REQUIRED GROUP AGENT ACTION NO. 5

Exhibit 10.19e

CONFIDENTIAL TREATMENT REQUESTED

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

This REQUIRED GROUP AGENT ACTION NO. 5 (this “Action”), dated as of August 27, 2015 (the “Effective Date”), is entered into by and among Megalodon Solar, LLC, a Delaware limited liability company (“Borrower”), Bank of America, N.A., as the Administrative Agent (“Administrative Agent”), the Collateral Agent for the Secured Parties (“Collateral Agent”) and the Depositary for the Secured Parties (the “Depositary”) and each of Bank of America, N.A. (“BA Agent”), Credit Suisse AG, New York Branch (“CS Agent”), Deutsche Bank AG, New York Branch (“DB Agent”), ING Capital LLC (“ING Agent”) and KeyBank National Association (“KB Agent”, and collectively with BA Agent, CS Agent and ING Agent, the “Group Agents”), as Group Agents party to the Loan Agreement, dated as of May 4, 2015 (as amended, the “Loan Agreement”), by and among the Borrower, Administrative Agent, Collateral Agent, the Group Agents, the Lenders and the other parties from time to time party thereto. As used in this Action, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

A.The Borrower has requested the Required Group Agents to provide their consent to the addition and inclusion to the Loan Agreement and the other Financing Documents of (the “Subject Fund Transactions”): [***] (“[***]”), as a Subject Fund, and [***] (“[***]”), as a Borrower Subsidiary Party (collectively, [***] and [***], the “New Entities”);

B.The Required Group Agents are willing to provide their consent to the Subject Fund Transactions on the terms and subject to the conditions set forth in this Action; and

C.The Borrower, the Required Group Agents, the Administrative Agent, the Collateral Agent and the Depositary, as applicable, desire to amend the Loan Agreement as set forth herein.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

Section 1.Amendments. Subject to the prior satisfaction of the conditions precedent described in Section 3 hereof, the Loan Agreement will be amended as follows (clauses (a) – (d) below, collectively, the “Loan Agreement Amendments”):

(a)Appendix 1 of the Loan Agreement shall be amended and restated as set forth in Exhibit 1 attached hereto;

(b)Appendix 4 of the Loan Agreement shall be amended and restated as set forth in Exhibit 2 attached hereto;

Required Group Agent Action No. 5

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

(c)Appendix 5 of the Loan Agreement shall be amended and restated as set forth in Exhibit 3 attached hereto; and

(d)the proviso in Section 11.11(b) of the Loan Agreement shall be amended and restated as follows:

“provided, however, no Tax Loss Policy shall be required for any Subject Fund (i) with an Inverted Lease Structure in respect of which (A) such payments to be made by the Lessee to the Lessor as rent on any date under the lease may not be reduced as a result of any Tax Loss and (B) the amount of distributions on any date from the Lessor to the Borrower may not be reduced as a result of any Tax Loss or non-payment of a Tax Loss Indemnity, (ii) in respect of which the Investor has expressly subordinated all payments in respect of any Tax Loss Indemnity to the payment of Obligations under the Financing Documents, (iii) with a Partnership Flip Structure in respect of which (A) the Managing Member has a purchase option with (x) a Purchase Option date that is fixed and not based upon the achievement of a target internal rate of return or otherwise impacted in any way by any Tax Loss or non-payment of a Tax Loss Indemnity and (y) a Purchase Option Price (as defined in the CADA) that is not impacted in any way by any Tax Loss or non-payment of a Tax Loss Indemnity and (B) the amount of distributions on any date from the Partnership to the Partnership Managing Member may not be reduced as a result of any Tax Loss or non-payment of a Tax Loss Indemnity or (iv) that benefits from other credit support covering substantially the same risks as a Tax Loss Policy and otherwise reasonably acceptable to the Administrative Agent.”

Section 2.Consents to the Loan Agreement. Subject to the prior satisfaction of the conditions precedent described in Section 3 hereof:

(a)the Required Group Agents consent to the Loan Agreement Amendments, with acknowledgement by each of the Administrative Agent and the Collateral Agent (solely with respect to its obligations under Article 9 of the Loan Agreement); and

(b)the Administrative Agent and the Required Group Agents consent to the Subject Fund Transactions pursuant to and in accordance with Section 2.10(a) of the Loan Agreement.

Section 3.Conditions Precedent. This Action shall be effective upon the satisfaction of the following conditions precedent:

(a)Each party to this Action shall have received counterparts of this Action, executed and delivered by each of the other parties hereto.

(b)The Administrative Agent shall have received a certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with respect to [***] and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Agreement is true and correct in all material respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).

2Required Group Agent Action No. 5

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

(c)The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from [***] in connection with the Subject Fund Transactions.

(d)Each the Administrative Agent and each Group Agent shall have received an opinion, dated no earlier than the Effective Date, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.

(e)Each the Administrative Agent and each Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.

(f)The Administrative Agent and the Collateral Agent shall have received (i) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each of the New Entities and the Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral in respect of the New Entities (the “New Collateral”), (ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), (c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.

