ASSUMPTION, RATIFICATION AND MODIFICATION AGREEMENT
ASSUMPTION, RATIFICATION AND MODIFICATION AGREEMENT
This ASSUMPTION, RATIFICATION AND MODIFICATION AGREEMENT (this "Agreement") is dated as of December 22, 2023 by and among ENERGEA PORTFOLIO 2LLC, a Delaware limited liability company ("New Borrower"), ENERGEA GLOBAL LLC ("Prior Borrower"), ENERGEA GERAÇÃO DISTRIBUÍDA DE ENERGIA DO BRASIL S.A.,
a limited liability company headquartered in Rio de Janeiro ("Energea Brasil"), and LATTICE ENERGEA GLOBAL REVOLVER I LLC, a Delaware limited liability company ("Lender").
R E C I T A L S
WHEREAS, Lender, New
Borrower, Energea Brasil and Prior Borrower have previously entered into certain loan agreements, guaranty
agreements, instruments and documents, including certain of those set forth on Schedule
A attached hereto (together with all other agreements, instruments and
documents executed and delivered by Prior Borrower to Lender, each as amended,
modified, extended, restated, replaced or supplemented from time to time,
collectively referred to herein as the "Loan Documents"), pursuant to which,
inter alia, Xxxxxx provided certain revolving and term loan credit
facilities to Prior Borrower and/or its affiliates;
WHEREAS, Prior Borrower and
New Borrower have requested that Lender permit Prior Borrower to assign to New
Borrower, and New Borrower to assume from Prior Borrower (the "Assignment
and Assumption") all of Prior Borrower's obligations and rights under the
Loan Documents (collectively, the "Obligations");
WHEREAS, on the terms and
conditions set forth in this Agreement, Xxxxxx has agreed to permit the
Assignment and Assumption of the Obligations from Prior Borrower to New
Borrower; and
WHEREAS, the New Borrower
and Lender wish to modify certain provisions of the Loan Documents (including by Xxxxxx making a new loan to Prior
Borrower), as set forth herein.
NOW THEREFORE, in
consideration of the mutual covenants and conditions contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Lender, New Borrower, Energea Brasil and Prior Borrower hereby
agree as follows:
Section 1. Assumption of Obligations. As of the Effective Date, New Borrower
hereby assumes all of Prior Xxxxxxxx's rights under the Loan Documents and the
Obligations, and New Borrower further agrees to pay when due all Obligations of
Prior Borrower and to abide by and be bound by
all of the terms and conditions of the Loan Documents as "Borrower" thereunder, as though the Loan Documents to which Prior Borrower is a party
had been made, executed and delivered by New Borrower as "Borrower" thereunder.
Section 2. Lender Consent
to Assignment and Assumption. As
of the Effective Date, Lender hereby consents to the Assignment and Assumption,
and waives any and all restrictions and prohibitions with respect thereto. Xxxxxx's consent to the Assignment and
Assumption provided for in this Agreement is not intended to be, and shall not
be construed as, a waiver of any provisions
of the Loan Documents other than with respect to the restriction or prohibition
of the Assignment and Assumption.
Section 3. Cross Default. New Borrower hereby acknowledges and
agrees that the failure of New
Borrower to (a) make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect
of any indebtedness owed to Lender or guarantee given in favor of
Lender, or (b) observe or perform any other agreement or condition relating to
any such indebtedness or guarantee, or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such indebtedness or the
beneficiary or beneficiaries of such guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such indebtedness to be demanded or to become due
or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), in each case, whether or
not related to the Obligations or the Loan Documents, such failure shall
automatically result in an event of default under all loan documents evidencing
the obligations of New Borrower to Lender.
Section 4. Representations
and Warranties; Ratification and Confirmation. New Borrower
represents and warrants to Lender that as of the Effective Date: (a) there are no defenses, offsets, or
counterclaims to the Loan Documents; and (b)
all provisions of the Loan Documents are in full force and effect and no
default or event of default has occurred which is continuing under the
provisions of any Loan Document. New
Borrower hereby acknowledges that it has reviewed the terms and provisions of
this Agreement and the Loan Documents and hereby consents to and ratifies all
provisions contained therein. New
Borrower understands and intends that Lender will rely on these representations
and warranties contained herein. New
Borrower hereby authorizes Lender to file or record, as applicable, all UCC-1
or UCC-3 financing statements (and all foreign equivalents thereof) as deemed
reasonably necessary to perfect Xxxxxx's security interests under the Loan
Documents and that name the New Borrower as debtor, and Xxxxxx as secured party
thereunder (the "Financing Statements").
Section 5. Conditions Precedent. This Agreement shall take effect as of the date (the "Effective Date") when the
following are received by Xxxxxx, or otherwise satisfied in Lender's reasonable
discretion:
(i)
this Agreement
duly executed and delivered by each of the parties
hereto;
(ii)
Allonges
to the promissory notes to which Original Borrower
is a party and owing to Xxxxxx, duly executed and
delivered by New Borrower evidencing New Borrower's assumption of Prior
Xxxxxxxx's obligations to Lender under the Notes, in form and substance
satisfactory to Lender (collectively, the "Allonges");
(iii)
a 2023 Term Loan Note, duly executed and delivered by Xxxxx Xxxxxxxx;
(iv)
a First Amendment to Warrant to Purchase
Class B Membership Interests, in form
and content satisfactory to Lender, duly executed and delivered by Prior
Borrower;
(v)
a
Pledge Agreement with respect to New Borrower's pledge of equity in Energea
Iguatama Aluguel de Equipamentos e Manutenção Ltda.,
Energea Pedra do Indaiá Ltda.,
Energea Araxá I Ltda., Energea Divinópolis Ltda., Energea Divinópolis II
Ltda., and Energea Micros I Ltda., duly executed and delivered by New Borrower;
(vi)
a
Financing Statement naming New Borrower as Debtor and Xxxxxx as Secured Party,
to be filed with the Secretary of State of the State of Delaware;
(vii)
a
Deposit Account Control Agreement with respect to each of the DS Account and
the VH Account (each as defined in the Credit Agreement as amended hereby),
duly executed by New Borrower and the
depository bank named therein;
(viii)
a
Letter Agreement with each of BGTF I Transição Energética Fundo de Investimento
em Participações Multiestratégia and VH GSEO UK Holdings Limited regarding
distributions of proceeds by Energea BR S.A. and Victory Hill Distributed
Energy Investments Limited;
(ix)
Confirmation
of the payoff of the $200,000 loan made by Xxxxxx
to Prior Borrower, it being acknowledged and agreed
that such loan was referenced as "ENG-01" on the Revolving Loan Note but such
loan was converted to a Term Loan under the Term Loan Note in 2022;
(x)
a
certificate signed by the Manager of New Borrower certifying to (a) the Certificate of Formation and the limited
liability company agreement
of New Borrower,
(b) resolutions
adopted by the Members of New Borrower authorizing the Assignment and
Assumption and the execution and delivery of this Agreement, the Allonges and
all other documents to which New Borrower
is a party and referenced above, and the performance by New
Borrower of its obligations hereunder and thereunder, and the general
resolutions, in form and substance satisfactory to Lender and its counsel,
authorizing the borrowings under the Loan Documents, and the performance of the
other matters specified herein and therein, and (c) the incumbency of the Members and Manager of New Borrower;
(xi)
a
certificate signed by the Manager of Prior Borrower certifying to (a) the
resolutions adopted by the Members of Prior Borrower authorizing the Assignment
and Assumption and the execution and delivery of this Agreement, and the
performance by Prior Borrower of its obligations hereunder, including the
borrower by Prior Xxxxxxxx of the 2023 Term Loan, and (b) the incumbency of the Members and Manager of Prior
Borrower; and
(xii)
payment
of Xxxxxx's fees and expenses, including without limitation, those fees and
expenses described in Section 11 below.
Section 6. Amendments
to Credit Agreement. The parties hereto agree that, on the Effective Date,
and immediately following the Assignment and Assumption, the Credit Agreement is hereby amended
to delete the stricken text (indicated textually in the same manner
as the following example: stricken text)
and to add the double-underlined text (indicated textually in the same manner
as the following example: double-
underlined text) as set forth in on Exhibit
A attached hereto. After giving
effect to the amendments set forth in this Section on the Effective Date, the representations, warranties, certifications and, agreements contained
in the Credit Agreement and
the other Loan Documents are true, complete and accurate in all material
respects as of the date hereof; provided, however, that those representations
and warranties expressly referring to another date shall be true, correct and
complete in all material respects as of
such date.
Section 7. Condition
Subsequent. Within one-hundred
twenty (120) days of the Effective Date, New Borrower shall cause the
perfection of the Lender's security interests
in the projects known as "Divinipolis III" and "Micros" in accordance with the
terms of the Credit Agreement and in a manner satisfactory to the Lender. New Borrower agrees and acknowledges that its breach of this
Section shall constitute an Event of Default under the Credit Agreement.
Section 8. Limitations
on Waivers; Future Waivers. Any
and all waivers contained in this Agreement are limited to the specific event referenced by such waiver
only and shall
not, nor shall they be
construed as, a waiver of any other default or event of default under the Loan
Documents, now existing or hereafter occurring, nor shall anything herein or
Xxxxxx's actions hereunder be construed so as to imply that Xxxxxx has agreed, or is obligated, to grant any future waivers under the Loan Documents.
