the work product that the Rating Agency would produce for a similar publicly rated security and otherwise in form and substance generally required by the SVO or any other Governmental Authority having jurisdiction over any Lender from time to time. Such report shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the report from being shared with the SVO or any other Governmental Authority having jurisdiction over any Lender. “Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” mean, with respect to compliance with any test hereunder, that all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test: (i) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (A) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of the Borrower or any division, product line, or facility used for operations of the Borrower or any of its Subsidiaries, shall be excluded, and (B) in the case of an Investment described in the definition of “Specified Transaction,” shall be included, (ii) any retirement of Indebtedness, and (iii) any Indebtedness incurred or assumed by the Borrower or any of the Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination. For the avoidance of doubt it is understood that in no event shall (x) Collections be attributable to any Person for any periods during which such Person was not or is not a Group Member (whether in connection with a Permitted Acquisition or otherwise) and (y) Forward Project Collections be attributable to any Person for any periods during which such Person is not or will not be a Group Member (whether by Disposition or otherwise). “Pro Rata Share” means, with respect to each Lender, at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments and, if applicable and without duplication, Loans of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities and, if applicable and without duplication, Loans under the applicable Facility or Facilities at such time. “Project” means the projects listed on Schedule 1.01E and any New Project that becomes a Project in accordance with this Agreement. “Project Company” means any wholly owned direct or indirect Subsidiary of the Borrower (or directly or indirectly wholly owned by the Borrower and a Tax Equity Investor or a Tax Equity JV, as applicable) that owns a Project. “Project Company Expenses” means operating and maintenance expenses and reserves that, in the reasonable determination of the Collateral Manager in accordance with the Management Standard, are necessary or appropriate for the operation of the Projects, including expenses payable under any agreement with any Lease Services Provider or Maintenance Services Provider, Permitted Contract or Asset Management Agreement.
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48 “Project MIPA” means a membership interest purchase agreement reasonably acceptable to the Required Lenders governing the Permitted Acquisition of a Project Company by any Group Member or Group Members, including the TGC Project MIPA. “Project Obligation” means, as to any Group Member, any contractual obligation or other obligation of such Person under: Power Purchase Agreements; agreements for the purchase and sale of energy and renewable energy credits, climate change levy exemption certificates, embedded benefits and other environmental attributes; decommissioning agreements; tax indemnities; operation and maintenance agreements; development contracts; construction contracts; management services contracts; share retention agreements; warranties; bylaws; operating agreements; leases; joint development agreements and other organizational documents; and/or other similar ordinary course contracts entered into in connection with owning, operating, developing or constructing Clean Energy Systems. “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time. “Public Lender” has the meaning set forth in Section 6.02. “Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests. “Quarterly Cap” means, for the Interest Payment Dates during a calendar quarter, the sum of (i) $25,000 plus (ii) the amount of the Quarterly Cap not used for the payment of Administrative Expenses or deposit into the Expense Reserve Account pursuant to Section 9.08(a)(i)(B) hereof during the immediately preceding three calendar quarters; provided, that the Agent Fees shall not count against the Quarterly Cap. “Quarterly Payment Date” means (a) with respect to any Due Period, the date that is eight Business Days following delivery of financial statements in respect of the corresponding Fiscal Quarter in accordance with Section 6.01 (or other financial statements acceptable to the Blackstone Representative in its reasonable discretion), which date shall be notified by the Blackstone Representative to the Administrative Agent, the Collateral Agent and the Borrower at least two Business Days prior to such date, and (b) the Maturity Date. “Quarterly Payment Date Account” means the account established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.03(g) hereof. “Quarterly Payment Date Priority of Payments” has the meaning set forth in Section 9.08(a)(ii). “Rated Investment Grade Customer” means, at any time, a counterparty (i) rated BBB or better by Standard & Poor’s or Fitch or Baa2 or better by Moody’s at such time or (ii) that is an Acceptable CS Customer at such time. “Rated Non-Investment Grade Customer” means, at any time, a counterparty rated lower than BBB by Standard & Poor’s and Fitch and lower than Baa2 Moody’s at such time.
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49 “Rating Agency” means an Acceptable Rating Agency rating the Loans; initially, the Rating Agency shall be KBRA. “Rating Condition” means, with respect to any event or circumstance that KBRA has been given notice of such event or circumstance at least ten (10) Business Days prior to the occurrence of such event or circumstance; provided that in the case of a proposed change related to an additional issuance of Loans, in which case KBRA shall have received written notice of the proposed action not less than ten (10) Business Days prior to the effectiveness thereof and has issued a written notice that such action will not result in a downgrade or withdrawal of its rating assigned to the Loans. “Real Property” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned or leased by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof. “Register” has the meaning set forth in Section 11.07(d). “Reinvestment Account” means the account at the Custodian that may be established pursuant to Section 1 of the Account Control Agreement and maintained pursuant to Section 9.03(e) hereof. “Reinvestment Period” means, in respect of any Reinvestment Proceeds received by the Borrower, the period beginning on the date of receipt of such proceeds and ending on (a) if within 12 months of such receipt such proceeds have been contractually committed to be reinvested in any Permitted Reinvestment, the date that is 18 months following the receipt of such proceeds, or otherwise (b) the date that is 12 months following the receipt of such proceeds. “Reinvestment Proceeds” means, with respect to any Disposition Proceeds, Extraordinary Receipts or Casualty Proceeds received by any Group Member, the Net Proceeds applicable thereto; provided that no proceeds shall be considered Reinvestment Proceeds at any time after the Reinvestment Period (if any) applicable thereto. “Release” means any spilling, leaking, leaching, pumping, pouring, emitting, escaping, emptying, seeping, discharging, injecting, dumping, depositing or disposing of Hazardous Materials into the Environment. “Release Price” has the meaning set forth in Section 7.05. “Replacement Collateral Manager” means a replacement Collateral Manager under the Collateral Management Agreement (other than a replacement manager that is an Affiliate of Holdings). “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Pension Plan, other than events for which the thirty (30) day notice period has been waived.
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50 “Required Lenders” means, as of any date of determination, Lenders having more than fifty percent (50.0%) of Total Outstandings; provided that the portion of the Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided, further, that, to the same extent set forth in Section 11.07(n) with respect to determination of Required Lenders, the Loans of any Affiliated Lender shall in each case be excluded for purposes of making a determination of Required Lenders; and, provided, further, that, to the extent there is any Lender that is not a Blackstone Asset Based Finance Entity and to the same extent set forth in Section 11.07(p), all Term Loans held by Debt Fund Affiliates may not account for more than 49.9% (pro rata among such Debt Fund Affiliates) of the Term Loans of consenting Lenders included in determining whether the Required Lenders have consented to any action pursuant to Section 11.01. “Required Rating” means, with respect to (a) the Class A Loans, a rating of BBB or higher by the Rating Agency, and (b) the Class B Loans, a rating of BBB or higher by the Rating Agency. For the avoidance of doubt, as of the Initial Borrowing Date, only Class A Loans shall be made hereunder. “Required Ratings Test” means, as of any date of determination, a test that is satisfied if: (a) each Class of Loans (if applicable) has the Required Rating applicable thereto; and (b) if the LTV Ratio on such date is greater than 40%, (i) the percentage equal to (1) the aggregate principal amount of Loans outstanding at such time with a rating of less than A- by the Rating Agency divided by (2) the Total Outstandings at such time does not exceed (ii) the percentage equal to (1) the LTV Ratio on such date minus 40% divided by (2) the LTV Ratio on such date. “Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, chief legal officer, treasurer or assistant treasurer or other similar officer or a manager of a Loan Party and, as to any document delivered on the Closing Date or any document similar to any such document, any secretary, assistant secretary or manager of such Loan Party and any officer or employee of the applicable Loan Party where the signature is included on an incumbency certificate or similar certificate reasonably satisfactory to the Blackstone Representative. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. “Restricted Payment” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any other Group Member, as applicable, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Borrower’s or such Group Member’s stockholders, partners or members (or the equivalent Persons thereof) and (b) any loans or advances made by the Borrower or any Group Member to any direct or indirect parent thereof. For the avoidance of doubt, any Restricted Payment shall be properly made in accordance with all legal requirements and consistent with
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51 applicable organizational documents and properly recorded on the books and records of the Borrower, any applicable Group Member and any other applicable Affiliate thereof. “Restricted Payment Conditions” means, at any time, conditions that are satisfied if all of the following are satisfied at such time: (a) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing, (b) the Debt Service Coverage Ratio is at least 1.35:1.00 and (c) the Funded DSR is greater than or equal to the DSRA Amount. “S&P” means Standard & Poor’s Ratings Financial Services, a subsidiary of S&P Global Inc., and any successor thereto. “Same Day Funds” means immediately available funds. “Sanction” or “Sanctions” means individually and collectively, respectively, any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti- terrorism laws imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of the Treasury, the U.S. Department of State, or through any existing or future executive order; (b) the United Nations Security Council; (c) the European Union; (d) the United Kingdom; or (e) any other governmental authority of a jurisdiction where any Group Member operates or in which the proceeds of the Loans will be used or from which repayments of the Obligations under this Agreement or related Loan Documents will be derived. “Sanctioned Entity” means any individual, entity, group, or sector, that is the target of any Sanctions or any territory or country whose government is itself the target of any Sanctions, including without limitation, any legal entity that is deemed to be a target of Sanctions based on the direct or indirect ownership or control of such entity by any other Sanctioned Entity. “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. “Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Supplemental Agents and each co-agent or sub-agent appointed by the Administrative Agent or Collateral Agent from time to time pursuant to Section 10.02. “Securities Act” means the Securities Act of 1933, as amended. “Security Agreement” means the Guarantee and Security Agreement substantially in the form of Exhibit F, dated as of the Closing Date, among the Borrower, the Guarantors and the Collateral Agent. “Senior Replacement Collateral Management Fees” means a fee payable in arrears on each Payment Date (commencing with the first such Payment Date following the date on which a Replacement Collateral Manager has become the Collateral Manager) to the Replacement Collateral Manager, in accordance with the Priority of Payments, as compensation for rendering its services under the Collateral Management Agreement, in an amount together with the Junior Replacement Management Fees not to exceed 0.50 % per annum (unless the Required Lenders
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53 independent certification board or group generally recognized in the electric power generation industry, and generated by or associated with any Project or electricity produced therefrom. “Stock” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting. “Stock Equivalents” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable. “Subsequent CS Projects” has the meaning set forth in the definition of “Acceptable CS Customers”. “Subsequent Draw Period” has the meaning set forth in the definition of “Term Loan Commitment Expiration Date”. “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which (a) a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, (b) more than half of the issued share capital is at the time beneficially owned or (c) the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower. “Supplemental Agent” has the meaning set forth in Section 10.13(a) and “Supplemental Agents” shall have the corresponding meaning. “SVO” means the Securities Valuation Office of the NAIC. “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
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54 “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). “Tax Equity Distribution” has the meaning set forth in the definition of “Tax Equity Distribution Statement”. “Tax Equity Distribution Statement” means, with respect to any Tax Equity Holdco (or any successor thereto) and any distribution made by any Tax Equity Party to its investors, a statement detailing the amount of such distributions to be made by such Tax Equity Party to its investors (a “Tax Equity Distribution”), together with such supporting information as may be required under the related Tax Equity Documents with respect thereto, all in a manner consistent with the past practices of such Tax Equity Holdco. “Tax Equity Documents” means (a) with respect to any Tax Equity JV or Lessee, its limited liability company agreement and the applicable equity capital contribution agreement, operating agreement, guaranty agreement, management services agreement and project development agreements to which it is a party and any other material documents related to any Permitted Tax Equity Financing to which it is a party and (b) with respect to any Subsidiary of a Tax Equity JV, its limited liability company agreement, its operating agreement and the Tax Equity Documents of its Tax Equity JV parent. “Tax Equity HoldCo” means a wholly-owned subsidiary of the Borrower formed to own (a) in the case of a tax equity investment structured as a partnership flip, the non-tax equity interest in one or more Tax Equity JVs or Project Companies, and (b) in the case of a tax equity investment structured as an inverted lease, an equity interest in both the lessor and the Lessee. “Tax Equity Investor” means, with respect to any tax equity investment related to a Project, the Person that makes such tax equity investment. “Tax Equity JV” means, as of any time of determination, any Person (a) which is a special purpose vehicle formed solely for the purpose of holding equity, directly or indirectly, in one or more Project Companies, (b) in which a Loan Party or a Tax Equity HoldCo directly owns Stock and (c) (i) in the case of a tax equity investment structured as a partnership flip, that is the issuer of a Permitted Tax Equity Financing, or (ii) in the case of a tax equity investment structured as an inverted lease, has a member that is the issuer of a Permitted Tax Equity Financing and that is also the Lessee. For the avoidance of doubt, the term Tax Equity JV does not include a Lessee. “Tax Equity Party” means, at any time, collectively, (a) each Tax Equity JV, (b) each (direct or indirect) Subsidiary of each Tax Equity JV and (c) if not owned (directly or indirectly) by a Tax Equity JV, each Project Company that is directly or indirectly wholly owned by the
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55 Borrower (or a Tax Equity HoldCo) and a Tax Equity Investor. For the avoidance of doubt, no Tax Equity HoldCo shall constitute a Tax Equity Party hereunder. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Term Borrowing” means the Borrowing of Term Loans on the Borrowing Dates. “Term Loan Commitment Expiration Date” means the earliest of (i) the date on which the full Commitment has been drawn, (ii)(a) with respect to Commitments in the aggregate amount up to $193,000,00, the date that is one (1) month after the Closing Date (the “Initial Draw Period”) or (b) with respect to the remaining Commitments in the aggregate amount up to $11,000,000, the date that is six (6) months after the Closing Date (or such later date as the Blackstone Representative may agree in its sole and absolute discretion) (the “Subsequent Draw Period”) and (iii) the Maturity Date. “Test Period” means each period of four consecutive Fiscal Quarters of the Borrower for which financial statements have been delivered to the Administrative Agent (for the avoidance of doubt, whether on or prior to the Closing Date or pursuant to Section 6.01). “Threshold Amount” means $5,000,000. “Total Assets” means the total assets of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Borrower delivered pursuant to Sections 6.01(a) or (b) or, for the period prior to the time any such statements are so delivered pursuant to Section 6.01(a) or (b), pro forma financial statements. “Total Outstandings” means the aggregate Outstanding Amount of all Loans. “Total Revenues” means, as of any date, the aggregate revenues of the Group Members for the Test Period most recently ended prior to the date of determination; provided that, with respect to any Project in operation for less than twelve months, the projected revenues (as determined in good faith by the Collateral Manager in accordance with the Management Standard) for such Project for the following twelve months shall be used instead of actual revenues. “Transaction Expenses” means any fees or expenses incurred or paid by the Investors or Group Members in connection with the Transactions (including expenses in connection with SREC Hedge Agreements and any Upfront Fees), this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby. “Transactions” means, collectively, (a) the Initial Borrowing Date Equity Contribution, (b) the funding of the Term Loans and the execution and delivery of Loan Documents, (c) the establishment of the Collateral Accounts on the Closing Date and the funding of (1) the Debt Service Reserve Account, including, through the delivery to the Collateral Agent of one or more DSR L/Cs and (2) the Buyout Reserve Account, including, through the delivery to the Collateral Agent of one or more Buyout L/Cs, (d) the acquisition of the Projects, and (e) the payment of Transaction Expenses.