(g)The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Effective Date, (ii) a Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Effective Date, (iii) a Joinder Agreement in the form attached as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***] and the Collateral Agent, dated as of the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the Administrative Agent with respect to the New Entities.

(h) (i) The UCC financing statements relating to the New Collateral shall have been duly filed in each office and in each jurisdiction where required in order to create and perfect the first priority Lien and security interest set forth in the Collateral Documents (as supplemented and as such term is defined in the Loan Agreement, as amended) and (ii) the Borrower shall have properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and the pledged interests in [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies.

(i)Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been satisfied with respect to the Subject Fund Transactions.

3Required Group Agent Action No. 5

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

(j)The Administrative Agent shall have received for its own account all costs and expenses described in Section 6 of this Action, for which invoices have been presented in connection herewith.

Section 4.Reference to and Effect on Financing Documents. Each of the Loan Agreement and the other Financing Documents is and shall remain unchanged and in full force and effect, and, except as expressly set forth herein, nothing contained in this Action shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or any of the other Secured Parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in each of the Loan Agreement and any other Financing Document. This Action shall also constitute a “Financing Document” for all purposes of the Loan Agreement and the other Financing Documents.

Section 5.Incorporation by Reference. Sections 10.5 (Entire Agreement), 10.6 (Governing Law), 10.7 (Severability), 10.8 (Headings), 10.11 (Waiver of Jury Trial), 10.12 (Consent to Jurisdiction), 10.14 (Successors and Assigns) and 10.16 (Binding Effect; Counterparts) of the Loan Agreement are hereby incorporated by reference herein, mutatis mutandis.

Section 6.Expenses. The Borrower agrees to reimburse the Administrative Agent in accordance with Section 10.4(b) of the Loan Agreement for its reasonable and documented out-of-pocket expenses in connection with this Action, including reasonable and documented fees and out-of-pocket expenses of legal counsel.

Section 7.Construction. The rules of interpretation specified in Section 1.2 of the Loan Agreement also apply to this Action, mutatis mutandis.

[Signature Pages Follow]

4Required Group Agent Action No. 5

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

IN WITNESS WHEREOF, the parties hereto have caused this Action to be duly executed by their respective authorized officers as of the day and year first written above.


MEGALODON SOLAR, LLC,
as Borrower

By:	/s/ Xxxx X. Xxxx
Name:	Xxxx X. Xxxx
Title:	Treasurer

[ Signature Page to Required Group Agent Action No. 5 ]

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


BANK OF AMERICA, N.A.,
as a Group Agent

By:	/s/ Xxxxxx Xxxx-Xxxxxx
Name:	Xxxxxx Xxxx-Xxxxxx
Title:	Director

CREDIT SUISSE AG, NEW YORK BRANCH,
as a Group Agent

By:	/s/ Xxxxxx Xxxxxxxx
Name:	Xxxxxx Xxxxxxxx
Title:	Director

By:	/s/ Xxxx XxXxxxxxxx
Name:	Xxxx XxXxxxxxxx
Title:	Vice President

DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Group Agent

By:	/s/ Xxxxxx Xxxxxx
Name:	Xxxxxx Xxxxxx
Title:	Vice President

By:	/s/ Gareth John
Name:	Gareth John
Title:	Director

ING CAPITAL, LLC,
as a Group Agent

By:	/s/ Xxxxxx Xxxxxxxx
Name:	Xxxxxx Xxxxxxxx
Title:	Director

By:	/s/ Xxxxxx Xxxxxxxxxx
Name:	Xxxxxx Xxxxxxxxxx
Title:	Director

[ Signature Page to Required Group Agent Action No. 5 ]

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


KEYBANK NATIONAL ASSOCIATION,
as a Group Agent

By:	/s/ Xxxxxxxx X. Xxxxxx
Name:	Xxxxxxxx X. Xxxxxx
Title:	Vice President, Portfolio Manager

Acknowledged by:
BANK OF AMERICA, N.A.
as Administrative Agent and Collateral Agent

By:	/s/ Xxxxxxx X. XxXxxxxx
Name:	Xxxxxxx X. XxXxxxxx
Title:	Vice President

[ Signature Page to Required Group Agent Action No. 5 ]

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

EXHIBIT 1

APPENDIX 1

ADVANCE RATE

The “Advance Rate” means

(i) For a Subject Fund the following percentages:


Subject Fund	Advance Rate	Cash Sweep Fund or Non-Cash Sweep Fund
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]

(ii)In respect of any Potential New Fund that becomes a Subject Fund, a percentage as shall be determined in accordance with this Appendix 1 following the completion of due diligence by the Administrative Agent, which by way of example shall be:


Advance Rate
For each Cash Sweep Fund, Non-Cash Sweep Fund and Other Structure, the Advance Rate will be the percentage determined for each System in such Subject Fund based on the “Type of Fund,” in accordance with the table below.
Type of Fund
Cash Sweep Fund (baseline: CB (see below))	CB
Non Cash Sweep Fund ([***]% baseline)	[***]%

Exhibit 1

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Other Non-Financed Structure

([***]% baseline)

[***]%

Other Financed Structure

[***]%

“CB” or “Cash Sweep Fund Baseline” means, the lesser of (a) [***]% and (b) the percentage obtained by dividing (i) the maximum amount of debt that can be fully supported by Net Cash Flows distributable to the Managing Member(s) of such Subject Fund assuming interest is accruing at the Default Rate when applying the ITC Downside Case to that particular Subject Fund and only that Subject Fund by (ii) the Discounted Solar Asset Balance of such Subject Fund.