Section 9. No Modification. Except as otherwise set forth herein, this
Agreement shall not modify the terms or provisions of Loan Documents, or
otherwise constitute a substitution or novation of any of the Loan Documents,
and all such documents and instruments shall remain unmodified and in full
force and effect in accordance with their terms, and are hereby ratified by New Borrower.
Section 10. No Impairment of Lien. Nothing set forth herein shall affect the
priority or extent of the lien of the Loan Documents, nor, except as expressly
set forth herein, release or change the liability of any party who may now be
or after the date of this Agreement, become liable primarily or secondarily,
thereunder.
Section 11. Costs. Prior Borrower and New Borrower,
jointly and severally, agree to pay all fees and reasonable costs,
including the reasonable attorney's fees, incurred by Xxxxxx as a result of, or
otherwise in connection with, this Agreement and the transactions contemplated hereby.
Section 12. Financial Information. Prior Borrower and New Borrower each
represent and warrant to Lender that,
all financial information provided to Lender in connection with Prior
Xxxxxxxx's and New Borrower's requests for the consent and waiver set forth
herein were true and correct as of the date provided and remain materially true
and correct as of the date of this Agreement.
Section 13. Further Assurances. Prior Borrower and New Borrower each
hereby agrees to execute and deliver such other
instruments, and to provide such further information and take
such other action,
as Xxxxxx may reasonably request
in connection with the assignment and assumption contemplated hereunder.
Section 14. Miscellaneous. (a) This
Agreement shall be construed according to and governed by the laws of the State of New York without regard
to its internal conflicts rules; (b) if
any provision of this Agreement is adjudicated to be invalid,
illegal or unenforceable, in whole or in part, it will be deemed omitted to
that extent and all other provisions of this Agreement will remain in full
force and effect; (c) the captions
contained in the Agreement are for convenience
of reference only and in no event define, describe or limit the scope of
intent or any of the provisions or terms hereof; (d) this Agreement shall be binding upon and inure to the benefit
of the parties and their respective heirs, legal representatives, successors
and assigns; and (e) this Agreement may be executed in one or more
counterparts.
[SIGNATURE PAGES FOLLOW]
-8-
EXHIBIT A
Amended Credit Agreement
[attached]
CREDIT AGREEMENT
dated as of October 5th, 2020
among
ENERGEA GLOBALPORTFOLIO 2 LLC,
as "Borrower"
ENERGEA PORTFOLIO 2 LLC AND ENERGEA
GERAÇÃO DISTRIBUÍDA DE ENERGIA
DO BRASIL S.A.,
as an "Additional ObligorsObligor"
and
LATTICE ENERGEA GLOBAL REVOLVER I LLC,
as "Lender "
Table of Contents
Article I DEFINITIONS AND ACCOUNTING TERMS 1
Section 1.1 Defined Terms_________________________________________________ 1
Section 1.2 Terms Generally______________________________________________ 15
Section
1.3 Computation of Time Periods. __ 1516
Section 1.4 Conflicting Terms_____________________________________________ 16
Article II AMOUNT
AND TERMS OF THE CREDIT
FACILITIES_____________________
16
Section 2.1 The Credit
Facilities___________________________________________ 16
Section 2.2 Payments Free of Taxes and Other
Deductions______________________ 22
Section 2.3 Fees. __ 2324
Article III CONDITIONS PRECEDENT_________________________________________ 24
Section 3.1 Conditions Precedent to Effectiveness_____________________________ 24
Section 3.2 Conditions
Precedent to Revolving Loans__________________________ 26
Section
3.3 Conditions Precedent
to the Term Loans. __ 2829
Section 3.4 Limited Waiver of Conditions
Precedent___________________________ 30
Article IV REPRESENTATIONS AND WARRANTIES 3031
Section
4.1 Formation, Good Standing,
and Due Qualification. ____ 3031
Section 4.2 Corporate Power and
Authority. ____ 3031
Section 4.3 Legally Enforceable Agreement__________________________________ 31
Section 4.4 Governmental Approvals_______________________________________ 31
Section 4.5 Indebtedness_________________________________________________ 31
Section
4.6 Other Agreements, No Default. ____ 3132
Section 4.7 Litigation. _____ 3132
Section 4.8 Ownership and Liens___________________________________________ 32
Section 4.9 Capital
Structure______________________________________________ 32
Section 4.10
Permits. 3233
Section 4.11
Taxes_______________________________________________________ 33
Section 4.12
Debt and Liens Securing Same___________________________________ 33
Section 4.13
Federal Reserve Regulations_____________________________________ 33
Section
4.14 Fiscal Year. 3334
Section 4.15 No Broker's Fees. 3334
Section 4.16
Investment Company Act, Public Utility Holding Company Act. 3334
Section 4.17 Use
of Proceeds. 3334
Section 4.18 Environmental Matters. ___ 3334
Section 4.19 Compliance with Laws. ___ 3435
Section 4.20 No Defaults or Material Adverse
Effect. ___ 3435
Section 4.21 Labor Disputes and Acts of God. __ 3435
Section 4.22 ERISA
Compliance. ___ 3435
Section 4.23 Insurance. ___ 3536
Section 4.24 Location of Real Property
and Leased Premises. __ 3536
Section 4.25 Security Documents___________________________________________ 36
Section 4.26
Sanction Concerns____________________________________________ 36
Section 4.27 Sufficiency. ___ 3637
Section 4.28 Government Regulation.
___ 3637
Section 4.29 Approved Projects. ___ 3637
Section 4.30 No Other Bank Accounts. ___ 3637
Section 4.31 Solvency____________________________________________________ 37
Section 4.32 Financial Statements___________________________________________ 37
Section 4.33 Construction Costs. 3738
Section
4.34 Joint Ventures. 38
Article V AFFIRMATIVE COVENANTS 3738
Section
5.1 Maintenance of Existence. 3738
Section 5.2 Maintenance of Records. 3738
Section 5.3 Business and Properties. 3738
Section 5.4 Maintenance of Insurance. 3738
Section 5.5 Taxes. 3839
Section 5.6 Right of Inspection. 3839
Section 5.7 Reporting Requirements. 3839
Section 5.8 Litigation and Other Notices. 3940
Section 5.9 Supervision of Construction.
4142
Section 5.10 Energy
Regulation. 4142
Section 5.11 Use
of Proceeds 41; Use of Cash Flow. 42
Section 5.12 Additional
Collateral. 4143
Section 5.13 Material
Project Documents. 4143
Section 5.14 Construction
Costs. 4243
Section 5.15 Account
Controls. 4243
Section 5.16 Further Assurances. 4244
Article VI NEGATIVE COVENANTS 4244
Section 6.1 Liens. 4345
Section 6.2 Debt. 4345
Section 6.3 Guaranties. 4446
Section 6.4 Sale of Assets. 4446
Section 6.5 Developer Fee. 4447
Section 6.6 Restricted Payments. 4447
Section 6.7 Project Debt Service Coverage Ratio 45Financial Covenants. 47
Section 6.8 Burdensome Agreements. 4547
Section 6.9 No Accounts. 4547
Section 6.10 Change
Name; Location or State of Incorporation. 4547
Section 6.11 Fiscal Year. 4547
Section 6.12 Management/Control and Accounting
Methods. 4548
Section 6.13 Sale and Leaseback. 4548
Section 6.14 Sanctions. 4548
Section 6.15 Affiliate Contracts. 4548
Section 6.16 JV Agreements. 48
Article VII SECURITY 4648
Section 7.1 Security. 4648
Section 7.2 Release of Borrower
46[Reserved]. 48
Section 7.3
Bank Account.
4648
Section 7.4 Security Documents.
4649
Section 7.5
Collateral. 4649
Article VIII Error! Bookmark not defined.
Article VIII EVENTS OF DEFAULT
4649
Section 8.1 Events of Default. 4649
Article IX Error! Bookmark not
defined. ADDITIONAL OBLIGORS 53
Section 9.1 Obligations. 5053
Section 9.2 Additional
Obligors. 5053
Article X GENERAL PROVISIONS 5153
Section
10.1 Amendments. 5153
Section 10.2
Notices, Etc. 5154
Section 10.3
No Waiver; Remedies. 5254
Section 10.4 Successors and Assigns. 5254
Section
10.5 Transfer of Lender's Interests. 5255
Section 10.6
Right of Setoff. 5356
Section 10.7
Governing Law; Jurisdiction. 5356
Section 10.8
Entire Agreement, Severability of Provisions. 5456
Section 10.9
Waivers. 5457
Section 10.10 Survival of Agreement. 5558
Section 10.11 Construction. 5558
Section 10.12
Captions. 5558
Section 10.13 Counterparts. 5558
Exhibit A Project Approval
Package
Exhibit B Lender Approval
Form
Exhibit C Notice of Borrowing
Exhibit D Joinder
Agreement
Exhibit E Reserved
Exhibit F Revolving
Loan Note
Exhibit G Term Loan Note
Exhibit H Project Budget
Modification
Schedule 1 List of Approved Projects
Schedule 2 Term
Loan Amortization
Schedule 4.9 Capital Structure
Schedule 4.12 Debt and Liens Schedule 4.18 Environmental Matters
Schedule 4.22 Plans/Multiemployer Plans Schedule 4.23 Insurance
Schedule 4.24(a) Owned Real Property
Schedule 4.24(b) Leased Real Property Schedule 6.15 Affiliate Contracts Schedule 7.1 Security Documents
Schedule 7.3 Account Restrictions
Schedule 9.1 Guaranty Terms
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is
entered into as of the 5th day of October, 2020 among ENERGEA GLOBALPORTFOLIO 2 LLC, a Delaware limited
liability company with its principal place of business located at 0 Xxxxx Xxxx,
Xxx Xxxxxxxx, XX 00000 ("Borrower"), ENERGEA PORTFOLIO 2 LLC, a Delaware limited liability company with its principal place of business
located at 0 Xxxxx Xxxx, Xxx Xxxxxxxx,
XX 00000, ENERGEA GERAÇÃO DISTRIBUÍDA DE ENERGIA
DO BRASIL S.A., a limited
liability company
headquartered in the Municipality of Rio
de Janeiro, State of Rio de Janeiro,
at 00 Xxxxxxx Xxxxx Xxxxxx, and LATTICE ENERGEA GLOBAL REVOLVER
I LLC, a Delaware limited liability company having a place
of business at 000 X. 00xx Xx., Xxx. 14C, New York, NY 10010 ("Lender").