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56 “Treasury Rate” means the yield to maturity at a time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two (2) Business Days prior to the prepayment date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the applicable prepayment date to the Anticipated Repayment Date, provided, however, that if the period from the applicable prepayment date to the Anticipated Repayment Date, is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth (1/12th) of a year) from the weekly average yields of United States Treasury securities for which such yields are given having maturities as close as possible to the Anticipated Repayment Date, except that if the period from the applicable prepayment date to the Anticipated Repayment Date is less than one (1) year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one (1) year shall be used. “TGC Project MIPA” means that certain Purchase and Sale Agreement, date as of December 23, 2022, related to the acquisition by APA Finance III, LLC, an affiliate of Borrower, of certain membership interests from True Green Capital Fund III, L.P. “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral. “Uninvested Proceeds” means, with respect to any Reinvestment Proceeds, any proceeds remaining at the end of the applicable Reinvestment Period (if any). “United States” or “U.S.” means the United States of America. “United States Tax Compliance Certificate” means a certificate substantially in the form of Exhibits X-0, X-0, X-0 xxx X-0 hereto, as applicable. “Unrated Creditworthy Customer” means, at any time, an unrated counterparty whose financial strength is equivalent to a Rated Investment Grade Customer at such time based on a financial qualification analysis and, if applicable, an assigned “estimate”, “private” or “shadow” rating in each case acceptable to the Blackstone Representative. “Unrated Non-Investment Grade Customer” means, at any time, an unrated counterparty whose financial strength is not equivalent to a Rated Investment Grade Customer based on a financial qualification analysis and, if applicable, an assigned “estimate”, “private” or “shadow” rating in each case acceptable to the Blackstone Representative. “Upfront Fee Letter” means the letter agreement dated as of the Closing Date among the Borrower, the Lenders and the Blackstone Representative. “Upfront Fees” has the meaning set forth in Section 2.07(a).
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60 Lender for such purposes, a “Class B Only Lender”), then such Class A Only Lenders shall be required to make only Class A Loans and such Class B Only Lenders shall be required to make only Class B Loans. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Section 2.02 Borrowings of Loans. (a) If the Borrower desires to make a Borrowing under this Agreement, it shall deliver the Administrative Agent and the Blackstone Representative an executed Committed Loan Notice. Such notice must be received by the Administrative Agent and the Blackstone Representative not later than (i) 12:00 noon New York City time seven (7) Business Days prior to the requested date of such Borrowing. Each Borrowing shall be in a minimum principal amount of $5,000,000, or a whole multiple of $100,000, in excess thereof (or such other amount as agreed to by the Blackstone Representative in its sole discretion). The Committed Loan Notice shall specify (i) the requested date of the Borrowing (which shall be a Business Day), (ii) the aggregate principal amount of Loans to be borrowed, and (iii) the account name and number into which the Loans are to be deposited, and shall also include a flow of funds memorandum relating to the application of such Borrower which specifies the name and address of each transferee bank and such transferee bank’s ABA number and wiring instructions. (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share or other applicable share provided for under this Agreement of the applicable Loans of each Class to be made. No later than 1:00 p.m. (New York City time) on any Borrowing Date, each applicable Lender will make available its pro rata portion based on its Commitment, of the Loans of each Class to be made on such date as specified in the applicable Committed Loan Notice to the Collection Account. Unless the Administrative Agent has been notified that any applicable condition specified in Article IV or otherwise has not been satisfied, the Administrative Agent shall make all funds so received and deposited in the Collection Account available to the Borrower in like funds as received by wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower. (c) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing or make any other payment obligation under the Loan Documents. Section 2.03 Prepayments. (a) Voluntary. (i) The Borrower may, upon irrevocable (subject to clause (ii) below) written notice to the Administrative Agent and the Collateral Agent by the Borrower, at any time or from time to time voluntarily prepay the Loans in whole or in part (subject, in each case, to the notice and other requirements of Section 2.03(a)(iii)); provided that (1) such notice must be received by the Administrative Agent and the Collateral Agent not later than 1:00 p.m. New York City time three (3) Business Days prior to any on the date of prepayment of any Loans and (2) any prepayment
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61 of Loans shall be in a minimum principal amount of $500,000, or a whole multiple of $500,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and whether such prepayment is being made in connection with any refinancing transaction (and, if so, shall provide reasonable detail regarding such transaction). The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of each Class of Loans being prepaid. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. In the case of each prepayment of the Loans pursuant to this Section 2.03(a), such payment shall be applied pro rata as between the Class A Loans and Class B Loans outstanding at such time, and such payment shall be paid to the applicable Lenders in accordance with their respective Pro Rata Shares of each such Class of Loans. If no Term Loans are outstanding at the time of any such mandatory prepayment, the outstanding Commitments will be reduced by the amount of such mandatory prepayment. (ii) The Borrower may rescind any notice of prepayment under Section 2.03(a)(i) if such prepayment was to be made using the proceeds of a financing transaction and such financing transaction is cancelled or otherwise delayed. (iii) In the event that the Borrower voluntarily prepays Term Loans, the Borrower shall also pay all outstanding Administrative Expenses owing to the Agents and shall pay to the Collateral Agent, for the ratable account of each of the applicable Lenders, the Make-Whole Amount; provided that no Make-Whole Amount shall be due if such voluntary prepayment occurs following the date that is three (3) years following the Closing Date. (iv) Prepayments of Loans pursuant to this Section 2.03(a) shall not be subject to the Priority of Payments. (b) Mandatory. (i) At the end of the Reinvestment Period (if any) applicable to any Extraordinary Receipts, the Borrower (or the Collateral Manager on its behalf) shall promptly direct the Collateral Agent to transfer 50% of the Reinvestment Proceeds in respect of such Extraordinary Receipts (determined immediately prior to the end of such Reinvestment Period (if any)) for application to the repayment of principal of the Term Loans. (ii) At the end of the Reinvestment Period (if any) applicable to any Disposition Proceeds, the Borrower (or the Collateral Manager on its behalf) shall promptly direct the Collateral Agent to transfer 100% of the Reinvestment Proceeds in respect of such Disposition Proceeds (determined immediately prior to the end of such Reinvestment Period (if any)) for application towards the repayment of principal of the Term Loans. (iii) If any Group Member incurs or issues any Indebtedness after the Closing Date (other than Indebtedness expressly permitted under Section 7.03), the Borrower (or
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65 payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents. Section 2.10 Payments Generally. (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower pursuant to this Agreement or any of the Loan Documents in respect of principal of, interest on, or other amounts owing in respect of, the Loans shall be made in Dollars pursuant to the Priority of Payments. All amounts payable to the Collateral Agent under this Agreement or otherwise (including, but not limited to, fees) shall be paid to the Collateral Agent for the account of the Person entitled thereto. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Corporate Trust Office in Dollars and in Same Day Funds not later than 12:00 noon New York City time on the date specified herein. The Administrative Agent will promptly distribute to each applicable Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent after 12:00 noon New York City time shall in each case be deemed received on the next succeeding Business Day, in the Administrative Agent’s sole discretion, and any applicable interest or fee shall continue to accrue. (b) Except as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day. (c) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then: (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the Overnight Bank Funding Rate, plus any
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69 payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than seven Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. For the avoidance of doubt, neither the Borrower nor any other Loan Party shall constitute a “Payment Recipient.” (b) Without limiting immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of a Lender, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case: (i) (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and (ii) such Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 2.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 2.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 2.13(a) or on whether or not an Erroneous Payment has been made. (c) Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document, or otherwise
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70 payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement. (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, (iv) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (v) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, subject to Section 11.07 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Xxxxxx (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and
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72 Party shall be increased as necessary so that after making all required deductions or withholdings (including deductions or withholding of an Indemnified Tax applicable to additional sums payable under this Section 3.01), each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions or withholding for Indemnified Taxes been made, (B) the applicable Withholding Agent shall make such deductions or withholding, (C) the applicable Withholding Agent shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Laws, and (D) within thirty (30) days after the date of such payment (or, if receipts or evidence are not available within thirty (30) days, as soon as practicable thereafter), if a Loan Party is the applicable Withholding Agent, shall furnish to the Administrative Agent the original or a copy of a receipt evidencing payment thereof or other evidence reasonably acceptable to the Administrative Agent. (b) The Borrower agrees to pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes. (c) The Loan Parties agree to indemnify each Agent and each Lender for (i) the full amount of any Indemnified Taxes payable by such Agent or such Lender (including Indemnified Taxes imposed on or attributable to amounts payable under this Section 3.01) and (ii) any reasonable expenses arising therefrom or with respect thereto, in each case whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith by such Agent or Lender (or by an Agent on behalf of such Lender), accompanied by a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts shall be conclusive absent manifest error. (d) Each Lender shall severally indemnify the Administrative Agent and the Collateral Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender or Agent (but only to the extent that any Loan Party has not already indemnified such Lender or Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Xxxxxx’s failure to comply with the provisions of Section 11.07 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by such Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by any such Agent shall be conclusive absent manifest error. Each Lender hereby authorizes each such Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by such Agent to the Lender from any other source against any amount due to such Agent under this paragraph (d). (e) Each Lender shall, at such times as are reasonably requested by the Borrower, the Administrative Agent or the Collateral Agent, provide the Borrower and such Agent with any documentation prescribed by Law certifying as to any entitlement of such Lender to an exemption from, or reduction in, withholding Tax with respect to any payments to be made to such Lender under the Loan Documents. In addition, any Lender, if reasonably requested by the Borrower, the Administrative Agent or the Collateral Agent, shall deliver such other documentation prescribed by
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73 applicable Law or reasonably requested by the Borrower or such Agent as will enable the Borrower or such Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding any other provision of this clause (e), the completion, execution and submission of such documentation (other than such documentation set forth in any of Section 3.01(e)(i), Section 3.01(e)(ii) (other than Section 3.01(e)(ii)(E)) and Section 3.01(e)(iii) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Without limiting the foregoing: (i) Each Lender that is a U.S. Person shall deliver to the Borrower, the Administrative Agent and the Collateral Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or such Agent) two properly completed and duly signed copies of Internal Revenue Service Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding. (ii) Each Lender that is not a U.S. Person shall, to the extent it is legally entitled to do so, deliver to the Borrower, the Administrative Agent and the Collateral Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or such Agent) whichever of the following is applicable: (A) in the case of a Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, two properly completed and duly signed copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E (or any successor forms), establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty, (B) two properly completed and duly signed copies of Internal Revenue Service Form W-8ECI (or any successor forms), (C) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (a) a United States Tax Compliance Certificate and (b) two properly completed and duly signed copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E (or any successor form), (D) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership), Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form X-0XXX, X-0XXX, X-0XXX-X, X-0XXX, Xxxxxx Xxxxxx Tax Compliance Certificate, Form W-9
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74 and/or any other required information from each beneficial owner, as applicable (provided that, if the Lender is a partnership, and one or more direct or indirect beneficial partners of such Lender are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Lender on behalf of each such partner), or (E) two properly completed and duly signed copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Loan Documents, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made. (iii) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower, the Administrative Agent and the Collateral Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower and any such Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower, the Administrative Agent or the Collateral Agent as may be necessary for the Borrower and each such Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Xxxxxx’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 3.01(d)(iii), “FATCA” shall include any amendments made to FATCA after the Closing Date. Each such Lender shall, whenever a lapse in time or change in circumstances renders any such documentation described in this Section 3.01(d) obsolete or inaccurate in any respect, deliver promptly to the Borrower, the Administrative Agent and the Collateral Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or such Agent) or promptly notify the Borrower, the Administrative Agent and the Collateral Agent in writing of its inability to do so. (f) If the Borrower is required to pay any Indemnified Taxes or additional amounts payable pursuant to this Section 3.01 to any Lender, or to any Governmental Authority for the account of any Lender, any such Lender shall, if requested by the Borrower, use its reasonable efforts to change the jurisdiction of its Lending Office (or take any other measures reasonably requested by the Borrower) if such a change or other measures would reduce any such additional amounts (including any such additional amounts that may thereafter accrue) and would not, in the sole determination of such Lender, result in any unreimbursed cost or expense or be otherwise materially disadvantageous to such Lender. (g) If the Administrative Agent or the Collateral Agent (or any sub-agent of either, if applicable) is not a U.S. Person, the Administrative Agent or the Collateral Agent (and any sub-
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75 agent of either, if applicable), as applicable, shall deliver to the Borrower on or before the date on which it becomes Agent (or sub-agent) under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower) (i) an accurate and complete signed copy of IRS Form W- 8ECI with respect to any amounts payable to such Agent (or sub-agent) for its own account and (ii) an accurate and complete signed copy of IRS Form W-8IMY with respect to any amounts payable to such Agent (or sub-agent) for the account of others, certifying that it is a “U.S. branch,” and that it is using such form as evidence of its agreement with the Borrower to be treated as a U.S. Person with respect to such payments (and the Borrower and such Agent (and any sub-agent) agree to so treat such Agent (and any sub-agent thereof, if applicable) as a U.S. Person with respect to such payments as contemplated by, and in accordance with, Sections 1.1441-1(b)(2)(iv) of the United States Treasury Regulations). If the Administrative Agent or the Collateral Agent (and any sub- agent of either, if applicable) is a U.S. Person, it shall deliver to the Borrower on or before the date on which it becomes Agent (or sub-agent) under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower) an accurate and complete Form W-9 setting forth an exemption from backup withholding. Each of the Administrative Agent and the Collateral Agent shall, whenever a lapse in time or change in circumstances renders any such documentation described in this Section 3.01(f) obsolete or inaccurate in any respect, deliver promptly to the Borrower updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower) or promptly notify the Borrower in writing of its inability to do so. (h) If any Lender or Agent receives a refund in respect of any Taxes as to which indemnification or additional amounts have been paid pursuant to this Section 3.01, it shall promptly remit such refund to the indemnifying party (but only to the extent of indemnification or additional amounts paid under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of the Lender or Agent, as the case may be, and without interest (other than any interest paid by the relevant taxing authority with respect to such refund, net of any Taxes payable by any Agent or Lender on such interest); provided that the indemnifying party upon the request of the Lender or Agent, as the case may be, agrees promptly to return such refund (plus any penalties, interest or other charges imposed by the relevant taxing authority) to such party in the event such party is required to repay such refund to the relevant taxing authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after- Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This section shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to Taxes that it deems confidential) to the Borrower or any other person. (i) For the avoidance of doubt, the term “Law” for purposes of this Section 3.01 includes FATCA. (j) Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent and the Collateral Agent or any assignment of rights by,