“ITC Downside Case” means a scenario in which a 30% reduction in fair market value occurs in the first month that a Subject Fund is included in the Available Borrowing Base and the Aggregate Advance Model is adjusted to calculate the Net Cash Flows distributable to the Managing Member(s) of such Subject Fund in light of such reduction in fair market value and any applicable Cash Sweep Event (as defined in Appendix 7).

For avoidance of doubt, the amounts set forth in this clause (ii) are indicative subject to final determination by the Administrative Agent at the time such Subject Fund is included in the Available Borrowing Base;

(iii)[Reserved].

(iv)All PV Systems in any Watched Fund shall have an Advance Rate of 0% for purposes of calculating the Available Borrowing Base. For avoidance of doubt, this shall include any PV Systems in a Watched Fund that were financed in previous tranches and whose Net Cash Flows were incorporated in previous Available Borrowing Base calculations.

(v)To the extent that, despite negotiating in good faith, the Administrative Agent and the Borrower cannot agree on the Advance Rate under clause (ii) of this Appendix 1, the Advance Rate determined by the Administrative Agent, acting at the direction of the Majority Group Agents, shall prevail.

Exhibit 1

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

EXHIBIT 2

APPENDIX 4

TAX EQUITY STRUCTURES, PARTNERSHIPS, LESSOR PARTNERSHIPS, LESSORS, SUBJECT FUNDS, MANAGING MEMBERS, FUNDED SUBSIDIARIES, LESSEES, CASH SWEEP DESIGNATIONS AND INVESTORS


Tax Equity Structure	Partnership / Lessor Partnership (Subject Fund)	Partnership Managing Member / Lessor Partnership Managing Member	Funded Subsidiaries (Subject Fund and Managing Member, if any)	Lessee	Cash-Sweep Fund or Non-Cash Sweep Fund	Investor(s)
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]

Exhibit 2

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

EXHIBIT 3

APPENDIX 5

PROJECT DOCUMENTS

[***]Subject Fund

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

Amendment No. 1 to Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

Amendment No. 2 to Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

Second Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by [***].

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

Amendment No. 1 to Master Development, EPC & Purchase Agreement, dated as of [***], by and between [***].

[***] Subject Fund

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [***].

Amendment No. 1 to Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [***].

Amendment No. 2 to Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [***].

Second Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by [***].

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

Exhibit 3

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Amendment No. 1 to Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Amendment No. 2 to Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Guaranty, dated as of [***], from SolarCity in favor of [***] and [***].

Guaranty, dated as of [***], from [On File with Administrative Agent] in favor of [***].

Asset Management Agreement, dated as of [***], by and between SolarCity and [***].

Affirmation Agreement, dated as of [***], by [On File with Administrative Agent] to [***].

[***] Subject Fund

Master Lease, dated as of [***], by and between [***] and [***].

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State).

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

Operating Agreement of [***], dated as of [***], by and among [On File with Administrative Agent], [***] and [***].

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***], by [***].

Pass-Through Agreement, dated as of [***], by and between [***] and [***].

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent], OPF [***] and [***].

[***] Subject Fund

Master Lease, dated as of [***], by and between [***] and [***].

Exhibit 3

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State) by and among SolarCity, [***] and [***].

First Amendment to Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

Operating Agreement of [***], dated as of [***], by and between [On File with Administrative Agent] and [***].

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***], by [***].

Pass-Through Agreement, dated as of [***], by and between [***] and [***].

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent] and [***].

[***] Subject Fund

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [***].

Second Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by [***].

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

Guaranty, dated as of [***], by SolarCity in favor of [***].

Guaranty, dated as of [***], by [On File with Administrative Agent], in favor of [***].

Transition Manager Agreement, dated as of [***], by and among [***], SolarCity and [***].

Exhibit 3

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Amendment No. 1 to the Transition Management Agreement, dated as of [***], by and among [***], SolarCity and [***].

[***] Subject Fund

Limited Liability Company Agreement of [***], dated as of [***], by and among [***], [On File with Administrative Agent] and [On File with Administrative Agent].

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by [***].

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

Guaranty, dated as of [***], by SolarCity in favor of [On File with Administrative Agent] and [On File with Administrative Agent].

Transition Manager Agreement, dated as of [***], by and among [***], SolarCity and [***].

[***] Subject Fund

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by [***].

Contribution Agreement (Systems), dated as of [***], by and among [***], [***], [***] and [***].

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

[***] Subject Fund

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent]

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by [***].

Exhibit 3

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent].

Exhibit 3

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

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REQUIRED GROUP AGENT ACTION NO. 5

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