PREAMBLE
WHEREAS,
subject to the terms and conditions set forth herein, Borrower
has requested Lender to advance Revolving Loans in the maximum principal amount of $5,000,000 to finance in part the construction and/or
acquisition of solar projects which qualify
as Approved Projects (as defined below) owned
by indirect subsidiaries of Borrower referred
to herein as the Project
SPEs;
WHEREAS, Xxxxxxxx's direct subsidiaries, referred to herein as the
Portfolio Companies, shall arrange for the
remaining funding for the
construction and/or acquisition of the Approved
Projects via an equity offering from the Additional Investors;
WHEREAS, upon completion of construction and subject
to the terms and conditions set forth herein, Xxxxxxxx has
requested Lender to advance the Term Loan based on
the conversion of the
outstanding Revolving Loan in the maximum principal amount of $5,000,000;
WHEREAS, Borrower, the Portfolio Companies, Energea Brasil and the
Project SPEs shall grant the liens contemplated herein on the Collateral (as
defined below) to secure Xxxxxxxx's outstanding obligations hereunder and, if
and to the extent provided herein, act as additional obligors with respect to
Xxxxxxxx's outstanding obligations hereunder; and
WHEREAS, Xxxxxx has agreed to extend the aforesaid loans subject
to the terms and conditions set forth below;
THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the
parties to this Agreement do each hereby agree as follows:
Article
IARTICLE I DEFINITIONS
AND ACCOUNTING TERMS
Section 1.1 Defined Terms. The following capitalized terms are used in this Agreement with the respective meanings set forth
in this Section
1.1:
"Account Agreement" means,
with respect to a General Xxxxxxx and each Approved Project, an agreement
entered into by and between the Lender, the General Obligor and the respective Project
SPE, wherein any bank accounts
held by the General Obligor
and the respective Project SPE shall be treated as Collateral and subject to a lien and in
favor of the Lender in
order to guaranty and secure the Borrower's obligations hereunder.
"Additional Investors" means third Person investors which
contribute capital to one or more of the
Portfolio Companies which is in turn contributed to the Project SPEs to fund
one or more Approved Projects.
"Additional Obligor" means (i) each Term Loan
Obligor, (ii) each General Obligor,
and
(iii) each other affiliate of Borrower that
may become an "Term Loan Obligor" or a "General Obligor from time to time
pursuant to Section 9.2 via execution and delivery of a Joinder Agreement.
"Additional Project
Document" means, with respect to each Project, any contract, agreement or other
arrangement entered into by any Loan Party after the Drawdown Date
of the first Revolving Loan relating
to such Project that (a) constitutes a Primary Revenue
Agreement,
(b) constitutes an Interconnection Agreement, (c) constitutes a Maintenance Services
Agreement,
(d) replaces or substitutes for an existing
Material Project Document or any further replacement or substitution thereof, (e) constitutes an Applicable Permit,
or (f) involves the payment
of receipt by the applicable
Loan Party of more than $10,000 annually or an amount equal to five percent
(5%) or more of the applicable Construction Budget or Operating Budget for such
Approved Project, as applicable.
"Affiliate" means, when used
with respect to a specified Person, another Person that directly, or indirectly through
one or more intermediaries, Controls
or is Controlled by or is under common Control with, the Person
specified and shall include another Person who Controls ten percent (10%) or
more (on a fully diluted
basis) of the voting securities or other equity
interest of the Person specified.
"Agreement" means this
Credit Agreement, as amended, restated, supplemented, or otherwise modified and
in effect from time to time.
"Applicable Permit" means,
with respect to each Project, any Permit, including any zoning, environmental
protection, pollution, sanitation, regulatory, safety, siting or building
Permit that is material and necessary at any given time in
light of the development,
construction, ownership or operation of such Project to develop, construct,
operate, maintain, repair, own or use such Project as contemplated by the
Material Project Documents for such Project, to sell electricity, capacity,
ancillary services or environmental credits or benefits therefrom,
or to enter into any Material
Project Document or to consummate any
transaction contemplated thereby.
"Applicable Rate" means the rate of interest with respect to any Loan pursuant to Section
2.1(a) or 2.1(b), as applicable.
"Approved Project" means any Project owned by a Project
SPE for which, pursuant to Section 2.1(a)(i), Borrower has provided
Lender a Project
Approval Package (in the form of
Exhibit A: Project Approval Package) and which Lender has approved (in the form of Exhibit B: Lender Approval Form), a list of which shall be maintained by Xxxxxx, and updated from time to time by Xxxxxx, in Schedule 1: List of Approved Projects. For the
avoidance of doubt, Xxxxxxxx shall not have the authority to revise Schedule 1: List of Approved Projects.
"Assignment Notifications" means,
with respect to a General
Obligor and each Approved
Project, a notification to be sent by the General Obligor and the respective
Project SPE to each counterparty to a Material Project Document informing such
counterparty about the fiduciary assignment of
certain credit rights held by the General Obligor
and the Project SPEs against
such counterparties to the Material Project
Document, which shall be treated
as Collateral and subject
to a lien granted in favor of the Lender in order to guarantee and secure the
Borrower's obligations hereunder.
"Availability Period"
means, with respect to the Loans, the period
from and including
the Closing Date to the Revolving Loan Maturity Date.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Account" means the bank account of Borrower with Citizen's Bank
with account number 2231933734 .
"Business
Day" means any day other than a
Saturday, Sunday, or other day on which banks in the State
of Delaware are required or
authorized by law to be closed.
"Closing Date" has
the meaning specified in
Section 3.1.
"Code" means the Internal Revenue Code of 1986,
as amended from time to time.
"Collateral" means (i) all the "Collateral", "Collateral Accounts" and "Property" as
defined in any Security
Document, (ii) all other property
described as collateral in Schedule 7.1,
and (iii) all other property
now or hereafter subject to the Liens granted in the Security Documents.
"Commitments" means the Revolving Loan Commitment and the Term Loan Commitment.
"Contaminant" means any pollutants, hazardous or toxic
substances or wastes or contaminated materials which are subject
to regulation under, or the Release of which or exposure
to which is prohibited, limited or
regulated under, any Environmental Law.
"Control" means the
possession, directly or indirectly, of the legal power to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or otherwise, and the terms "Controlling"
and "Controlled" shall have the meanings correlative thereto.
"Construction Budget"
means that term as defined
in Section 3.2(d).
"Conversion Option"
means that term as defined
in Section 2.1(b)(ii).
"Current P2 Asset"
means the projects of Borrower and its Subsidiaries, including Approved Projects,
listed on Schedule 6.4.
"Debt" of any Person,
means, without duplication: (a) all indebtedness or liability of such
Person for borrowed money, or with respect to deposits or advances of any kind;
(b) all obligations of such Person evidenced by notes, bonds, debentures or
similar instruments; (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property or assets purchased by such Person; (d) all
obligations of such Person issued
or assumed as the deferred purchase price of property or services
(including trade obligations and accrued obligations incurred in the ordinary course of business); (e) all indebtedness
or liability of others secured by (or for which the holder of such Debt has
an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed; (f)
all obligations of such Person under capital leases; (g) all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements; (h) current liabilities of such Person in respect
of any Plan; (i) obligations of such Person under letters of credit, bankers acceptances or
comparable arrangements; (j) all obligations of such Person under guaranties,
endorsements (other than for collection or deposit in the ordinary course of
business), and other contingent obligations of such Person to purchase, to
provide funds for payment, to supply funds to invest in any Person, or
otherwise to assure a creditor against loss; and (k) all other indebtedness of
such Person that in accordance with GAAP is classified as liabilities upon the
balance sheet of such Person or to which reference is made by footnotes
thereto. The Debt of any Person (x) shall include the Debt of any partnership
in which such Person is a general partner, and (y) in the case of any limited recourse liability, shall not exceed the amount of such recourse.
"Debtor Relief Laws" means the Bankruptcy Code of the
United States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time
in effect and affecting the rights of
creditors generally.
"Default" means an event or
condition the occurrence or existence of which, with the lapse of time or the giving of a required notice, or both, would
constitute an Event of Default.
"Default Rate" means the Applicable Rate plus one percent (1%)five percent (5%); provided in no
event shall the Default Rate exceed
the maximum lawful rate which may be contracted for, charged, taken, received or reserved
by the Lender in accordance with applicable law.
"Designated Jurisdiction" means any country
or territory to the
extent that such country or territory is the subject of any
Sanction.
"Dollar" and the sign "$" means
lawful money of the United
States of America.
"Drawdown Date"
means the date (which must be a Business Day) on which any Loan is
made.
"DS Account" means a bank account maintained at Brookline Bank
which is subject to an account control
agreement in favor of Lender
and which shall be funded
at all times in accordance
with Section 5.16(b).