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79 confirmation in lieu thereof reasonably satisfactory to the Blackstone Representative or its counsel that such certificates, powers and instruments have been sent for overnight delivery to Collateral Agent); (B) copies of (1) proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Blackstone Representative may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on assets of the Borrower and the Guarantors, covering the Collateral described in the Security Agreement and (2) proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Loan Parties or any other transferor of the Collateral; and (C) evidence that all other actions, recordings and filings required by the Collateral Documents as of the Closing Date that the Blackstone Representative may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Blackstone Representative (it being understood that the Borrower providing authorization to the Blackstone Representative to take such actions or make such recordings and filings that can be taken or made by the Blackstone Representative or the Collateral Agent and to the extent agreed to be taken or made by the Blackstone Representative or Collateral Agent shall be reasonably satisfactory to the Blackstone Representative); (iii) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Blackstone Representative with respect to the Loan Parties; (iv) such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action and incumbency certificates evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date; (v) legal opinions (addressed to each of the Secured Parties and KBRA) from Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties and the Collateral Manager; (vi) On the Initial Borrowing Date, the Administrative Agent and Lenders shall have received legal opinions (addressed to each of the Secured Parties and KBRA) from Xxxxxxx Xxxxxx & Finger, PA, special Delaware counsel to the Loan Parties (including as to true sale and non-consolidation) each in form and substance reasonably satisfactory to the Blackstone Representative and its legal counsel; (vii) the Security Agreement, duly executed by the Borrower, the Guarantors and the Collateral Agent; (viii) the Limited Guarantee, duly executed by the Limited Guarantor;
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80 (ix) a solvency certificate from a Responsible Officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit D; (x) a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, to the effect that, as of the Closing Date (A) all conditions set forth in this Section 4.01 have been satisfied (or waived pursuant to the terms hereof) and (B) all representations and warranties of the Loan Parties and the Collateral Manager, as applicable, set forth in this Agreement and each of the other Loan Documents are true and correct in all material respects (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and (xi) a list setting identifying each bank account of or in the name of each Loan Party (each, an “Existing Account”), including the account number and account holder of each such account and the balance thereof as of the most recently available date prior to the Closing Date. (b) All fees and expenses due to the Blackstone Representative, the Administrative Agent and the Collateral Agent required to be paid on the Closing Date and (in the case of expenses) invoiced at least three (3) Business Days before the Closing Date (except as otherwise reasonably agreed by the Borrower) shall have been paid from the proceeds of the initial funding under the Facilities; (c) (i) The Borrower shall have delivered, or caused to be delivered, to the Administrative Agent and the Blackstone Representative, (a) a Private Rating Letter issued by the Rating Agency setting forth the initial Debt Rating for the Loans, which shall have the Required Rating applicable thereto, and (b) the related Private Rating Rationale Report with respect to such Debt Rating, and (ii) the Required Ratings Test shall be satisfied; (d) The representations and warranties of the Loan Parties set forth in this Agreement shall be true and correct in all material respects on and as of the Closing Date (or, to the extent qualified by materiality, true and correct in all respects); provided that, to the extent that such representations and warranties specifically refer to an earlier date or period, they shall be true and correct in all material respects as of such earlier date or period (or, to the extent qualified by materiality, true and correct in all respects) for purposes of making or deemed making such representation or warranty on, or as of, the Closing Date; (e) As of the Closing Date there shall be no Default, Event of Default or Early Amortization Event; (f) As of the Closing Date the LTV Ratio does not exceed the Maximum LTV Ratio; (g) The Blackstone Representative and the Lenders shall have (i) received all documentation and other information about the Group Members and Limited Guarantor required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (“KYC”), that has been requested by the Blackstone Representative in writing at least ten (10) Business Days prior to the Closing Date and (ii) completed diligence to its satisfaction of such KYC;
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83 confirmation in lieu thereof reasonably satisfactory to the Blackstone Representative or its counsel that such certificates, powers and instruments have been sent for overnight delivery to Document Custodian (on behalf of the Collateral Agent)); (B) copies of (1) proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Blackstone Representative may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on assets of the Borrower and the Guarantors, covering the acquired Collateral described in the Security Agreement and (2) proper financing statements, if any, necessary to release all security interests and other rights of any Person in the acquired Collateral previously granted by the Loan Parties or any other transferor of the acquired Collateral; and (C) evidence that all other actions, recordings and filings required by the Collateral Documents as of the Closing Date that the Blackstone Representative may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Blackstone Representative (it being understood that the Borrower providing authorization to the Blackstone Representative to take such actions or make such recordings and filings that can be taken or made by the Blackstone Representative or the Collateral Agent and to the extent agreed to be taken or made by the Blackstone Representative or Collateral Agent shall be reasonably satisfactory to the Blackstone Representative); (ii) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Blackstone Representative with respect to the additional Loan Parties; (iii) such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each additional Loan Party, certificates of resolutions or other action and incumbency certificates evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such additional Loan Party is a party or is to be a party on the Closing Date; (iv) legal opinions (addressed to each of the Secured Parties and KBRA) from Xxxxxxxx & Xxxxx LLP, counsel to the Loan Parties and the Collateral Manager and Xxxxxxx Xxxxxx & Finger, PA, special Delaware counsel to the Loan Parties (including as to true sale and non-consolidation); (v) a solvency certificate from a Responsible Officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit D; (vi) a certificate, dated the acquisition date and signed by a Responsible Officer of the Borrower, to the effect that, as of the Closing Date (A) all conditions set forth in this Section 4.03 have been satisfied (or waived pursuant to the terms hereof) and (B) all
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84 representations and warranties of the Loan Parties and the Collateral Manager, as applicable, set forth in this Agreement and each of the other Loan Documents are true and correct in all material respects (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and (vii) a list identifying each Existing Account of each additional Loan Party, including the account number and account holder of each such account and the balance thereof as of the most recently available date prior to the Closing Date. (b) The representations and warranties of the Loan Parties set forth in this Agreement shall be true and correct in all material respects on and as of the acquisition date (or, to the extent qualified by materiality, true and correct in all respects); provided that, to the extent that such representations and warranties specifically refer to an earlier date or period, they shall be true and correct in all material respects as of such earlier date or period (or, to the extent qualified by materiality, true and correct in all respects) for purposes of making or deemed making such representation or warranty on, or as of, the Closing Date; (c) No Default, Event of Default or Early Amortization Event has occurred and is continuing or would result from such acquisition; (d) Since the Closing Date, no Material Adverse Effect shall have occurred or would result from the acquisition; (e) As of the acquisition date, the LTV Ratio does not exceed the Maximum LTV Ratio; (f) The Borrower shall be in compliance on a Pro Forma Basis with the Concentration Limits; (g) The Blackstone Representative and the Lenders shall have (i) received all documentation and other information about the additional Group Members required under applicable KYC that has been requested by the Blackstone Representative in writing at least ten (10) Business Days prior to the Closing Date and (ii) completed diligence to its satisfaction of such KYC; (h) The Blackstone Representative shall have received and approved the projected Project Company Expenses for each additional Project; (i) In the case of any Term Loan funded or Reinvestment Proceeds released in connection with the achievement of the Commercial Operation Date for any Project, such Commercial Operation Date shall have occurred under the EPC Agreement for such Project; (j) Each of the conditions set forth in the definition of “Permitted Acquisition” shall be satisfied; and (k) The Agents and the Lenders shall have received such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably
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92 year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not contain any qualifications or exceptions as to the scope of such audit or any “going concern” explanatory paragraph or like qualification (other than as a result of the Maturity Date occurring within one year after the issuance date of such opinion); (b) Deliver to the Administrative Agent (for prompt further distribution to each Lender), the Blackstone Representative and to the Rating Agency, within sixty (60) days of the first three Fiscal Quarters of each fiscal year of the Borrower, commencing with the Fiscal Quarter ending June 30, 2023, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter and in comparative format, the prior fiscal year-end and the related consolidated statements of income or operations for such Fiscal Quarter and the portion of the fiscal year then ended, setting forth in comparative form the figures for the corresponding Fiscal Quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, and statements of stockholders’ equity for the current Fiscal Quarter and consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and (c) Notwithstanding the foregoing, the obligations in Sections 6.01(a) and 6.01(b) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of the Borrower (or any direct or indirect parent of the Borrower) or (B) the Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10- K or 10-Q, as applicable, filed with the SEC; provided that, with respect to clauses (A) and (B), (i) to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to the Borrower (or such parent), on the one hand, and the information relating to the Borrower and the Subsidiaries on a stand-alone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and, except as permitted in Section 6.01(a), shall not contain any qualifications or exceptions as to the scope of such audit or any “going concern” explanatory paragraph or like qualification. Documents required to be delivered pursuant to this Section 6.01 and Section 6.02(b) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower (or any direct or indirect parent of the Borrower) posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website; or (ii) on which such documents are posted on the Borrower’s behalf on Debtdomain, Roadshow Access (if applicable) or another relevant website, if any, to which each Lender, the Blackstone Representative, the Administrative Agent and the Rating Agency have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided
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94 either their own initiative or at the request of any Lender or the Rating Agency, may reasonably request in writing; (h) promptly, but in no event longer than seven days, after any Responsible Officer of the Borrower has actual knowledge thereof, written notice of the occurrence of an event that would permit the termination of the Collateral Management Agreement or the replacement of the Collateral Manager under the Collateral Management Agreement; (i) promptly, but in no event longer than five days, following creation thereof, notice of the establishment of any bank, deposit or securities account by any Loan Party (in such detail as the Blackstone Representative may reasonably request); (j) (1) on an annual basis concurrently with or promptly following delivery to any direct or indirect parent (and in any event, no later than five Business Days after such delivery), default and recovery information substantially similar to the information provided to the Lenders prior to the date hereof in connection with its due diligence process; (2) within 10 Business Days upon request by any Lender, any and all additional information with respect to the Loan Parties that is reasonably available to it (after using commercially reasonable efforts to obtain) and is required for compliance with the requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel II or Basel III and (3) within 10 Business Days upon request by any Lender, any and all additional information and financial reporting with respect to each Obligor that is reasonably available to it (after using commercially reasonable efforts to obtain) and required for compliance with the requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel II or Basel III, in each case subject to any applicable confidentiality requirements binding on the Borrower or the Collateral Manager under law or contract (provided that the Borrower or the Collateral Manager, as applicable, shall use commercially reasonable efforts to have such confidentiality requirements waived or an exception made for provision hereunder); (k) promptly, such additional information regarding the business, legal, financial or corporate affairs of the Loan Parties, or compliance with the terms of the Loan Documents, as the Blackstone Representative or any Lender through the Blackstone Representative may from time to time reasonably request; (l) promptly after (and in any event, no later than 10 Business Days following) any acquisition of or Investment in any Project (other than Projects owned by a Group Member as of the Closing Date and Projects in respect of which a Notice of New Project has previously been delivered to the Blackstone Representative), a Notice of New Project with respect thereto, certifying that the Project is commercially operational and the Commercial Operation Date has occurred, identifying the relevant Lease Services Provider or Maintenance Services Provider, disclosing projected Project Company Expenses and attaching all Material Project Documents (including, if applicable, the initial Power Purchase Agreement) for such Project; and
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95 (m) for each Tax Equity Holdco and each Tax Equity Party (and any successors of any thereof), promptly and in any event within five Business Days following (1) the distribution of a Tax Equity Distribution Statement or other periodic report or compliance statement by a Group Member to a Tax Equity Investor or (2) the receipt of a Tax Equity Distribution Statement or other periodic report or compliance statement by a Group Member from a Tax Equity Investor, a true, correct and complete copy of such Tax Equity Distribution Statement or other periodic report or compliance statement. The Borrower and each Lender hereby acknowledges that (a) the Administrative Agent may, at the cost of the Borrower, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Intralinks or other website (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non- public information with respect to the Borrower and its Subsidiaries or their respective securities) (each, a “Public Lender”). At the request of the Administrative Agent, the Borrower hereby agrees to make all Borrower Materials that the Borrower intends to be made available to Public Lenders clearly and conspicuously designated as “PUBLIC”. By designating Borrower Materials as “PUBLIC”, the Borrower authorizes such Borrower Materials to be made available to a portion of the Platform designated “Public Investor”, which is intended to contain only information that is publicly available or not material information (though it may be sensitive and proprietary) with respect to the Borrower and its Subsidiaries or their respective securities for purposes of United States federal and state securities laws or is of a type that would be publicly available if the Borrower or its Subsidiaries were a public reporting company (in each case, as reasonably determined by the Collateral Manager). Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Borrower Materials “PUBLIC”. The Borrower agrees that (i) any Loan Documents, (ii) any financial statements delivered pursuant to Section 6.01 and (iii) any Compliance Certificates delivered pursuant to Section 6.02(a) and (iv) notices delivered pursuant to Section 6.03(a) will be deemed to be “public-side” Borrower Materials and may be made available to Public Lenders. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws. The Platform is provided “as is” and “as available.” The Agent-Related Persons do not warrant the adequacy of the Platform. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent-Related Person in connection with the Platform.