"Energea Brasil" means Energea Geração Distribuída de Energia do Brasil S.A.
"Energea Global" means Energea Global LLC, a Delaware limited liability company with its principal place of business
located at 0 Xxxxx Xxxx, Xxx Xxxxxxxx, XX 00000.
"Environment" means ambient
air, surface water and groundwater (including potable water, navigable water
and wetlands), the land surface or subsurface strata, the workplace or as
otherwise defined in any Environmental Law.
"Environmental Claim" means
any accusation, allegation, notice of violation, claim, demand, order, directive, cost recovery action or other cause of action by, or on behalf of, the
U.S. Environmental Protection Agency, any
other Governmental Authority or any other Person, for damages, injunctive or equitable relief, personal injury (including sickness, disease or
death), remedial action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the Environment caused by any Contaminant, or for fines, penalties or
restrictions, resulting from or
based upon (a) the existence, or the continuance of the existence, of a Release
(including sudden or non-sudden, accidental or non-accidental Releases), (b)
exposure to any Contaminant, (c) the presence, use, handling, transportation,
storage, treatment, or disposal of any Contaminant, or (d) the violation or alleged violation
of any Environmental Law.
"Environmental Law" means any and all applicable present
and future treaties, laws, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the Environment, preservation or
reclamation of natural resources, the management, use, treatment, storage,
disposal, transportation, transfer, generation, processing, production, refining, control, handling, Release or threatened Release of
any Contaminant or to health and safety matters; all laws, rules and
regulations governing underground or above-ground storage tanks, conditioning
transfer of property upon a form of negative declaration or other approval of a
Governmental Authority of the
environmental condition of a
property or requiring the disclosure
of conditions relating to Contaminants in connection with transfer of title to
or interest in property; conditions or requirements imposed in connection with
any Applicable Permits; government orders and demands and judicial orders
pursuant to any of the foregoing; any and all other laws, rules and regulations of
any Governmental Authority relating to the protection of human health or the
Environment from Contaminants; and all amendments or regulations promulgated
under any of the foregoing.
"EPC Contract" means, with respect to each Approved
Project, the engineering, procurement and construction agreement for the Facility or any other agreement for the supply
of equipment or construction services.
"EPC Contractor" means, with respect to each Approved Project, a third party contracted to act as the contractor for
such Approved Project pursuant to any EPC Contract.
"Equity Interests" means, for any Person, any and all shares,
interests, rights to purchase,
warrants, options, participation or other equivalents of or interests
in (however designated) equity of such Person,
including any preferred equity interests, any limited or general partnership interest and any limited
liability company membership interest.
"ERISA" means the Employee
Retirement Income Security
Act of 1974, as amended
from time to time, the regulations and published official
interpretations thereunder and judicial interpretations thereof.
"ERISA Affiliate" means any
trade or business (whether or not incorporated) under common control with
Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412
of the Code).
"ERISA Event" means (a) a
Reportable Event with respect to a Pension Plan; (b) the withdrawal of Borrower
or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity 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 Borrower or
any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to
terminate, the treatment of a Pension Plan amendment as a termination under
Section 4041 or 404 lA of ERISA, (e) the institution by the PBGC of proceedings
to terminate a Pension Plan; (f) any 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;
(g) the determination that any
Pension Plan is considered an at-risk
plan or a plan in endangered
or critical status within
the meaning of Sections 430, 431 and 432 of the
Code or Sections
303, 304 and 305 of ERISA, 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 Borrower or any ERISA Affiliate.
"Event of Default" means
any of the events specified
in Section 8.1.
"Facility" means a PV System
or other renewable energy generation technology approved by Lender.
"Fiscal Year"
means the fiscal
year of Borrower ending on December 31 of each calendar
year. For purposes of this Agreement,
any particular Fiscal Year shall be designated by reference
to the calendar year in which such Fiscal Year
ends.
"General Obligor"
means (i) Energea Brasil, and (ii) each other
affiliate of Borrower that may become an "General Obligor" from time to time
pursuant to Section 9.2 via execution and delivery of a Joinder Agreement.
"Governmental Authority" means any federal,
state, provincial, municipal, foreign or other governmental department, agency,
commission, board, bureau, court, tribunal, instrumentality, political
subdivision, or other entity (including
any zoning authority, FERC, the
Federal Deposit Insurance
Corporation, any state public utilities commission or other agency regulating
public utilities or electric utilities, any applicable independent system
operator, the Comptroller of the Currency or
the Federal Reserve Board, any central
bank or any comparable
authority) or officer exercising executive, legislative, judicial, regulatory or administrative functions for or pertaining
to any government or court, in each case whether associated with the United
States, a state, district or territory thereof, or a foreign entity or
government.
"Increase Option" means
that term as defined in Section 2.1(a)(v). "Indemnitee" means that term
as defined in Section 10.5(c).
"Initial Amount"
means an amount
equal to $2,500,000.
"Initial COD" means the date
the first Approved Project completes construction and achieves commercial operations, substantial completion or its equivalent.
"Interconnection Agreement"
means, with respect to each Approved Project, the agreement relating to
interconnection of such Approved Project with the relevant electric utility, that does
not materially diverge for the form approved by the appropriate Governmental
Authorities of the state or country in which such Approved Project is located.
"Joinder Agreement" shall mean a
joinder agreement in the form of Exhibit D.
"Key Project Participant"
means each Offtaker, EPC Contractor, Maintenance Services Provider, and each
Person providing the Project Warranties; provided,
however, that any Person shall cease to be a Key Project Participant when all material
obligations of such Person under all Material Project Documents to
which it is a party have been indefeasibly performed
and paid in full.
"Knowledge" means, with respect to Xxxxxxxx, the actual knowledge
after due inquiry
of any officer, director
or manager of the Loan Parties or any Person
that may succeed the foregoing
Persons in their respective capacities, provided that in each case such due inquiry shall
not require any inquiry
to be made of any Person that is not an Affiliate of Borrower.
"Laws" means, collectively,
all Federal, state and local statutes, ordinances, by-laws, codes, rules,
rulings, regulations, restrictions, orders, judgments, decrees, writs, judicial
or administrative interpretations and injunctions (including without limitation, all applicable building,
environmental, zoning and other land use statutes, ordinances, by-laws,
codes, rules and regulations and all requirements under an
Applicable Permit), whether
now or hereafter enacted,
promulgated or issued by any Governmental Authority affecting Borrower, any Approved Project
or the ownership, construction, development, maintenance,
management, repair, use, possession or operation thereof.
"Lender" means Lattice Energea Global Revolver I, LLC, or any
successors or assigns thereof.
"Lender's
Bank Account" means account no. 613813309 held at JPMorgan
Chase Bank,
N.A.
"Lien" means, with respect
to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance,
charge or security interest in or on such asset, whether based on common law,
statute, or contract, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset, and (c) in the
case of securities, any purchase
option, call or similar right of a third party with respect to such securities.
"Loans" collectively means the
Revolving Loan and the
Term Loans.
"Loan Amount" means the amount drawn from the Commitment according to any particular
Loan.
"Loan Documents" means all now existing or hereafter
arising instruments, loan agreements and any other agreements and documents
governing, evidencing, guarantying, securing or otherwise relating to any or
all of the Obligations, together with all amendments, modifications, renewals
or extensions thereof, including without limitation, this Agreement, the
Revolving Loan Note, the Term Loan Note,
the Security Documents, a Joinder Agreement if and when
required pursuant to Section 9.2, all other
promissory notes, guaranties, mortgages, security
documents, deeds to secure debt, deeds of trust, pledges, assignments,
contracts, negative pledges, powers of attorney, landlord waivers, trust
account agreements, and written matters, whenever executed and delivered
to Lender, with respect to the transactions contemplated by this
Agreement.
"Loan Parties" or "Loan
Party" shall mean Borrower, the Portfolio Companies and the Project SPEs.
"Loan Statement" means the monthly bulletin
Lender shall send to Borrower
according to Section
2.1(a)(vi) and Section 2.2(b)(iv).
"Loss Proceeds" means all amounts and proceeds (including instruments) in respect
of the proceeds of any casualty
insurance policy maintained by any Loan Party received
in respect of any
single event or related series of events with respect to all or any portion of
the Collateral and in respect of the
proceeds of any condemnation of all or any portion of the Collateral.
"Make-Whole Premium"
means an amount equal to (a) in the case of the prepayment of a
Revolving Loan, the sum of the amount of interest that would have been payable
on such Revolving Loan if such Loan was repaid on the Revolving Loan Maturity
Date plus amount of interest that would have been payable on such Revolving
Loan if such Loan was converted to a
Term Loan and
repaid on the 5th anniversary of applicable conversion date, and (b) in the case of the prepayment of a Term Loan, the
amount of interest that would have been payable on such Term Loan if
such Loan was repaid on the 5th anniversary of applicable
conversion date.
"Maintenance Services Agreement" means, with respect to
each Approved Project, a maintenance services agreement that the Project SPE
has or intends to execute with a Maintenance Services Provider defining the
terms and conditions under which the Maintenance Service Provider has agreed to
provide maintenance services for such Approved Project.
"Maintenance Services
Provider" means the third party contracted by Xxxxxxxx, in its capacity as
Manager, under each Maintenance Services Agreement.
"Material Adverse Effect"
means (a) a material adverse effect
on the business, condition (financial or otherwise), operations or properties
of Borrower, including, but not
limited to, as a result of any change
in the energy credit provided for
under Section 48 of the Code or any other federal tax credit laws, (b)
a material adverse change in the ability of any Key Project
Participant to perform its respective material obligations under
the Material Project
Documents to which
it is a party and the result
of such inability could reasonably be expected to result in a Material Adverse
Effect pursuant to the other clauses hereof, (c) material impairment of the
validity or enforceability of this Agreement
or any of the other Loan Documents, (d) material impairment of the ability of Lender
to enforce any of the rights and remedies of Lender hereunder or under any other Loan
Document, (e) material impairment of the ability of Borrower to perform its
obligations under any Loan Document to which it is a party, and (f) material
impairment of the value of the Collateral, taken as a whole.
"Material Project Documents"
means, with respect to each Project, collectively, (a) the Primary Revenue
Contract, (b) each EPC Contract, (c) each Project Warranty, and (d) each
Additional Project Document,
including, but not limited to, each Interconnection Agreement and each Maintenance Services Agreement, and Applicable Permits,
site leases and easements or other
real property rights in each case relating to such Project.
"Maximum Amount" means an amount equal to $5,000,000.
"Note" means any Revolving Loan Note and any Term Loan Note.
"Notice of Borrowing" means that term as defined
in Section 2.1(a)(iii).
"Obligations" means all loans, advances, interest, fees (including interest and fees accruing during the pendency of any proceeding under any Debtor
Relief Laws naming Borrower as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding
bankruptcy), Debt, liabilities, obligations, guaranties, indemnities, covenants
and duties at any time owing by Borrower to Lender or any Affiliate of Lender,
of every kind and description, whether or not evidenced by any note or other instrument,
whether or not for the payment of money,
whether direct or indirect, primary or
secondary, absolute or contingent, due or to become due, now existing
or hereafter arising,
including, but not limited to, the Obligations arising under the each Note, cash management agreements, or any
of the other Loan Documents, and all reasonable costs,
expenses, fees and charges (including, but not limited
to, reasonable
attorneys' fees) incurred in connection with
any of the foregoing, or in any way involving or relating to the preservation,
enforcement, protection or defense of, or realization under this Agreement, any Note, any cash management agreement or any other Loan Document, any related
agreement, document or instrument, and the rights and remedies hereunder or
thereunder, the Notes and/or any of the other Loan Documents.
"Obligor Actual
Net Cash Flow" means, for any period,
all revenues received
by the Term Loan Obligors and their respective Subsidiaries during such
period, less any amounts (without duplication) paid (and other amounts
required to be paid that are not the subject of a good faith dispute) for operating and administrative expenses
during such period by or on behalf of Term Loan Obligors, including taxes.
"Obligor Debt Service" means, for any period, the sum of all scheduled interest, scheduled
principal, premiums (if any) and scheduled fees paid or payable during such period
in respect of all
Debt of the Term Loan Obligors and their respective Subsidiaries, including without
limitation the Obligations
and debt service for any Debt
permitted pursuant to Section 6.2(d).
"Obligor Debt Service Coverage
Ratio" means, as of any date following
the Closing Date, for any trailing twelve (12) month period ending on such date, the ratio of (x) Obligor Actual
Net Cash Flow to (y)
all Obligor Debt Service paid (or scheduled to be paid) during
such twelve (12) month period.
"OFAC" means the Office of Foreign Assets Control of the
United States Department of the Treasury.
"Offtaker" means, with
respect to each Approved Project, a third party contracted to act as the offtaker or purchaser of energy and related products
for such Approved
Project pursuant to any Primary Revenue Contract.
"Operating
Budget" means that term as defined in Section 3.3(d). "Overrun Event" means that term as
defined in Section 3.2(e).
"PBGC" means the Pension
Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Pension Act" means the Pension
Protection Act of 2006.
"Pension Funding Rules"
means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending
prior to the effective date of the Pension
Act, Section 412 of
the Code and Section 302 of ERISA, each as in effect prior to the Pension Act
and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
"Pension Plan" means any employee pension
benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to Borrower and any ERISA
Affiliate and is either covered
by Title lV of ERISA or is subject to the minimum
funding standards under Section 412 of the Code.
"Permit" means any and all franchises, licenses, permits,
clearances, determinations, notifications,
certifications, registrations, authorizations, exemptions, qualifications,
rights of way, and
other rights, privileges and approvals required
to be obtained from a Governmental Authority under any Law (including any
Environmental Law).
"Permit Event" means, with
respect to each Approved Project, an Applicable Permit is either not obtained
as and when required to construct or operate the Project or is canceled or
revoked at any time.
"Permitted Accounts" means
any deposit or securities account of a
Project SPE which is subject to an Account Agreement as contemplated herein.
For the avoidance
of doubt, any deposit
or securities account of a Project SPE that is not subject to an Account
Agreement shall be deemed not to qualify as a Permitted Account.
"Permitted Liens"
means that term as defined
in Section 6.1(c).
"Permitted Revolver
Prepayment" has the meaning given to such term in Section 2.1(a)(ix).
"Person" means any natural
person, sole proprietorship, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, organization, joint venture, institution, Governmental Authority,
or other entity of any nature whatsoever.
"Plan" means any employee
benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan),
maintained for employees
of Borrower or any ERISA Affiliate or any
such Plan to which Borrower or
any ERISA Affiliate is required
to contribute on behalf
of any of its employees.
"Pledged Entities"
means the Portfolio Companies (excluding the Borrower and Equity Interests
issued to the Additional Investors) and the Project SPEs.
"Portfolio 2" means Energea
Portfolio 2 LLC.
"Portfolio Companies" means (a) Portfolio 2, a Delaware
limited liability company
formed in Delaware for the
exclusive purpose of owning the Project SPEsBorrower and (b) each other affiliate of Borrower
that may become a "Term Loan Obligor" from time to time pursuant to Section 9.2
via execution and delivery of a Joinder Agreement.
"Primary Revenue Agreement"
means, with respect to each Approved Project, a solar power and services
agreement or its equivalent executed by the Project SPE and Offtaker, and such
Offtaker agrees to purchase electricity from such Project SPE.
"Project" means any power generation project which
qualifies as an Approved Project pursuant to Section 2.1(a)(i).
"Project Actual Net Cash
Flow" means, for any period, all Project
Revenues received by the Project SPEs during such period, less any
amounts (without duplication) paid (and other amounts required to be paid that
are not the subject of a good faith dispute)
during such period
by or on behalf of the Project SPEs in accordance with the applicable
Operating Budget(s) for each Approved Project, including taxes.
"Project Assets" means, as
to each Approved Project, the Facility, the Material Project Documents and the Applicable Permits for such Project and all other assets owned by the Project
SPE.
"Project Commitment" means
an amount equal to the portion of the Revolving Loan Commitment that is approved
for a specific Approved Project
as reflected in the Lender Approval
Form for such Approved Project.
"Project Debt Service" means, for any period, the sum of all scheduled interest, scheduled principal, premiums (if any) and scheduled fees paid or payable during such period
in respect of all
Debt of the Portfolio Companies and the Project SPEs, including without
limitation the Obligations and debt service for any Debt permitted pursuant to Section 6.2(d).
"Project Debt Service
Coverage Ratio" means,
as determined on the last Business Day of
the second full calendar quarter following the Initial COD and each calendar
quarter thereafter, for any trailing
twelve (12) month period ending on such date,
the ratio of (x) Project Actual Net Cash
Flow to (y) all Project Debt
Service paid (or scheduled to be paid) during such twelve (12) month period.
"Project Revenues" means,
for any period, all revenues, payments, and cash receipts arising from the business or operations of any Project
SPE during such period.
"Project SPE" means each subsidiary of the Portfolio Companies which is constructing or owns and operates an Approved Project.
"Project Warranties" means
the warranties from the EPC Contractor and each manufacturer with respect to
panels, inverters, and racking systems.
"Property" means
each real property
owned, leased or occupied by Xxxxxxxx.
"Prudent Industry Practices"
means those practices, methods, equipment, specifications and standards of
safety and performance, as the same may be changed from time to time, as are
generally used in the start-up, commissioning, operation and maintenance of
privately owned distributed generation facilities located in the same region as
a given Approved Project of comparable size, which,
at a particular time, in the exercise
of reasonable judgment
and in light of the facts
known at the time the decision was made, are considered good, safe and prudent practice.
"PUHCA" means the Public
Utility Holding Company
Act of 2005 and all implementing rules of FERC.
"PV System" means a
distributed generation photovoltaic solar generating system, including, but not
limited to, the photovoltaic panels, racks, wiring and other electrical devices, conduit, weatherproof housings,
hardware, inverter(s), remote monitoring system, connectors, disconnect, and
overcurrent devices included in such photovoltaic system.
"REC" means any credits, credit certificates, green tags, allowances, offsets, entitlements
or similar environmental or green energy attributes (such as those for greenhouse reduction or the generation of green power or renewable
energy) created by a Governmental Authority or independent certification board
or group generally recognized in the electric power generation industry, and
generated by or associated with a Project or electricity produced therefrom,
but excluding the energy credit
provided for under Section 48 of the Code.
"REC Agreement" means, with respect to an Approved
Project, any agreement relating to the sale
of RECs from such Approved Project between the purchaser of RECs from such
Approved Project and the applicable Project SPE.
"Related Parties" means, with respect to any Person, such
Person's Affiliates and the partners, directors, officers, employees, agents,
trustees, administrators, managers, advisors and representatives of such Person
and of such Person's Affiliates.
"Release" means any spilling, leaking, migrating, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Contaminant
in, into, onto or through the Environment.