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99 to participate in any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in this Section 6.10, neither of the Borrower nor any Subsidiary shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes non- financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Blackstone Representative, the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) is subject to attorney-client or similar privilege or constitutes attorney work-product. If reasonably requested by the Blackstone Representative on behalf of the Lenders, participate in meetings with the Blackstone Representative and the Lenders from time to time, each such meeting to be held at a location in New York City and at a time reasonably determined by the Borrower and the Collateral Manager following such request; provided that, so long as no Event of Default has occurred and is continuing, such meetings shall not be held more than once per calendar year. Section 6.11 Additional Collateral; Additional Guarantors. At the Borrower’s expense, take all action necessary or reasonably requested by the Blackstone Representative, the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including: (a) Upon (x) the formation or acquisition of any new direct or indirect Domestic Subsidiary (in each case, other than to the extent the Equity Interests of such Subsidiary constitute Excluded Equity Interests) by the Borrower or (y) the Equity Interests of a direct or indirect Domestic Subsidiary ceasing to constitute Excluded Equity Interests, in each case, to the extent Equity Interests in such Subsidiary described in the preceding clause (x) or (y) otherwise constitutes Collateral under the Collateral and Guarantee Requirement: (i) within sixty (60) days after such formation or acquisition, or such longer period as the Blackstone Representative may agree in writing in its discretion (or, in connection with an acquisition, on the date of such acquisition in accordance with Section 4.03): (A) cause each such Subsidiary to execute and deliver to the Administrative Agent and the Collateral Agent a Contribution Agreement pursuant to which such additional Collateral shall be contributed, a Guarantee Assumption Agreement to the Security Agreement pursuant to which such Subsidiary becomes a Guarantor and a Pledgor thereunder, in each case to the extent required by the Collateral and Guarantee Requirement, and shall deliver to the Administrative Agent such legal opinions as are consistent with those delivered on the Closing Date under Section 4.01 or on the Initial Borrowing Date under Section 4.02 hereof with respect to such Subsidiary, in accordance with Section 4.03; (B) cause each such Subsidiary, or the parent of such Subsidiary, as applicable, to deliver any and all certificates representing Equity Interests in such Subsidiary (to the extent certificated) that are required to be pledged pursuant to (and subject to the applicable limitations and exceptions of) the Collateral and
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104 (5) conduct its business solely in its own name and strictly comply with all organizational formalities necessary to maintain its separate existence; (6) maintain books and records separate from any other Person (other than Subsidiaries of the Borrower, the books and records of which are consolidated with the Borrower); (7) maintain separate financial statements (it being understood that (x) the financial statements of Subsidiaries of the Borrower may be part of a consolidated group with the Borrower and (y) if the Borrower’s financial statements are part of a consolidated group with its Affiliates, then any such consolidated statements shall contain a note indicating the Borrower’s separateness from any such Affiliates and that its assets and credit are not available to pay the debts or obligations of such Affiliate other than lawful and properly recorded distributions as expressly permitted under Section 7.06); (8) pay its own liabilities only out of its own funds; (9) except as set forth in Section 7.07, not enter into a contract, agreement or transaction with any member, manager, guarantor or Affiliate of the Borrower or any member, manager, guarantor or Affiliate thereof, except in the ordinary course of business and on terms which are intrinsically fair, commercially reasonable and substantially similar to those of an arm’s-length transaction with an unrelated third party; (10) hold itself out as a separate Person (except to the extent treated as a disregarded entity for applicable tax purposes), not guarantee or become obligated for the debts or obligations of any other Person, and not hold out its credit or assets as being available to satisfy the debts or obligations of any other Person; (11) pay its fair and reasonable share of shared expenses with its Affiliates, including for shared office space, if any; (12) use separate stationery, invoices and checks and not of any other entity (unless such entity is clearly designated as being the Borrower’s agent or the Borrower is clearly designated as being the applicable counterparty to the transaction giving rise to such invoice or check); (13) except for the Limited Guarantee and the Security Agreement, not hold out the assets or credit of any other Person as being available to satisfy any of its debts or obligations; (14) not pledge its assets or credit as security for the obligations of any other Person, other than with respect to its Subsidiaries to the extent expressly permitted under Section 7.01; (15) correct any known misunderstanding regarding its separate identity;
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105 (16) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities solely from its own assets; (17) except for its Subsidiaries, not acquire obligations or securities of its managers, members or Affiliates, as applicable; (18) maintain a sufficient number of employees (if any) in light of its contemplated business operations (notwithstanding the foregoing, the Borrower does not require employees to operate its business as of the date hereof); and (19) not take any Material Action without the unanimous affirmative vote of each member of its board of directors, including, in all cases, each of its Independent Directors. (d) Additional Equity Holder Requirements. The Equity Holder shall: (1) at all times hold itself out to the public as a legal entity separate from the Member and any other Person; (2) file its own tax returns, if any, as may be required under applicable law (to the extent not treated as a “disregarded entity” for tax purposes), and pay any taxes so required to be paid under applicable law solely from its own funds; (3) not commingle its assets with assets of any other Person; (4) not maintain its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person (5) conduct its business solely in its own name and strictly comply with all organizational formalities necessary to maintain its separate existence; (6) maintain books and records separate from any other Person (other than Subsidiaries of the Equity Holder, the books and records of which are consolidated with the Equity Holder); (7) maintain separate financial statements (it being understood that (x) the financial statements of Subsidiaries of the Equity Holder may be part of a consolidated group with the Equity Holder and (y) if the Equity Holder’s financial statements are part of a consolidated group with its Affiliates, then any such consolidated statements shall contain a note indicating the Equity Holder’s separateness from any such Affiliates and that its assets and credit are not available to pay the debts or obligations of such Affiliate other than lawful and properly recorded distributions as expressly permitted under Section 7.06); (8) pay its own liabilities only out of its own funds;
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106 (9) except as set forth in Section 7.07, not enter into a contract, agreement or transaction with any member, manager, guarantor or Affiliate of the Borrower or any member, manager, guarantor or Affiliate thereof, except in the ordinary course of business and on terms which are intrinsically fair, commercially reasonable and substantially similar to those of an arm’s-length transaction with an unrelated third party; (10) hold itself out as a separate Person (except to the extent treated as a disregarded entity for applicable tax purposes), not guarantee or become obligated for the debts or obligations of any other Person, and not hold out its credit or assets as being available to satisfy the debts or obligations of any other Person, except, for the avoidance of doubt, with respect to the Borrower pursuant to the Security Agreement; (11) pay its fair and reasonable share of shared expenses with its Affiliates, including for shared office space, if any; (12) use separate stationery, invoices and checks and not of any other entity (unless such entity is clearly designated as being the Equity Holder’s agent or the Equity Holder is clearly designated as being the applicable counterparty to the transaction giving rise to such invoice or check); (13) not hold out the assets or credit of any other Person as being available to satisfy any of its debts or obligations; (14) except with respect to (i) the Borrower pursuant to the Security Agreement and (ii) its Subsidiaries to the extent expressly permitted under Section 7.01, not pledge its assets or credit as security for the obligations of any other Person; (15) correct any known misunderstanding regarding its separate identity; (16) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities solely from its own assets; (17) except for its Subsidiaries, not acquire obligations or securities of its managers, members or Affiliates, as applicable; (18) maintain a sufficient number of employees (if any) in light of its contemplated business operations (notwithstanding the foregoing, the Equity Holder does not require employees to operate its business as of the date hereof); and (19) not take any Material Action without the unanimous affirmative vote of each member of its board of directors, including, in all cases, each of its Independent Directors.