"Reportable Event" means any of the events
set forth in Section
4043(c) of ERISA,
other than events for which the 30-day
notice period has been waived.
"Responsible Officer"
means, as to any Person,
its president, chief executive officer,
chief financial officer, treasurer or secretary (or assistant
secretary), any of its vice presidents, or any managing general partner or managing member of such Person that is
a natural person
(or any of the preceding with
regard to any managing general partner or managing member of such Person
that is not a natural person).
"Restricted Payment" means,
as to any Person, (a) any dividend or other distribution by such Person
(whether in cash, securities or other property) with respect to any equity
interest of such Person, (b) any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of such equity interest or on account
of any return of capital to any holder of any such Person's equity interests,
(c) the acquisition for value by such Person of any equity interests issued by
such Person or any other Person that Controls such Person, (d) any payment made
to retire, or to obtain the surrender
of, any outstanding warrants,
options or other rights to acquire
shares of any class of equity interests Borrower or any Subsidiary, now or
hereafter outstanding, and (e) with respect to the foregoing
clauses (a) through
(d) of this definition, any transaction that has a substantially similar effect.
"Revolving Loan" means that term as
defined in
Section 2.1(a)(ii).
"Revolving Loan Commitment" means Xxxxxx's commitment to advance Revolving Loans to Borrower
pursuant to Section 2.1(a) in an aggregate principal amount not to exceed at
any time outstanding the Initial Amount; provided that such amount shall be
increased to the Maximum Amount upon Xxxxxx's approval of the Increase Option
in its sole discretion as provided in Section 2.1(a)(i).
"Revolving Loan Disbursement" means that
term as defined in Section 2.1(a)(iii). "Revolving Loan Maturity Date"
means the earlier
of (i) September 30, 2023, and (ii) any
earlier date on which all monetary Obligations shall become due and payable in full hereunder,
whether by acceleration or otherwise.
"Revolving Loan Note" means the Revolving Loan Note of
Borrower dated the date of this Agreement and payable to the order of Lender in
substantially the form of Exhibit G, evidencing the Obligations arising
from the Revolving Loans, and any and all substitutions and replacements
thereof, all as the same may be amended and/or modified from time to time by Lender.
"Sale Proceeds" means all amounts and proceeds (including instruments) in respect
of the proceeds of any sale of
any Collateral by any Loan Party received in respect of any single transaction
or related series of transactions with respect to all or any portion of the
Collateral except sales of energy,
capacity and related products by the Project SPEs in the ordinary course.
"Sanction(s)" means any
sanction administered or enforced by the United States Government (including,
without limitation, OFAC), the United Nations Security Council, the European
Union, Her Majesty's Treasury or any other Governmental Authority.
"Security Agreement" means
each security agreement, security and pledge agreement or other agreement or
instrument now or hereafter executed by a Loan Party or any other Person
granting Lender a security
interest in any Collateral to secure any of the Obligations, including as set
forth in Schedule 7.1.
"Security
Documents" means each Account Agreement, the account
control agreements governing the VH Account and the DS Account, each Assignment Notification, the Security Agreements, and all other
Loan Documents, contracts, assignments, instruments and the like now
or hereafter securing (or given with the intent to secure) all or a portion of
the Obligations, including as described in Schedule 7.1.
"Senior Debt" means the Loan
and Security Agreement, dated
January 10, 2019, by and between Borrower and the Senior
Lender.
"Senior Lender" means Enhanced Capital Connecticut Fund V,
LLC.
"Solvent" means, with
respect to any Person, that as of the date of determination, (a) the sum of such Person's debt (including
contingent liabilities) does not exceed the present fair saleable value of such Person's present
assets; (b) such Person's capital
is not unreasonably small
in relation to its business as contemplated on
such date of determination; (c) such Person
has not incurred and does not
intend to incur, or believe that it will incur,
debts beyond its ability
to pay such debts as they become due (whether at maturity or otherwise);
and (d) such Person is "solvent" within the meaning given that term and similar
terms under the Bankruptcy Code and
applicable laws relating to fraudulent transfers and conveyances. For purposes
of this definition,
(i) the amount
of any contingent liability at any time shall be computed as the amount
that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability (irrespective of whether
such contingent liabilities meet the criteria for accrual under Statement of
Financial Accounting Standard No. 5), (ii) "debt"
means liability on a "claim," and (iii) "claim"
means (A) any right
to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured
or unsecured or
(B) right
to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
"Subsidiary" means,
with respect to any Person,
a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of
Equity Interests having ordinary
voting power for the election
of directors or other governing
body are at the time beneficially owned, or the
management of which is otherwise Controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person. In the case of Borrower, each Portfolio Company and each Project SPE shall constitute a Subsidiary.
"Term Loan" means that term as defined in Section 2.1(b)(i).
"Term Loan Commitment" means
Xxxxxx's commitment to advance the Term Loan to Borrower pursuant to Section
2.1(b) in an aggregate principal amount not to exceed at any time outstanding $5,000,000; provided that the Term Loan Commitment shall be $0.00 unless and until
Xxxxxx's decision to utilize the Conversion Option in its sole discretion as
provided in Section 2.1(b)(ii).
"Term Loan Maturity Date"
means the earlier of (a) the tenth (10th) anniversary of the date of
the advancement of the Term Loan, and (b) the date on which all monetary
Obligations shall become due and
payable in full hereunder, whether by acceleration or otherwise.
"Term Loan Note" means the
Term Loan Note of Borrower dated the date of this Agreement and payable to the
order of Lender in substantially the form of Exhibit
G, evidencing the Obligations arising from the Term Loans, and any and all
substitutions and replacements thereof, all
as the same may be amended
and/or modified by Lender from time to time.
"Term Loan Obligor" means (i) Portfolio 2, and
(iii) each other affiliate of Borrower that may
become an "Term Loan Obligor"
from time to time pursuant
to Section 9.2 via execution and delivery of a Joinder Agreement.
"VH Account" means a bank account maintained at Brookline Bank
which is subject to an account
control agreement in favor of Lender
and which shall be funded
with all of Energea Global's (direct or indirect) proceeds from
any sale of any projects owned (directly or indirectly) by Victory Hill
Joint Venture.
"Victory Hill" means VH
GSEO UK Holdings Limited, a limited liability company established under
the laws of England and Wales.
"Victory Hill Joint Venture"
means Victory Hill Distributed Energy Investments Limited, a limited
liability company established under the laws of England and Wales.
"Victory Xxxx XX Agreements" means (i) that certain Subscription
and
Shareholders' Agreement dated May 21, 2021 by and among Energea Global,
Victory Hill and Victory Hill Joint Venture, and (ii) all other
documents and agreements entered into by Energea Global relating to or
contemplated by the foregoing.
Section 1.2 Terms Generally. The definitions of terms herein
shall apply equally
to the
singular and plural forms of the terms
defined. Whenever the context may require,
any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed
to be followed by the phrase "without
limitation." The word "will"
shall be construed to have the same meaning and effect as the word "shall."
Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including the Loan Documents) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, modified,
extended, restated, replaced or supplemented from time to time (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words "hereto," "herein,"
"hereof' and "hereunder," and words of similar import when used in any Loan Document,
shall be construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the
Loan Document in which such references appear, (v) any reference to any law
shall include all statutory and regulatory rules, regulations, orders and
provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended,
modified, extended, restated, replaced or supplemented from time to time, (vi) the words "asset"
and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights, and (vii)
all terms of an accounting or
financial nature be construed, and
all computations or classifications of assets and liabilities and of income and expenses
shall be made or determined in accordance with, GAAP. Any and all references to "Borrower" regardless of whether preceded by the term a, any, each of, all, and/or, or any other similar term shall be deemed to
refer, as the context requires, to each and every (and/or any one or all)
parties constituting Borrower, individually and/or in the aggregate.
Section 1.3 Computation of Time Periods. In this Agreement, in the computation of
periods of time
from a specified date to a later
specified date, the word "from" shall mean "from and including" and the words "to"
and "until" each mean "to but excluding".
Section 1.4 Conflicting Terms. It being the express intention and agreement of
Borrower and Lender that the provisions of
this Agreement shall control and govern the Obligations, in the event and to the extent that any term or
provision of this Agreement
conflicts with a similar term or provision contained in another Loan Document,
the term or provision of this Agreement shall govern and control.
Article
IIARTICLE II AMOUNT AND TERMS OF THE CREDIT
FACILITIES
Section 2.1 The Credit
Facilities.
(a)
The Revolving Loans.
(i)
Approval of Projects. In
order to draw any Revolving
Loan
in connection with any Project, Borrower
shall have (i) submitted to Lender a Project Approval Package with respect to such Project in the form of Exhibit
A: Project Approval Package at
least ten (10) Business
Days prior to the
requested Drawdown Date,
and (ii) received
an approval from Lender for such Project in the form
of Exhibit B: Lender Approval Form indicating that such Project
qualifies as an Approved Project.
Lender shall maintain a list
of Approved Projects in the form of Schedule 1: List of Approved Projects. Each document attached to the Project Approval
Package shall be in form and substance acceptable to Lender. Lender shall be entitled to request change to the Project
Approval Package in which case Borrower may elect
to adopt such changes and re-submit
the Project Approval Package for approval by Lender in accordance with the foregoing.