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107 (e) Additional Loan Party Requirements. Each Loan Party (other than the Borrower and the Equity Holder) shall: (1) at all times hold itself out to the public as a legal entity separate from the Member and any other Person; (2) file its own tax returns, if any, as may be required under applicable law (to the extent (x) not part of a consolidated group filing a consolidated return or returns or (y) not treated as a division for tax purposes of another taxpayer) and pay any taxes so required to be paid under applicable law; (3) not commingle its assets with assets of any other Person (other than a Project Company’s assets with the assets of another Project Company, but solely to the extent that such commingling (i) is not material and (ii) is effected in accordance with the past practices of the Group Members); (4) conduct its business in its own name and strictly comply with all organizational formalities necessary to maintain its separate existence (other than customary reimbursement arrangements in connection with SREC Agreements and operating expenses); (5) maintain books and records separate from any other Person (other than Subsidiaries of the Borrower the books and records of which are consolidated with the Borrower); (6) maintain separate financial statements (it being understood that the financial statements of Subsidiaries of the Borrower may be part of a consolidated group with the Borrower); (7) pay its own liabilities only out of its own funds (other than customary reimbursement arrangements in connection with SREC Agreements and operating expenses); (8) maintain an arm’s-length relationship with its Affiliates to the extent required pursuant to Section 7.07 (other than customary reimbursement arrangements in connection with SREC Agreements and operating expenses); (9) hold itself out as a separate Person (except to the extent treated as a disregarded entity for applicable tax purposes), not guarantee or become obligated for the debts or obligations of any other Person (other than to secure the obligations of the Borrower pursuant to the Security Agreement), and not hold out its credit or assets as being available to satisfy the debts or obligations of any other Person, except, for the avoidance of doubt, (a) pursuant to the Security Agreement or (b) to the extent expressly permitted under this Agreement and the other Loan Documents; (10) pay its fair and reasonable share of overhead for shared office space, if any;
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111 (d) Liens (i) securing judgments or orders for the payment of money not constituting an Event of Default under Section 8.01(h) or (ii) securing appeal or other surety bonds related to such judgments; (e) Liens in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions; (f) Liens that are contractual rights of set-off or rights of pledge relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness; (g) In the case of any Group Member, the rights of the Material Project Participants under the Material Project Documents to which such Group Member is a party; and (h) In the case of Group Members other than the Equity Holder, the Borrower and the Tax Equity HoldCos: (1) statutory or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or like Liens arising by operation of law in the ordinary course of business of such Project Company for sums that are not overdue or are being contested in good faith and by appropriate actions diligently conducted; (2) pledges, deposits or Liens in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, liability or casualty insurance to such Group Members; (3) pledges, deposits or Liens to secure environmental remedial, statutory or regulatory obligations incurred in the ordinary course of business of any Group Members; (4) easements, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and other minor title defects affecting Real Property that do not in the aggregate materially interfere with the ordinary conduct of the business of such Group Members, taken as a whole; (5) Liens in favor of any other Loan Party; (6) any interest or title of a lessor, sublessor, licensor or sublicensor under Permitted Contracts entered into by such Group Members in the ordinary course of business;
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114 (c) Indebtedness incurred by any Group Member in connection with an Investment or Disposition expressly permitted hereunder, in each case, constituting indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments; (d) In the case of Group Members other than the Equity Holder, the Borrower and the Tax Equity HoldCos: (1) Solely with respect to Tax Equity Parties, Indebtedness expressly permitted pursuant to the applicable Tax Equity Documents (including, for the avoidance of doubt, Indebtedness incurred by any Tax Equity Party that is substantially simultaneously incurred and forgiven, canceled or terminated); (2) Permitted Intercompany Debt and any refinancing thereof with Permitted Intercompany Debt in a principal amount that does not exceed the principal amount (or accreted value, if applicable) of the Permitted Intercompany Debt so refinanced; (3) Indebtedness consisting of Permitted Hedge Agreements; (4) Indebtedness incurred by such Group Members in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business, including in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof; (5) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by such Group Members or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business and consistent with past practice of the Group Members (as determined in good faith by the Collateral Manager in accordance with the Management Standard); (6) to the extent constituting Indebtedness, Permitted Tax Equity Financings; (7) Indebtedness consisting of reimbursement obligations under a letter of credit supporting Indebtedness permitted pursuant to any other clause of this Section 7.03; and (8) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of such Group Member’s business operation so long as such trade accounts are (i) not more than ninety (90) days past due or (ii) being contested in good faith and by appropriate proceedings and in respect of which adequate reserves are in place in form and substance reasonably satisfactory to the Blackstone Representative; and
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125 together with any investments in which funds included in such property are or will be invested or reinvested during the term of this Agreement, and any income or other gain realized from such investments, shall be held by the Collateral Agent in the Collection Account as part of the Collateral subject to disbursement and withdrawal as provided in this Section 9.02. By Borrower Order (which may be in the form of standing instructions), the Borrower shall at all times direct the Collateral Agent to, and, upon receipt of such Borrower Order, the Collateral Agent shall, invest all funds received into the Collection Account during a Due Period, and amounts received in prior Due Periods and retained in the Collection Account, as so directed in Eligible Investments having stated maturities no later than the second Business Day immediately preceding the next Payment Date. (c) If, prior to the occurrence of an Event of Default, the Borrower shall not have given any investment directions pursuant to Section 9.02(b), the Collateral Agent shall seek instructions from the Borrower within one Business Day after transfer of such funds to the Collection Account. If the Collateral Agent does not thereupon receive written instructions from the Borrower within five Business Days after transfer of such funds to the Collection Account, the funds held in the Collection Account shall remain uninvested. If, after the occurrence of an Event of Default, the Blackstone Representative (acting at the direction of the Required Lenders) shall not have given investment directions to the Collateral Agent pursuant to Section 9.02(b) for three consecutive Business Days, the Collateral Agent shall invest such funds in the U.S. Bank Money Market Deposit Account (or other standing Eligible Investment selected by the Blackstone Representative) maturing not later than the earlier of (1) 30 days after the date of such investment and (2) the Business Day immediately preceding the next Payment Date. All interest and other income from such investments shall be deposited in the Collection Account, any gain realized from such investments shall be credited to the Collection Account, and any loss resulting from such investments shall be charged to the Collection Account. (d) The Collateral Agent shall, in accordance with the Payment Date Report, transfer to the Payment Account for application pursuant to Section 9.08(a), on or about the Business Day (but in no event more than two Business Days) prior to each Interest Payment Date, any cash then held in the Collection Account other than Collections or income earned on amounts on deposit in the Debt Service Reserve Account or Reinvestment Account received, or amounts transferred from the Debt Service Reserve Account or Reinvestment Account, after the end of the Due Period with respect to such Interest Payment Date. In addition, (i) on the Closing Date, the Borrower shall be entitled to instruct the Collateral Agent to withdraw amounts from the Collection Account to remit to the Administrative Agent for distribution of Upfront Fees payable to the Lenders and (ii) on each date of a Borrowing, the Borrower shall be entitled to instruct the Collateral Agent to withdraw amounts from the Collection Account to remit such amounts in accordance with the flow of funds memorandum providing with the related Committed Loan Notice. (e) The Collateral Agent agrees to give the Borrower and the Lenders prompt notice if an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Collection Account or any funds on deposit therein, or otherwise to the credit of the Collection Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process.
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127 herein, and the sole right of withdrawal. Any and all funds at any time on deposit in, or otherwise to the credit of, the Closing Expense Account shall be held by the Collateral Agent for the benefit of the Lenders (and the other Secured Parties). All Transaction Expenses shall be paid by the Borrower. On or prior to the Initial Borrowing Date, the Borrower shall deposit $0 into the Closing Expense Account in accordance with the preceding sentence, given all Transaction Expenses will be paid by the Borrower on the Initial Borrowing Date. On any Business Day during the period that the Closing Expense Account is open, the Collateral Agent shall apply funds (if any) from the Closing Expense Account, as directed by the Borrower or the Collateral Manager, to pay Transaction Expenses. Upon the delivery on any date that is at least 60 days after the Initial Borrowing Date of a Borrower Order instructing the Collateral Agent to close the Closing Expense Account, all funds (if any) in the Closing Expense Account will be distributed with respect to the Equity Interests of the Borrower (which distribution shall not be considered a Restricted Payment) and the Closing Expense Account will be closed. By Borrower Order (which may be in the form of standing instructions), the Borrower may at any time direct the Collateral Agent to, and, upon receipt of such Borrower Order, the Collateral Agent shall, invest any funds in the Closing Expense Account as so directed by the Borrower in Eligible Investments. Any income earned on amounts deposited in the Closing Expense Account will be deposited in the Closing Expense Account as it is received. The Collateral Agent agrees to give the Borrower immediate notice if an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Closing Expense Account or any funds on deposit therein, or otherwise to the credit of the Closing Expense Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Closing Expense Account shall remain at all times with an Eligible Account Bank. The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Closing Expense Account shall be in accordance with the provisions of this Section 9.03(b). (c) Debt Service Reserve Account. The Collateral Agent shall, on or prior to the Closing Date, establish a single, segregated non-interest bearing account in the name “APA FINANCE III BORROWER, LLC Debt Service Reserve Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Debt Service Reserve Account” and which shall be governed solely by the terms of this Agreement and the Account Control Agreement. The Collateral Agent shall have exclusive control over such account, subject to the Borrower’s right to give instructions specified herein, and the sole right of withdrawal. Any and all funds at any time on deposit in, or otherwise to the credit of, the Debt Service Reserve Account and any DSR L/Cs delivered in respect thereof shall be held by the Collateral Agent for the benefit of the Lenders (and the other Secured Parties). On or prior to the Initial Borrowing Date, the Borrower shall deposit funds into the Debt Service Reserve Account and/or deliver DSR L/Cs to the Collateral Agent in respect thereof in an aggregate amount of Funded DSR greater than or equal to the DSRA Amount on the Initial Borrowing Date. On each Quarterly Payment Date, the Collateral Agent shall deposit funds into the Debt Service Reserve Account as expressly set forth in the Priority of Payments. On any Interest Payment Date, to the extent that following the application of funds in the Payment Account in accordance with Section 9.08(a) any amounts payable under Section 9.08(a)(i)(D) remain outstanding (such outstanding amount, the “Interest Deficiency”), the Collateral Agent shall, as directed in the related Payment Date Report, (a) apply funds on deposit in the Debt Service Reserve Account towards the Interest Deficiency until paid in full and (b) if any Interest Deficiency remains following such application of funds, at the direction of the Blackstone Representative, draw any DSR L/Cs in an amount equal to the remaining Interest
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128 Deficiency (or, if less, the aggregate undrawn face amount of all DSR L/Cs) and apply the proceeds of such DSR L/Cs towards the Interest Deficiency until paid in full (in each case, in the order of priority set forth in Section 9.08(a)(i)(D)). If any LC Default occurs with respect to any DSR L/C, the Collateral Agent shall, upon request therefor from the Blackstone Representative, draw the full amount available on such DSR L/C and deposit the proceeds of such drawing in the Debt Service Reserve Account. If in respect of any Interest Payment Date the Funded DSR exceeds the DSRA Amount, on or about one Business Day prior to such Interest Payment Date the Collateral Agent shall, at the instruction of the Blackstone Representative, transfer to the Payment Account for application in accordance with Section 9.08(a) an amount equal to the lesser of (a) such excess amount and (b) the amount of funds on deposit in the Debt Service Reserve Account and reduce the available amount of any DSR L/C by any remaining excess amount. By Borrower Order (which may be in the form of standing instructions), the Borrower may at any time direct the Collateral Agent to, and, upon receipt of such Borrower Order, the Collateral Agent shall, invest all funds in the Debt Service Reserve Account as so directed by the Borrower in Eligible Investments. Any income earned on amounts deposited in the Debt Service Reserve Account will be deposited in the Collection Account as it is received. The Collateral Agent agrees to give the Borrower immediate notice if an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Debt Service Reserve Account or any funds on deposit therein, or otherwise to the credit of the Debt Service Reserve Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Debt Service Reserve Account shall remain at all times with an Eligible Account Bank. The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Debt Service Reserve Account shall be in accordance with the provisions of this Section 9.03(c). (d) Expense Reserve Account. The Collateral Agent shall, on or prior to the Closing Date, establish a single, segregated non-interest bearing account in the name “APA FINANCE III BORROWER, LLC Expense Reserve Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Expense Reserve Account” and which shall be governed solely by the terms of this Agreement and the Account Control Agreement. The Collateral Agent shall have exclusive control over such account, subject to the Borrower’s right to give instructions specified herein, and the sole right of withdrawal. Any and all funds at any time on deposit in, or otherwise to the credit of, the Expense Reserve Account shall be held by the Collateral Agent for the benefit of the Lenders (and the other Secured Parties). On or prior to the Initial Borrowing Date, the Borrower shall deposit cash in U.S. dollars in an amount equal to the Expense Reserve Amount into the Expense Reserve Account. On each Interest Payment Date, the Collateral Agent shall deposit funds into the Expense Reserve Account as expressly set forth in the Priority of Payments. Upon direction by a Borrower Order, the Collateral Agent shall apply funds on deposit in the Expense Reserve Account solely to pay Administrative Expenses due and payable at such time, which shall be paid in the order of priority set forth in the definition thereof. On the second Business Day prior to the Maturity Date, the Borrower, by Borrower Order, shall direct the Collateral Agent to transfer all amounts on deposit in the Expense Reserve Account to the Payment Account for application in accordance with the Priority of Payments. By Borrower Order (which may be in the form of standing instructions), the Borrower may at any time direct the Collateral Agent to, and, upon receipt of such Borrower Order, the Collateral Agent shall, invest all funds in the Expense Reserve Account as so directed by the Borrower in Eligible Investments. Any income earned on amounts deposited in the Expense Reserve Account will be deposited in the Collection Account as it is received. The Collateral Agent agrees to give the Borrower immediate notice if