(ii)
Revolving Loan Commitment. Subject to the terms
and
conditions
contained in this Agreement,
including the satisfaction of the conditions precedent set forth in Section 3.2 and the
approval of Xxxxxx as set forth in Section
2.1(a)(i), Xxxxxx agrees to make revolving loans (each, a "Revolving
Loan") to Borrower, from time to time, on any Business Day during the
Availability Period, which, in the aggregate, shall not exceed the Revolving
Loan Commitment (as adjusted as contemplated herein). The Borrower may request
Revolving Loans under Section 2.1(a)(iii). The Revolving Loans
shall be denominated in Dollars.
(iii)
Procedure for Revolving Loans.
(1)
Borrower shall be entitled to draw (x) one
Revolving Loan for corporate purpose
in the amount of $200,000, and (y) for each Project which qualifies as an Approved
Project in accordance with Section 2.1(a)(i), up to three Revolving Loans in
the maximum aggregate amount of the applicable Project Commitment subject to
the satisfaction of the conditions precedent
set forth in Section 3.2 ((x) and (y) collectively, the
"Revolving Loan Disbursements"). All Revolving Loan Disbursements shall
be an amount no less than $200,000.
(2)
Requests for Revolving Loans may be made only
once per Business
Day, and shall
be made on written notice,
given by Borrower
to Lender at least
five (5) Business Days prior to
the proposed Drawdown Date. Borrower
shall make no more
than three (3) requests for Revolving Loans as to any Approved Project.
Each such notice (which notice shall be irrevocable and binding on Borrower) of
a proposed borrowing shall be substantially in the form of Exhibit C: Form
Notice of Borrowing (each, a "Notice of Borrowing"), specifying the
proposed Drawdown Date and the amount to be borrowed. Subject to the
fulfillment of the applicable conditions precedent set forth in Section 3.2,
Xxxxxx will, on the Drawdown Date, make the requested Revolving Loan in
immediately available funds by crediting the amount thereof to the Borrower
Account.
(iv)
Interest Rate. Subject to the provisions of Section 2.1(d)
hereof, during the period from the date
advanced through and including the date of payment in full, each Revolving Loan shall bear interest
on the outstanding principal amount thereof at a rate per annum equal to fifteen percent
(15%).
(v)
Increase of Commitment. Prior to the Revolving Loan
Maturity Date,
in response to a request from Borrower,
Xxxxxx may agree, in its sole
discretion, to increase the Revolving Loan Commitment from the Initial Amount
up to the Maximum Amount ("Increase Option") in the form of Exhibit B:
Lender Approval Form.
(vi)
Revolving Loan Note. The Revolving
Loans shall be
evidenced by, and repaid with interest in
accordance with, the Revolving Loan Note. Borrower hereby authorizes Lender to
record on the Revolving Loan Note or in its internal computerized records (i)
the amount of each Revolving Loan made hereunder, and (ii) the amount of any
principal or interest received by Xxxxxx on account of the Revolving Loans;
provided, however, that the failure of Lender to make any such
recordation or any error therein shall not in any manner limit or otherwise
affect the obligations of Borrower under this Agreement or the Revolving Loan
Note, including without limitation, Xxxxxxxx's obligation to repay Revolving
Loans in accordance with their terms. Upon request by Xxxxxxxx, Xxxxxx will
issue a Loan Statement to Borrower reflecting all outstanding principal and
interest no more frequently than once per month.
(vii)
Use of Proceeds. The proceeds
of each Revolving Loan
shall be used solely to finance Xxxxxxxx's
purchase, development and construction of the Approved Project identified in the Notice of Borrowing for such Revolving
Loan; provided, that an amount equal
to $200,000 from the first draw on the Revolving Loans may be used by Borrower
as working capital for general corporate purposes.
(viii)
Payment of Interest. Principal and interest
payments on the
Revolving Loans
shall be made according to the below:
(1)
Interest on each Revolving
Loan shall be payable
quarterly in advance beginning on
the first Business Day
of the
quarter beginning with the
first full
calendar quarter following the advancement of
the Revolving Loan and each and every quarter thereafter, without notice or
demand, so long as any such Revolving
Loan remains outstanding. Notwithstanding the foregoing, at Borrower's option
upon notice to Lender, up to fifty percent (50%) of the interest accrued on all Revolving
Loans as of each calendar quarter can be deferred
until the Revolving Loan Maturity Date, provided that such deferred interest
shall be treated as the principal amount of
a Revolving Loan from the date of deferment
and interest shall accrue
on such deferred amount in accordance with the terms hereof applicable
to Revolving Loans.
(2)
In addition,
interest accrued on each Revolving
Loan shall be payable, without duplication: (i) on the Revolving Loan Maturity Date unless such Loan is converted and made part of
the Term Loan; and (ii) on the date of any payment or prepayment, in whole or in part, of principal outstanding on any Revolving Loan, on the principal
amount so paid or prepaid.
Interest accrued on any Loans or other monetary
Obligations after the date such amount is due and payable (whether on the applicable maturity
date, upon acceleration or
otherwise) shall be payable upon demand.
(ix)
Repayments and Prepayments of Revolver Loans.
(1)
Borrower may prepay or repay outstanding
Revolving Loans with respect to any Approved
Project if and only if Xxxxxxxx has first received
a prior Lender Approval Form approving a new Project Approval Package in
accordance with clauses (iv)(1) and (iv)(2) above in respect of a replacement Project with a Project
Commitment in an amount equal to the proposed prepayment or repayment amount
and concurrently submits the first Notice of Borrowing with respect to such
replacement Project (a "Permitted Revolver Prepayment"). A Permitted Revolver
Prepayment may be made on any Business Day during the Availability Period.
All such voluntary prepayments or repayments shall require at least three (3) Business Days' prior
written notice to Lender. Any prepayment or repayment of Revolving Loans other than a Permitted Revolver
Prepayment prior to the Revolving Loan Maturity Date shall be subject
to the concurrent payment of the Make-Whole Premium.
Following a Permitted
Revolver Prepayment, Borrower may reborrow Revolving Loans with respect
to the replacement Approved
Project subject to the requirements and conditions set forth herein.
(2)
Borrower shall prepay the Revolving Loans with any
Sales Proceeds no later than the date ten
(10) Business Days following receipt. Such a prepayment shall not qualify as a
Permitted Revolver Prepayment so shall be subject to the concurrent payment of
the Make-Whole Premium.
(3)
Borrower shall prepay the Revolving Loans with any
Loss Proceeds no later than the date ten (10)
Business Days following receipt; provided that Borrower may request and Lender may approve, in its sole discretion, the application of some or
all of such Loss Proceeds
to replacing the damaged
or condemned Collateral. Such a prepayment
shall qualify as a Permitted Revolver Prepayment.
(4)
If any Permit Event occurs and is continuing,
Borrower shall prepay outstanding Revolving Loans with respect to the applicable Approved
Project within ten (10) Business Days of the occurrence
of such event. Such a prepayment shall qualify as a Permitted Revolver
Prepayment.
(5)
For the avoidance of doubt, any prepayment or
repayment of any Revolving Loans upon the occurrence of an Event of Default and
the exercise of remedies by Lender shall not qualify
as a Permitted Revolver Prepayment so shall be subject to the concurrent payment of the
Make-Whole Premium.
(b)
The Term Loans.
(i)
Term Loan
Commitment. Subject
to the terms and
conditions
contained in this Agreement,
including the satisfaction of the conditions precedent set forth in Section 3.3 and the
approval of Lender as set forth in Section 2.1(b)(ii) or (iii) below, as applicable,
Xxxxxx agrees to make term loans (the "Term Loans") to Borrower on any Business
Day during the Availability Period, which, in the aggregate, shall not exceed
the Term Loan Commitment. Term Loans
shall be denominated in Dollars.
(ii)
Conversion Option. With respect to any Approved Project
approved by Lender under Section 2.1(a)(i)
which has completed construction, prior to the Revolving Loan Maturity Date, Borrower may elect to convert the Revolving Loans in respect
of such Approved Project into Term Loans ("Conversion Option")
provided it meets the Project Debt Service Coverage Ratio and other
requirements for Approved Projects. Such Conversion Option shall be executed,
and the corresponding Term Loan drawn, in accordance with the procedures set
forth in Section 2.1(b)(iv) below.
(iii)
Approval of Projects. In order to draw a Term Loan which
is not subject to the Conversion Option,
Borrower shall have (i) submitted to Lender a Project Approval Package with
respect to such Project in the form of Exhibit A: Project Approval Package
at least twenty (20) Business Days prior to the requested Drawdown Date, and
(ii) received an approval from Lender for such Project in the form of Exhibit
B: Lender Approval Form indicating that such
Project qualifies as an Approved Project.
Lender shall maintain
a list of Approved Projects in the form of Schedule 1: List of Approved
Projects. Each document attached to the Project Approval
Package shall be in form and substance acceptable to Lender. Lender shall be entitled to request change to the
Project Approval Package in which
case Borrower may elect to adopt such changes and re-submit the Project
Approval Package for approval by Lender
in accordance with the foregoing.
(iv)
Procedures for Term Loans:
(1)
With respect
to any Term Loan made available to
Borrower pursuant to Section 2.1(b)(ii),
subject to fulfillment of the applicable conditions set forth in Section 3.3,
Lender will, on the applicable Drawdown Date, make the requested Term Loan by
crediting the amount thereof against the principal amount of the outstanding
Revolving Loans for such Approved Project. In
the event the applicable conditions precedent in Section 3.3 have not been satisfied, Lender may elect,
in its sole discretion, to waive any or all such conditions precedent and advance a Term Loan. Lender shall provide Borrower
with notice of any approved Conversion Option at least three (3) Business Days in advance.