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129 an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Expense Reserve Account or any funds on deposit therein, or otherwise to the credit of the Expense Reserve Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Expense Reserve Account shall remain at all times with an Eligible Account Bank. The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Expense Reserve Account shall be in accordance with the provisions of this Section 9.03(d). (e) Reinvestment Account. The Collateral Agent may, at any time a Reinvestment Period (if any) is in effect, establish a single, segregated non-interest bearing account in the name “APA FINANCE III BORROWER, LLC Reinvestment Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Reinvestment Account” and which shall be governed solely by the terms of this Agreement and the Account Control Agreement. The Collateral Agent shall have exclusive control over such account, subject to the Borrower’s right to give instructions specified herein, and the sole right of withdrawal. Any and all funds at any time on deposit in, or otherwise to the credit of, the Reinvestment Account shall be held by the Collateral Agent for the benefit of the Lenders (and the other Secured Parties). Upon receipt of Reinvestment Proceeds from the Borrower, the Collateral Agent shall deposit such Reinvestment Proceeds into the Reinvestment Account (or a subaccount thereof). Upon direction by a Borrower Order, the Collateral Agent shall apply Reinvestment Proceeds on deposit in the Reinvestment Account solely towards Permitted Reinvestments (including Permitted Acquisitions, provided the requirements for Permitted Acquisitions set forth in this Agreement are satisfied) identified by the Borrower. If at any time any Reinvestment Proceeds become Uninvested Proceeds, the Borrower (or the Collateral Manager on its behalf) shall direct the Collateral Agent to transfer such Uninvested Proceeds for application towards the prepayment of the Loans pursuant to Section 2.03(b); provided that in the case of any Uninvested Proceeds arising from Extraordinary Receipts, the Borrower (or the Collateral Manager on its behalf) shall direct the Collateral Agent that 50% of such proceeds shall be transferred to the Collection Account for application in accordance with the Priority of Payments and the remaining 50% of such proceeds shall be transferred for application towards the prepayment of the Loans pursuant to Section 2.03(b). By Borrower Order (which may be in the form of standing instructions), the Borrower may at any time direct the Collateral Agent to, and, upon receipt of such Borrower Order, the Collateral Agent shall, invest all funds in the Reinvestment Account as so directed by the Borrower in Eligible Investments. Any income earned on amounts deposited in the Reinvestment Account will be deposited in the Collection Account as it is received. The Collateral Agent agrees to give the Borrower immediate notice if an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Reinvestment Account or any funds on deposit therein, or otherwise to the credit of the Reinvestment Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Reinvestment Account shall remain at all times with an Eligible Account Bank. The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Reinvestment Account shall be in accordance with the provisions of this Section 9.03(e). (f) Equity Account. The Collateral Agent shall, on or prior to the Closing Date, establish a single, segregated non-interest bearing account in the name “APA FINANCE III BORROWER, LLC Equity Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Equity Account” and which shall be governed solely by the terms of this
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130 Agreement and the Account Control Agreement. The Collateral Agent shall have exclusive control over such account, subject to the Borrower’s right to give instructions specified herein, and the sole right of withdrawal. Any and all funds at any time on deposit in, or otherwise to the credit of, the Equity Account shall be held by the Collateral Agent for the benefit of the Lenders (and the other Secured Parties). On each Quarterly Payment Date the Collateral Agent shall deposit funds into the Equity Account as expressly set forth in the Priority of Payments. In addition, after the Closing Date, Equity Contributions may be deposited into the Equity Account from time to time. Upon direction by a Borrower Order, the Collateral Agent shall apply amounts on deposit in the Equity Account (1) to Investments permitted under Section 7.02, (2) to prepay the Loans pursuant to Section 2.03, (3) to deposit funds in the Buyout Reserve Account and (4) to make Restricted Payments. By Borrower Order (which may be in the form of standing instructions), the Borrower may at any time direct the Collateral Agent to, and, upon receipt of such Borrower Order, the Collateral Agent shall, invest all funds in the Equity Account as so directed by the Borrower in Eligible Investments. Any income earned on amounts deposited in the Equity Account will be deposited in the Equity Account as it is received. The Collateral Agent agrees to give the Borrower and the Blackstone Representative immediate notice if an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Equity Account or any funds on deposit therein, or otherwise to the credit of the Equity Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Equity Account shall remain at all times with an Eligible Account Bank. The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Equity Account shall be in accordance with the provisions of this Section 9.03(f). (g) Quarterly Payment Date Account. The Collateral Agent shall, on or prior to the Closing Date, establish a single, segregated non-interest bearing account in the name “APA FINANCE III BORROWER, LLC Quarterly Payment Date Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Quarterly Payment Date Account” and which shall be governed solely by the terms of this Agreement and the Account Control Agreement. The Collateral Agent shall have exclusive control over such account and the sole right of withdrawal. Any and all funds at any time on deposit in, or otherwise to the credit of, the Quarterly Payment Date Account shall be held by the Collateral Agent for the benefit of the Lenders (and the other Secured Parties). On each Interest Payment Date, the Collateral Agent shall deposit funds into the Quarterly Payment Date Account as expressly set forth in the Priority of Payments (with the amount so deposited in the Quarterly Payment Date Account on such Interest Payment Date being the “Quarterly Payment Date Reserve Amount” for such Interest Payment Date). On the date that is two Business Days before the Quarterly Payment Date associated with such Interest Payment Date, the Borrower, by Borrower Order, shall direct the Collateral Agent to transfer funds from the Quarterly Payment Date Account to the Payment Account, for application under the Priority of Payments on such Quarterly Payment Date, in an amount equal to the Quarterly Payment Date Reserve Amount for such Quarterly Payment Date. By Borrower Order (which may be in the form of standing instructions), the Borrower may at any time direct the Collateral Agent to, and, upon receipt of such Borrower Order, the Collateral Agent shall, invest all funds in the Quarterly Payment Date Account as so directed by the Borrower in Eligible Investments. Any income earned on amounts deposited in the Quarterly Payment Date Account will be deposited in the Collection Account as it is received. The Collateral Agent agrees to give the Borrower immediate notice if an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Quarterly Payment Date Account or any funds on
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132 trust company which (i) is not an Affiliate of the Borrower, (ii) has a combined capital and surplus of at least U.S. $200,000,000, (iii) is an Eligible Account Bank and (iv) is a securities intermediary. The rights, protections, immunities and indemnities afforded to the Collateral Agent under this Agreement shall also be afforded to the Custodian. (b) The Collateral Agent shall, on or prior to the Closing Date, establish a single, segregated non-interest bearing account in the name “APA FINANCE III BORROWER, LLC, Custodial Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Custodial Account” and which shall be governed solely by the terms of this Agreement and the Account Control Agreement. The Collateral Agent shall have exclusive control over such account, subject to the Borrower’s right to give instructions specified herein, and the sole right of withdrawal. Any and all assets or securities at any time on deposit in, or otherwise to the credit of, the Custodial Account shall be held by the Collateral Agent for the benefit of the Lenders (and the other Secured Parties). Except in connection with a liquidation pursuant to Article VIII, the only permitted withdrawal from the Custodial Account or in, or otherwise to the credit of, the Custodial Account shall be as directed, upon Borrower Order, in accordance with the provisions hereof. The Collateral Agent agrees to give the Borrower and the Lenders immediate notice if an Administrative Officer of the Collateral Agent obtains actual knowledge of or receives written notice that the Custodial Account or any assets or securities on deposit therein, or otherwise to the credit of the Custodial Account, has become subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Custodial Account shall remain at all times with an Eligible Account Bank and shall remain uninvested. (c) The Custodian shall comply with entitlement orders originated by the Collateral Agent without the further consent of any other person or entity. Without limiting the generality of the foregoing, if the Collateral Agent notifies the Custodian that the Collateral Agent shall exercise exclusive control over any of the Collateral Accounts, the Custodian shall cease complying with entitlement orders or other directions relating to any such Collateral Accounts (or any financial assets or other funds or property credited to or held, deposited, or carried in such Collateral Accounts) originated by the Borrower or any other Person or entity other than the Collateral Agent. The Custodian shall agree, and U.S. Bank as Custodian hereby agrees, with the Collateral Agent that (1) each Collateral Account shall constitute a securities account, (2) subject to the Control Agreements, all property credited to each Collateral Account shall be treated as a “financial asset” for purposes of the UCC, (3) the Custodian shall treat the Collateral Agent as entitled to exercise the rights that comprise each financial asset credited to each Collateral Account, (4) subject to the Control Agreements, the Custodian shall not agree with any person or entity other than the Collateral Agent to comply with entitlement orders originated by any person or entity other than the Collateral Agent, (5) each Collateral Account and all property credited to each such Collateral Account shall not be subject to any lien, security interest, right of set-off, or encumbrance in favor of the Custodian or any person or entity claiming through the Custodian (other than the Collateral Agent) except for the right to debit for any item returned by reason of non-sufficient funds, (6) the State of New York shall be the Custodian’s jurisdiction for purposes of the UCC, and (7) such agreement between the Custodian and the Collateral Agent shall be governed by the laws of the State of New York.
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135 determined in accordance with the terms and conditions set forth herein and in the other Loan Documents (and including, for each such payment, all related Payee Information); (2) in the case of a Quarterly Payment Date: (i) (x) the amount deposited into the Quarterly Payment Date Account with respect thereto and (y) the amounts proposed to be applied under the Quarterly Payment Date Priority of Payments on such Quarterly Payment Date, all determined in accordance with the terms and conditions set forth herein and in the other Loan Documents (and including, for each such payment, all related Payee Information); (ii) the Borrower’s calculation of the LTV Ratio for the most recently ended Test Period; (iii) the Borrower’s calculation of the Debt Service Coverage Ratio for the most recently ended Test Period; and (iv) the then-current Buyout Reserve Amount; (3) upon the Blackstone Representative’s request (but not more than twice in any in any twelve (12) month period, unless an Event of Default or an Early Amortization Event has occurred and is continuing), Borrower shall use commercially reasonable efforts to provide reporting on Project Company Expenses; (4) such other information as the Administrative Agent or the Blackstone Representative may reasonably request in relation to the scope of information referred to in clauses (1) and (2) above, respectively. The Administrative Agent and the Blackstone Representative will cooperate with the Borrower in the preparation of each Draft Payment Date Report and will, among other things, provide its calculations and determinations of the amounts payable to the Lenders on such Payment Date. Each Draft Payment Date Report (including, without limitation, the calculations under clause (2)(ii), (iii) and (iv) above) shall be subject to verification and approval by the Blackstone Representative. If the Blackstone Representative believes that any additional information is reasonably needed to verify such information or calculations, then the Borrower shall promptly provide such information to the Blackstone Representative. If the Blackstone Representative believes that any information or calculation in any Draft Payment Date Report is incorrect in any material respect, then the Blackstone Representative and the Borrower shall consult in good faith to resolve such disagreement prior to the related Payment Date. (b) If a Draft Payment Date Report has been delivered by the Borrower for such Payment Date under paragraph (a) above, and the Blackstone Representative and the Borrower have agreed to the information and calculations set forth therein (or to any revisions thereto) on or
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137 (i) On each Interest Payment Date, the Collateral Agent shall disburse amounts transferred to the Payment Account from the Collection Account pursuant to Section 9.02(d) as follows and for application in accordance with the following priorities (the “Interest Payment Date Priority of Payments”): (A) to the payment of taxes of the Borrower, if any, and any governmental fee, including all filing, registration and annual return fees payable by them; (B) to the payment of the following amounts in the following priority (without duplication): (1) accrued and unpaid Administrative Expenses in the order set forth in the definition thereof; and (2) on any Interest Payment Date other than the final Interest Payment Date, to the Expense Reserve Account in an amount equal to (a) the Expense Reserve Amount minus (b) the amount on deposit in the Expense Reserve Account at such time; provided that the aggregate amount of payments under this clause (B) shall not exceed the Quarterly Cap on any Interest Payment Date during a calendar quarter; (C) unless waived by the Collateral Manager (or its designee), which waiver shall be permanent and irrevocable, to the payment to the Collateral Manager (or its designee) of all due and unpaid Management Fees; (D) in the following order of priority: (1) first, to the applicable Lenders for payment (on a pro rata basis) of accrued interest on the Class A Loans and any Make-Whole Amount on the Class A Loans, in each case due on such Interest Payment Date; and (2) second, to the applicable Lenders for payment (on a pro rata basis) of accrued interest on the Class B Loans and any Make-Whole Amount on the Class B Loans, in each case due on such Interest Payment Date; (E) to the Lenders for payment (on a pro rata basis) of all other amounts due and payable on such Interest Payment Date (other than principal of the Loans); (F) the lesser of (x) the Amortization Amount and (y) 100% of remaining cash on deposit in the Payment Account shall be applied (on a pro rata basis as between Class A and Class B) to repay the principal of the Loans; and (G) all remaining funds to be deposited in the Quarterly Payment Date Account. (ii) On each Quarterly Payment Date, the Collateral Agent shall, in accordance with the related Payment Date Report, disburse amounts transferred to the Payment Account from the Quarterly Payment Date Account pursuant to Section 9.03(g) as follows and for application in accordance with the following priorities (the “Quarterly Payment Date Priority of Payments”):
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138 (A) if the Funded DSR is less than the DSRA Amount, an amount equal to the excess of the DSRA Amount over the Funded DSR shall be deposited in the Debt Service Reserve Account. (B) if an Early Amortization Event has occurred and is then continuing, all remaining cash on deposit in the Payment Account shall be applied: (1) first, to repay the principal of the Class A Loans, until such Early Amortization Event is cured on a pro forma basis or the Class A Loans are repaid in full; and (2) second, to repay the principal of the Class B Loans, until such Early Amortization Event is cured on a pro forma basis or the Class B Loans are repaid in full; provided that in each case in respect of any cure of an Early Amortization Event, such Early Amortization Event may only be cured if (x) it occurred solely as a result of the LTV Ratio exceeding the Maximum LTV Ratio and (y) after giving effect to such application of cash, the LTV Ratio is less than or equal to the Maximum LTV Ratio; (C) to the payment of Permitted Tax Distributions; (D) to the payment of Administrative Expenses (in the order of priority set forth in the definition thereof) to the extent not paid on the Interest Payment Date relating to such Quarterly Payment Date as a result of the limitation set forth in clause (i)(B) above with respect to such Interest Payment Date; (E) on any Quarterly Payment Date other than the final Quarterly Payment Date, to the Buyout Reserve Account in an amount equal to (a) the Buyout Reserve Amount at such time minus (b) the amount on deposit in the Buyout Reserve Account at such time; and (F) remaining cash on deposit in the Payment Account, at the sole discretion and direction of the Borrower (or the Collateral Manager on its behalf), (1) to be applied to prepay the principal of the Loans pursuant to Section 2.03(a); (2) to make any Permitted Acquisitions; (3) to make any Intercompany Investment, Existing Investment or Permitted Buyout; (4) to be held in the Collection Account and/or (5) if and only if Restricted Payment Conditions are satisfied on such date, to be transferred to the Equity Account or to Holdings (or such other Person designated by the Borrower), in each case, in accordance with such instructions and in such amounts as are specified by the Collateral Manager or Borrower to the Collateral Agent. (b) If on any Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required pursuant to any clause in the Priority of Payments, the Collateral Agent shall make the disbursements called for in the order and according to the priority set forth under Section 9.08(a) and ratably or in the order provided within a clause, as applicable, in accordance with the respective amounts owing under any such clause to the extent funds are available therefor.
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140 Blackstone Representative) or such other group of Lenders). If the Administrative Agent or the Blackstone Representative requests instructions from the Required Lenders (and, as applicable, the Blackstone Representative) with respect to any covered action (including failure to act) in connection with this Agreement or any Loan Document, the Administrative Agent and the Blackstone Representative shall be entitled to refrain from taking such covered action unless and until the Administrative Agent or the Blackstone Representative shall have received instructions from the Required Lenders (or such other group of Lenders) or the Blackstone Representative with respect thereto; and neither the Administrative Agent nor the Blackstone Representative shall incur liability to any Lender by reason of so refraining. Any Lender providing an instruction, approval or consent to the Administrative Agent shall notify it to the extent that it constitutes a Debt Fund Affiliate or an Affiliated Lender. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, neither the Blackstone Representative, the Administrative Agent nor the Collateral Agent shall have any duties or responsibilities, except those expressly set forth herein, nor shall the Blackstone Representative, the Administrative Agent or the Collateral Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Blackstone Representative, the Administrative Agent or the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) Each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or on trust for) such Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and any co-agents, sub-agents and attorneys-in-fact appointed by the Blackstone Representative, the Administrative Agent or the Collateral Agent pursuant to Section 10.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent), shall be entitled to the benefits of all provisions of this Article X (including Section 10.07, as though such co-agents, sub-agents and attorneys-in- fact were the Collateral Agent under the Loan Documents) as if set forth in full herein with respect thereto. (c) In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (collectively, the “AML Laws”), the Agents are required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Agents. Accordingly, each of the parties agrees to provide to the Agents upon their request from time to time such identifying information and documentation as may be necessary for Agents to comply with the AML Laws.
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142 existence, perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or Participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. Except as expressly provided herein, delivery of any report, information or documents to an Agent shall not constitute constructive notice of any information contained therein or determinable from information contained therein. Without limiting the generality of any terms of this section, the Agents shall have no liability for any failure, inability or unwillingness on the part of the Lenders, the Collateral Manager or the Borrower to provide accurate and complete information on a timely basis to the Agents or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the its part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other failure on the part of any such other party to comply with the terms hereof. The Administrative Agent shall not be required to deliver to any Lender originals or copies of any documents, instruments, notices, communications or other information received by the Administrative Agent from the Borrower, the Collateral Manager, any Lender or any other Person under or in connection with this Agreement or any Loan Document except (1) as specifically provided in this Agreement or any Loan Document and (2) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession of the Administrative Agent at the time of receipt of such request and then only in accordance with such specific request. Under no circumstances shall the Agents be deemed liable for any special, indirect, punitive or consequential damages (including lost profits) even if such Agent has been advised of the likelihood of such damages and regardless of the form of action. No provision of this Agreement or the other Loan Documents shall require the Agents to advance, expend or risk its own funds or otherwise incur any financial liability or expense in the performance of any of its duties hereunder or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk, expense or liability is not reasonably assured to it. The Agents shall not be liable or responsible for delays or failures in the performance of its obligations hereunder arising out of or caused, directly or indirectly, by circumstances beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots, acts of war and interruptions, losses or malfunctions of utilities, computer (hardware or software) or communications services); it being understood that the Agents shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances. No Agent shall have any obligation to determine: (i) if any Collateral or any Project meets the criteria or eligibility restrictions imposed by this Agreement or other Loan Documents, including without limitation in respect of the Eligibility Criteria and the Collateral and Guarantee Requirement, (ii) whether any counterparty constitutes an Acceptable CS Customer or whether any project is an Eligible CS Project, (iii) the Debt Service amount or Buyout Reserve Amount, (iv) the sufficiency, validity, enforceability or genuineness of any DSR L/C, or whether any such letter of credit satisfies the requirements hereunder, (v) any Make-Whole Amount, (vi) whether the Restricted Payment Conditions are satisfied or (vii) whether the delivery conditions specified in Section 9.05 have been satisfied. In
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151 specified on Schedule 11.02(a) hereof. The Document Custodian shall hold all Custody Documents received by it in physical form (or, if applicable, electronic form) at one of its offices in the United States (for purposes hereof, the “Custodial Office”). The Document Custodian may change the Custodial Office at any time and from time to time upon notice to the Borrower, the Collateral Manager, the Collateral Agent, the Blackstone Representative and the Administrative Agent, provided that the replacement Custodial Office shall be an office of the Document Custodian located in the United States. All Custody Documents held by the Document Custodian shall be available for inspection by the Blackstone Representative, the Administrative Agent and the Lenders upon prior written request and during normal business hours of the Document Custodian. Any such inspection shall occur no earlier than five Business Days after such inspection is requested in writing and the costs of such inspection shall be borne by the requesting party. The Blackstone Representative (including its representatives and designees) may not request more than two inspections per year or, if an Event of Default has occurred and is continuing no more than once a month. Notwithstanding anything to the contrary herein, the Document Custodian shall not be required to hold or accept custody of any other document hereunder to the extent such document is of a type not approved for deposit into the custodial vault of the Document Custodian. For the avoidance of doubt, the Document Custodian shall not be required to review or provide any certifications in respect of Custody Documents delivered and held by it. For the avoidance of doubt, other than in respect of Custody Documents, the Document Custodian shall not be required to hold custody of underlying agreements, related contracts or documents related to the Collateral. Any Custody Documents delivered to the Document Custodian shall be accompanied by a checklist identifying such documents and referencing this transaction. After the occurrence and during the continuance of an Event of Default, the Document Custodian agrees to cooperate with the Blackstone Representative and the Collateral Agent (acting at the direction of the Blackstone Representative) in order to take any action that the Blackstone Representative deems necessary or desirable in order for the Collateral Agent to perfect, protect or more fully evidence the security interests granted under the Loan Documents, or to enable any of them to exercise or enforce any of their respective rights hereunder. If the Document Custodian receives instructions from the Collateral Agent, the Collateral Manager or the Borrower that conflict with any instructions received by the Blackstone Representative after the occurrence and during the continuance of an Event of Default, the Document Custodian shall rely on and follow the instructions given by the Blackstone Representative. The Borrower (or the Collateral Manager on its behalf) may cause the release of Custody Documents, in each case (1) to the extent such documents are no longer required to be held hereunder and (2) subject to the written approval by the Blackstone Representative, by delivery of a request for release substantially in the form of Exhibit N hereto from the Borrower (or the Collateral Manager on its behalf) and such request for release shall be deemed a certification that such conditions for release have been satisfied. Upon receipt of such direction and approval by the Blackstone Representative, the Document Custodian shall release the Custody Documents to, or at the direction of, the Collateral Manager, and neither the Borrower nor the Collateral Manager will be required to return the related Custody Documents to the Document Custodian. Written instructions as to the method of shipment and shipper(s) the Document Custodian is directed to utilize in connection with the transmission of Custody Documents in the performance of the Document Custodian’s duties herein shall be delivered by the Borrower or the Collateral Manager, as applicable, to the Document Custodian prior to any shipment of any Custody Documents hereunder. If the Document Custodian does not receive any such written instruction from the Borrower or Collateral Manager, as applicable, the Document
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153 (d) modify any provision of Section 8.04 or 11.01 or the definition of “Required Lenders” or any other provision specifying the number of Lenders or portion of the Loans or Commitments required to take any action under the Loan Documents, in each case, without the written consent of each Lender directly and adversely affected thereby; (e) other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender; (f) other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the aggregate value of the Guarantees provided by the Guarantors, without the written consent of each Lender; (g) modify the relative priority of payment of the Class A and Class B Loans or any provision related thereto without the written consent of each Lender; (h) modify any provision requiring the ratable transfer or assignment of the Class A and Class B Loans without the written consent of each Lender; and (i) modify any provision of Section 2.11 without the written consent of each Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms materially and adversely affects any Defaulting Lender (if such Lender were not a Defaulting Lender) to a greater extent than other affected Lenders shall require the consent of such Defaulting Lender. Notwithstanding anything to the contrary in this Section 11.01, this Agreement and any other Loan Document may be amended solely with the consent of the Blackstone Representative, the Administrative Agent and/or the Collateral Agent (if applicable) and the Borrower without the need to obtain the consent of any other Lender if such amendment is delivered in order (A) to correct or cure ambiguities, errors, omissions or defects, (B) to effect administrative changes of a technical or immaterial nature, (C) to fix incorrect cross references or similar inaccuracies in this Agreement or the applicable Loan Document, (D) add any financial covenant or other terms for the benefit of all Lenders or any Class of Lenders pursuant to the conditions imposed on the incurrence of any Indebtedness set forth elsewhere in this Agreement, or (E) to implement amendments permitted by this Agreement or the other Collateral Documents that do not by the terms of other Collateral Documents require lender consent, and, in each case of clauses (A), (B) and (C), such amendment shall become effective without any further action or the consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof. The Collateral Documents and related documents in connection with this Agreement and the other Loan Documents may be in a form reasonably determined by the Blackstone Representative and may be, together with this
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156 (which shall be King & Spalding LLP and EKM Legal Consulting PLLC for any and all of the foregoing in connection with the Transactions and other matters, including primary syndication, to occur on or prior to or otherwise in connection with the Closing Date) and one local counsel for the Blackstone Representative as reasonably necessary in each relevant jurisdiction material to the interests of the Lenders taken as a whole (and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected Indemnitees)) and (II) in the case of the Agents, be limited to one primary counsel for the Agents (which shall be Xxxxxx & Bird LLP for any and all of the foregoing in connection with the Transactions and other matters, including primary syndication, to occur on or prior to or otherwise in connection with the Closing Date) and one local counsel for the Agents as reasonably necessary in each relevant jurisdiction material to the interests of the Agents taken as a whole (and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected Indemnitees)), (b) from and after the Closing Date, to pay or reimburse the Blackstone Representative, the Administrative Agent, the Collateral Agent, Custodian, the Document Custodian and each Lender for all reasonable and documented out-of- pocket costs and expenses incurred in connection with the enforcement or exercise (whether through negotiations, legal proceedings or otherwise) of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law), and including all respective Attorney Costs which shall (I) in the case of the Blackstone Representative and the Lenders, be limited to Attorney Costs of one counsel to the Blackstone Representative (and one local counsel to the Blackstone Representative as reasonably necessary in each relevant jurisdiction material to the interests of the Lenders taken as a whole (and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected Indemnitees)) and (II) in the case of the Agents, be limited to Attorney Costs of one counsel for the Agents (and one local counsel for the Agents as reasonably necessary in each relevant jurisdiction material to the interests of the Agents taken as a whole (and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that is material to each group of similarly situated affected Indemnitees)) and (c) from and after the Closing Date, to pay or reimburse the Lenders the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO. The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other reasonable and documented out-of- pocket expenses incurred by any Agent. If required by the NAIC, the Borrower shall obtain and maintain at its own cost and expense a Legal Entity Identifier (LEI). The agreements in this Section 11.04 shall survive the termination of the Aggregate Commitments, the repayment of all other Obligations and the resignation or removal of the Blackstone Representative, the Administrative Agent and each Agent. All amounts due under this Section 11.04 shall be paid within thirty (30) days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail including, if requested by the Borrower and to the extent reasonably available, backup documentation supporting such reimbursement request; provided that, with respect to the Closing Date, all amounts due under this Section 11.04 shall be paid on the Closing Date solely to the extent invoiced to the Borrower within three (3) Business Days of the Closing Date. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Blackstone Representative or the Administrative Agent in its sole discretion.
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158 in any way arising out of or in connection with (a) the execution, delivery, enforcement (including the enforcement of this indemnity), performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment or Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding), whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Agent Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Agent Indemnitee; provided that, notwithstanding the foregoing, such indemnity shall not, as to any Agent Indemnitee, be available to the extent that such Indemnified Liabilities resulted from the gross negligence, bad faith or willful misconduct of such Agent Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through Intralinks, Debtdomain, Roadshow Access (if applicable) or other similar information transmission systems in connection with this Agreement or any other Loan Document, except to the extent such damages have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its Affiliates or Controlling Persons or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction, nor, to the extent permissible under applicable Law, shall (A) any Indemnitee or (B) any Loan Party, Investor, Project Company or any of their respective Affiliates or Subsidiaries have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) (other than, in the case of the preceding clause (B), in respect of any such damages incurred or paid by an Indemnitee to a third party and for any out-of-pocket expenses in each case subject to the indemnification provisions of this Section 11.05); it being agreed that this sentence shall not limit the indemnification obligations of the Borrower or the Guarantors. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 11.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents are consummated. All amounts due under this Section 11.05 shall be paid within thirty (30) days after written demand therefor (together with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly refund the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 11.05. The agreements in this Section 11.05 shall survive the resignation or removal of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 11.05 shall not apply to Taxes, except any Taxes that represent liabilities, obligations, losses,
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160 Any assignment or participation of a Loan or Commitment by a Lender without the Borrower’s consent (A) to a Disqualified Lender or (B) to the extent the Borrower’s consent is required under this Section 11.07, to any other Person, shall be null and void, and, in the event of any assignment or participation of any Loan or Commitment by a Lender in breach of the foregoing, the Borrower shall be entitled to seek specific performance to unwind any such assignment or participation in addition to any other remedies available to the Borrower at law or in equity. In addition, the Borrower may (i) terminate any Commitment of such Person and prepay any applicable outstanding Loans at a price equal to the lesser of par and the amount such Person paid to acquire such Loans, without premium, penalty, prepayment fee or breakage, and/or (ii) require such person to assign its rights and obligations to one or more Eligible Assignees at the price indicated above (which assignment shall not be subject to any processing and recordation fee) and if such Person does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such assignment within five (5) Business Days of the date on which the assignee Lender executes and delivers such Assignment and Assumption to such Person, then such Person shall be deemed to have executed and delivered such Assignment and Assumption without any action on its part, (b) no such person shall receive any information or reporting provided by the Borrower, the Administrative Agent, the Collateral Agent or any Lender, (c) for purposes of voting, any Loans or Commitments held by such Person shall be deemed not to be outstanding, and such Person shall have no voting or consent rights with respect to “Required Lender” or class votes or consents, (d) for purposes of any matter requiring the vote or consent of each Lender affected by any amendment or waiver, such Person shall be deemed to have voted or consented to approve such amendment or waiver if a majority of the affected class (giving effect to clause (c) above) so approves and (e) such Person shall not be entitled to any expense reimbursement or indemnification rights and shall be treated in all other respects as a Defaulting Lender; it being understood and agreed that the foregoing provisions shall only apply to the Person specified in clauses (A) or (B) of the first sentence of this paragraph and not to any assignee of such Person that becomes a Lender so long as such assignee becomes an assignee in accordance with the provisions of this Section 11.07. Nothing in this Agreement shall be deemed to prejudice any right or remedy that the Borrower may otherwise have at law or equity. Each Lender acknowledges and agrees that the Borrower and its Subsidiaries will suffer irreparable harm if such Lender breaches any obligation under this Section 11.07. Additionally, each Lender agrees that the Borrower may seek to obtain specific performance or other equitable or injunctive relief to enforce this paragraph against such Lender with respect to such breach without posting a bond or presenting evidence of irreparable harm. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (a) be obligated to ascertain, monitor or inquire as to whether any Lender or participant or prospective Lender or participant is a Disqualified Lender or (b) have any liability with respect to any assignment or participation of loans, or disclosure of confidential information, to any Disqualified Lender. Notwithstanding anything to the contrary, nothing in the foregoing shall prejudice any right or remedy that the Borrower may have at law or in equity against any Lender who enters into an assignment, participation or other transaction (including the disclosure of confidential information) with a Disqualified Xxxxxx in contravention of the terms of this Agreement.
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161 (b) (i) Subject to Section 11.07(a) and the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) of: (A) the Borrower; provided that the Borrower shall be deemed to have consented to any such assignment of any Term Loans unless it shall have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof to a Responsible Officer of the Borrower; provided, further, that no consent of the Borrower shall be required for (i) an assignment of all or any portion of the Term Loans to a Lender, an Affiliate of a Lender, an Approved Fund or a Blackstone Asset Based Finance Entity, (ii) if an Event of Default has occurred and is continuing or (iii) an assignment of all or a portion of the Loans pursuant to Section 11.07(l) or Section 11.07(m); and (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Xxxxxx’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 and shall be in increments of $1,000,000 in excess thereof (provided that simultaneous assignments to or from two or more Approved Funds shall be aggregated for purposes of determining compliance with this Section 11.07(b)(ii)(A)), unless each of the Borrower and the Administrative Agent otherwise consents; provided that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any; (B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (or if previously agreed with the Administrative Agent, manually), together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided that only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds; (C) other than in the case of assignments pursuant to Section 11.07(m), the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (in which the Assignee shall designate one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Loan Parties and their Affiliates or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws,
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162 including federal and state securities laws) and all applicable tax forms required pursuant to Section 3.01(e); and (D) (i) no Loan may be transferred or assigned other than in a transfer or assignment of an equal proportion of each Class of Loans held by the transferring or assigning Lender (before giving effect to such transfer or assignment) and (ii) no Commitments may be transferred or assigned other than in a transfer or assignment of an equal proportion of each Class of Commitments held by the transferring or assigning Lender (before giving effect to such transfer or assignment). In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable Pro Rata Share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Sections 11.07(d) and (e), from and after the effective date specified in each Assignment and Assumption, (1) other than in connection with an assignment pursuant to Section 11.07(m), the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and (2) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.02, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.07(f). (d) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption, each Affiliated Lender Assignment and Assumption delivered to it, and each notice of cancellation
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163 of any Loans delivered by the Borrower to the Administrative Agent pursuant to Section 11.07(m) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Agent and, with respect to such Xxxxxx’s own interest only, any Lender, at any reasonable time and from time to time upon reasonable prior notice. This Section 11.07(d) and Section 2.09 shall be construed so that all Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury Regulations (or any other relevant or successor provisions of the Code or of such Treasury Regulations). Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Term Loans held by Affiliated Lenders. Upon request by the Administrative Agent, the Borrower shall (i) promptly (and in any case, not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.01) provide to the Administrative Agent, a complete list of all Affiliated Lenders holding Term Loans at such time and (ii) not less than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 11.01, provide to the Administrative Agent, a complete list of all Debt Fund Affiliates holding Term Loans at such time. (e) Upon its receipt of, and consent to, a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, an Administrative Questionnaire completed in respect of the assignee (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) above, if applicable, and the written consent of the Administrative Agent, if required, and, if required, the Borrower to such assignment and any applicable tax forms required pursuant to Section 3.01(e), the Administrative Agent shall promptly (i) accept such Assignment and Assumption and (ii) record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (e). (f) Any Lender may at any time sell participations to any Person, subject to the proviso in the first paragraph of Section 11.07(a) (each, a “Participant”), in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, (iv) no Loan may be participated other than in a participation of an equal proportion of each Class of Loans held by the selling Lender (before giving effect to such participation) and (v) no Commitments may be participated other than in a participation of an equal proportion of each Class of Commitments held by the selling Lender (before giving effect to such participation). Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other
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164 Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the second proviso to Section 11.01 that requires the affirmative vote of such Lender, in each case, to the extent the Participant is directly and adversely affected thereby. Subject to Section 11.07(g), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 and 3.02 (subject to the requirements and limitations of such Sections, including the requirements under Section 3.01(e)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.07(c). To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 11.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.11 as though it were a Lender and Section 3.04 as though it were an Assignee. Each Participant will provide any applicable tax forms required pursuant to Section 3.01(e) solely to the participating Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and related interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that (x) such disclosure is necessary in connection with an audit or other proceeding to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or (y) upon request of the Borrower, to confirm no Participant of Term Loans is a Disqualified Lender. The entries in the Participant Register shall be conclusive and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. (g) A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.02 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. (h) Any Lender may, without the consent of the Borrower, the Blackstone Representative or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Xxxxxx as a party hereto. (i) [Reserved]. (j) Notwithstanding anything to the contrary contained herein, without the consent of the Borrower, the Blackstone Representative or the Administrative Agent, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing
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165 to it and the Note, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 11.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise. (k) [Reserved]. (l) Any Lender may at any time, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to a Person who is or will become, after such assignment, an Affiliated Lender through open market purchases, solely on a pro rata basis, and in each case subject to the following limitations: (i) the assigning Lender and the Affiliated Lender purchasing such Lender’s Term Loans shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit I-1 hereto (an “Affiliated Lender Assignment and Assumption”); (ii) Affiliated Lenders will not receive information provided solely to Lenders by the Blackstone Representative, the Administrative Agent or any Lender and will not be permitted to attend or participate in conference calls or meetings attended solely by the Lenders, the Blackstone Representative and the Administrative Agent, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to Lenders pursuant to Article II, and shall not be permitted to challenge the Blackstone Representative’s, the Administrative Agent’s or any Xxxxxx’s attorney-client privilege; (iii) the aggregate principal amount of Term Loans held at any one time by Affiliated Lenders shall not exceed thirty percent (30.0%) of the principal amount of all Term Loans at such time outstanding (measured at the time of purchase) (such percentage, the “Affiliated Lender Cap”); provided that to the extent any assignment to an Affiliated Lender would result in the aggregate principal amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio; and (iv) as a condition to each assignment pursuant to this clause (l), the Administrative Agent shall have been provided an Affiliated Lender Notice in the form of Exhibit I-2 to this Agreement in connection with each assignment to an Affiliated Lender or a Person that upon effectiveness of such assignment would constitute an Affiliated Lender pursuant to which such Affiliated Lender shall waive any right to bring any action in connection with such Term Loans against the Administrative Agent, in its capacity as such.
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166 Each Affiliated Xxxxxx agrees to notify the Administrative Agent promptly (and in any event within ten (10) Business Days) if it acquires any Person who is also a Lender, and each Lender agrees to notify the Administrative Agent promptly (and in any event within ten (10) Business Days) if it becomes an Affiliated Lender. Such notice shall contain the type of information required and be delivered to the same addressee as set forth in Exhibit I-2. (m) Any Lender (for such purposes, the “Relevant Lender”) may, so long as no Default or Event of Default has occurred and is continuing, at any time, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to the Borrower or any of its Subsidiaries through (notwithstanding Sections 2.10 and 2.11 or any other provision in this Agreement) open market purchase on a pro rata or non-pro rata basis; provided that: (i) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to the Borrower or a Subsidiary shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer; (ii) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans then held by the Borrower or a Subsidiary; (iii) the Borrower shall have first offered to all Lenders on a ratable basis the right to sell Term Loans to the Borrower or such Subsidiaries on the same terms offered to such Relevant Lender; (iv) the Borrower or such Subsidiary funds the purchase of such Term Loans solely through amounts on deposit in the Equity Account; and (v) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register. (n) Notwithstanding anything in Section 11.01 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom unless the action in question affects any Affiliated Lender (in its capacity as a Lender) in a disproportionately adverse manner than its effect on the other Lenders, or subject to Section 11.07(o), any plan of reorganization pursuant to the Bankruptcy Code, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Blackstone Representative, the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, no Affiliated Lender shall have any right to consent (or not consent), otherwise act or direct or require the Blackstone Representative, the Administrative Agent or any Lender to take (or refrain from taking) any such action and:
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[Credit Agreement Signature Page] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. APA FINANCE III BORROWER, LLC, as Borrower By: APA Finance III Borrower Holdings, LLC Its: Sole Member By: APA Finance III, LLC Its: Sole Member By: APA Generation, LLC Its: Sole Member By: Altus Power, LLC Its: Sole Member By: Altus Power, Inc. Its: Sole Member By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Co-Chief Executive Officer
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[Credit Agreement Signature Page] APA FINANCE III BORROWER HOLDINGS, LLC, as Equity Holder By: APA Finance III, LLC Its: Sole Member By: APA Generation, LLC Its: Sole Member By: Altus Power, LLC Its: Sole Member By: Altus Power, Inc. Its: Sole Member By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Co-Chief Executive Officer
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[Credit Agreement Signature Page] BLACKSTONE ASSET BASED FINANCE ADVISORS LP, as Blackstone Representative By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory Address for notices: 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Email: xxx-xx@xxxxxxxxxx.xxx
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[Credit Agreement Signature Page] Lenders: EMPLOYERS REASSURANCE CORPORATION, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory XXXXXXX LIFE & ANNUITY COMPANY OF NEW YORK, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory
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[Credit Agreement Signature Page] FIDELITY AND GUARANTY LIFE INSURANCE COMPANY, as a Lender By: Blackstone ISG-I Advisors L.L.C., pursuant to powers of attorney now and hereafter granted to it By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory SHELTER MUTUAL INSURANCE COMPANY, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory EVEREST REINSURANCE COMPANY, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory
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[Credit Agreement Signature Page] THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory EVERLAKE LIFE INSURANCE COMPANY, as a Lender By: Blackstone ISG-I Advisors L.L.C., pursuant to powers of attorney now and hereafter granted to it By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory
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[Credit Agreement Signature Page] USAA LIFE INSURANCE COMPANY, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory AMERICAN GENERAL LIFE INSURANCE COMPANY, as a Lender By: Blackstone ISG-I Advisors L.L.C., pursuant to powers of attorney now and hereafter granted to it By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory By: Blackstone Liquid Credit Advisors I LLC, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Authorized Signatory
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[Credit Agreement Signature Page] SECURITY LIFE OF DENVER INSURANCE COMPANY, as a Lender By: Blackstone Asset Based Finance Advisors LP, pursuant to powers of attorney now and hereafter granted to it By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Authorized Signatory Address for notices: 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Email: xxx-xx@xxxxxxxxxx.xxx
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Administrative Agent By: /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx Title: Vice President U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent By: /s/ Xxxxxxxx Xxxxxxx Name: Xxxxxxxx Xxxxxxx Title: Assistant Vice President U.S. BANK NATIONAL ASSOCIATION, as Document Custodian By: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Vice President
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