Borrower may request
that
Lender convert
one or more Revolving Loans by notice
delivered at least three (3) Business Days in
advance of the proposed conversion date but such determination shall be made by Lender
in its sole discretion.
(2)
With respect
to any Term Loan drawn under Section
2.1(b)(ii), for each Project which qualifies
as an Approved Project in accordance therewith, Borrower shall be entitled to
draw a Term Loan in the maximum aggregate amount of the applicable Project
Commitment subject to the satisfaction of the conditions precedent set forth in
Section 3.3. Requests for such Term Loans may be made only once per Business
Day, and shall be made on written notice, given by Borrower to Lender at least five (5) Business Days prior to the proposed
Drawdown Date. Each such notice
(which notice shall
be irrevocable and binding on Borrower) of a proposed borrowing shall be substantially in the form of Exhibit
C: Form Notice of Borrowing,
specifying the proposed Drawdown Date and the amount to be borrowed. Subject to
the fulfillment of the applicable conditions precedent set forth in Section
3.3, Xxxxxx will, on the Drawdown Date, make the requested Term Loans in immediately available funds by crediting the amount thereof to the
Borrower Account.
(v)
Interest Rate. Subject to the provisions of Section 2.1(d),
during the period from the date advanced through and including the date of payment
in full, each Term Loan shall bear interest on the outstanding principal
amount thereof at a rate per annum equal to thirteen percent (13%).
(vi)
Term Loan Note. The Term Loans shall be evidenced
by,
and repaid with interest in accordance with,
the Term Loan Note. Borrower hereby authorizes Lender to record on the Term Loan Note or
in its internal computerized records
(i) the amount of each Term
Loan made hereunder, and (ii) the amount of any principal or interest received
by Xxxxxx on account of the Term
Loans; provided, however, that the failure of Lender
to make any such recordation
or any error therein shall not in any manner limit or otherwise affect the
obligations of Borrower under this Agreement or the Term Loan Note, including
without limitation, Xxxxxxxx's obligation to repay Term Loans in accordance
with their terms. Upon request by Xxxxxxxx, Xxxxxx will issue a Loan Statement
to Borrower reflecting all outstanding
principal and interest.
(vii)
Use of Proceeds.
(1)
The proceeds
of any Term Loan under Section
2.1(b)(ii) shall
be used to repay the Revolving Loans.
(2)
The proceeds
of any Term Loan under Section
2.1(b)(iii) shall be used to finance Borrower's purchase of or repayment of any construction loans associated with the
Approved Project identified in the
Notice of Borrowing for such Term Loan.
(viii)
Repayment. Principal and interest payments
on the Term
Loan shall be made according to the below:
(1)
Interest on the Term Loan shall
be payable quarterly
in advance
beginning on the first Business
Day of the quarter beginning with the first full calendar
quarter following the advancement of the Term Loan and each and every quarter
thereafter, without notice or demand, so long as such Loan remains
outstanding.
(2)
In addition, interest accrued on the Term Loan shall
be payable, without duplication: (i) on the
Term Loan Maturity Date and (ii) on the date of any payment or prepayment, in
whole or in part, of principal outstanding on the Term Loan, on the principal amount so paid or prepaid.
Interest accrued on any Loans or other
monetary Obligations after the
date such amount is due and payable (whether on the applicable maturity date,
upon acceleration or otherwise) shall be payable upon demand.
(3)
The principal amount of each Term Loan shall be
payable quarterly in advance beginning
on the first Business Day of the quarter beginning with the first full calendar quarter
following the advancement of the Term Loan and each and every quarter thereafter, without notice or
demand, so long as such Loans remain outstanding in accordance with
amortization schedule set forth in Schedule 2.
forth below:
(ix)
Prepayment. Borrower may prepay the Term Loan as set
(1)
Borrower may make a voluntary prepayment, in
whole or in part, of the then-outstanding principal amount of the Term Loans; provided, that such voluntary prepayments shall
require the contemporaneous payment to Lender as to each Term Loan of (A) the Make-Whole Premium
if such prepayment occurs on or before
the 5th anniversary of the applicable date of
conversion of such Loan, and (B) a fee in the amount of one percent (1%) of the
amount prepaid if such prepayment occurs after the 5th
anniversary of the applicable date of conversion of such
Loan. All such voluntary prepayments shall require at least three (3) Business
Days' prior written notice to Lender.
(2)
Upon receipt,
Borrower shall prepay the Term
Loans with any Sale Proceeds no later than the date ten
(10) Business Days following receipt. Such prepayment shall be subject to the prepayment clause 2.1 (b) (ix) 2 above.
(3)
Upon receipt,
Borrower shall prepay the Term
Loans with any Loss Proceeds no later than
the date ten (10) Business Days following receipt; provided that Borrower may
request and Lender may approve, in its sole discretion, the application of some
or all of such Loss Proceeds to replacing the damaged or condemned Collateral.
(4)
For the avoidance of doubt, any prepayment or
repayment of any Term Loans upon the
occurrence of an Event of Default and the exercise of remedies by Lender shall
be subject to the concurrent payment of the
Make-Whole Premium or one percent
(1%) of the amount prepaid, as
applicable, in accordance with the above.
(c) Payments
for all Loans.
Method of Payment, Payment
Date Adjustments, Application of
(i)
Method of Payment. Borrower shall make each payment
due under this Agreement, any Note and the other Loan Documents to
Lender at Lender's Bank Account,
when due, in Dollars in immediately available funds, without setoff, defense or
counterclaim and free and clear of, and without any deduction or withholding
for, any taxes as contemplated in Section 2.2.
(ii)
Payment Date Adjustments. Whenever any payment of
principal
or interest on any Loan shall be due on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest and fees thereon shall be payable
for such extended time.
(iii)
Application of Payments. All payments
by or on behalf of
Borrower under this Agreement, any Note or
any of the other Loan Documents shall be
applied first to the payment of all fees, expenses and other amounts due to
Lender (excluding principal and interest), then to accrued interest, and then
to the balance on account of outstanding principal; provided, however, that
after the occurrence of an Event of Default, payments will be applied to the Obligations in such
manner and order of priority as Lender determines in its sole discretion.
(d)
Computation of Interest and Fees, Interest
Rate Changes. All
computations of interest for Loans shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year).
(e)
Late Payment. If Borrower
shall default in the payment
of any
principal
of or interest on any Term Loan or
any related interests or fees,
by acceleration or otherwise, until such defaulted amount shall
have been paid in full, to the extent permitted by law, the Term Loans shall bear
interest at the Default Rate.
Section 2.2 Payments Free of Taxes and Other
Deductions.
(a)
Any and all payments
by Borrower hereunder and under any of the
other Loan Documents shall be made without
setoff or counterclaim and free and clear of and without deduction for any and
all current and future taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans,
restrictions or conditions of any
nature, and all liabilities with respect thereto,
excluding, in the case of Lender, taxes that are imposed on its overall net income by
the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state under the Laws of
which Lender is organized or of its
applicable lending office or any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments hereunder or any of the
other Loan Documents being hereinafter referred to as "Taxes"). If Borrower is
be required by Law to deduct any Taxes from or in respect
of any sum payable hereunder
or under any of the other Loan Documents,
(a)
the
sum payable by Borrower shall be increased as may be necessary so that after
Borrower has made all of the required deductions (including deductions
applicable to additional sums payable
under this Section
2.2) Lender receives
an amount equal
to the sum
it would have received had no such deductions been made; (b) Borrower shall make all such
deductions; and (c) Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance
with applicable Law. In
addition, Borrower shall pay any present or future stamp, documentary, excise, property, or similar taxes,
charges or levies that arise
from any payment made hereunder or
under any other Loan Document or
from the execution, delivery, or registration of, performance under, or as
otherwise with respect to, this Agreement or any of the other Loan Documents
(hereunder referred to as "Other Taxes"). Borrower will deliver promptly to Lender
certificates or other valid vouchers for all
Taxes, Other Taxes or other charges deducted from or paid with respect to payments made Borrower
hereunder or under such other Loan Documents.
(b)
Borrower will indemnify Lender for the full amount of Taxes and
Other Taxes, and for the full amount of taxes
of any kind imposed by any jurisdiction on amounts payable under this Section
2.2, imposed on or paid by Xxxxxx and any liability (including penalties,
interest and expenses (including reasonable attorneys' fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally asserted by the relevant Governmental Authority. Payment
to Lender under this indemnification shall be made within thirty (30) days of
written demand from Lender.
(c)
Notwithstanding anything
contained herein to the contrary,
Xxxxxx
represents
and warrants that as
of the date of this Agreement
it is not subject to withholding
requirements under the Foreign Account Tax Compliance Act or Section 871(m) of
the Code. If at any time Lender is not established or existing as a domestic
entity of the United
States of America or any political subdivision thereof (or any State thereof)
and exempt from withholdings as aforesaid, Lender shall promptly furnish to
Borrower any completed and executed
forms required under the Code which are required to be filed or confirm or
otherwise provide sufficient evidence that Lender is exempt from withholding or deduction from
any payment required to be made by Borrower hereunder, under the Notes or any
other Loan Documents.
(d)
Obligations Absolute. The Obligations under this Agreement,
the
Notes and the other Loan Documents shall (a) be absolute, unconditional and irrevocable,
(b)
be
paid strictly in accordance with the terms of this Agreement and such other
Loan Document under all circumstances,
and (c) not be affected, modified, released, discharged or impaired, in whole
or in part under any circumstances, irrespective of, and Borrower hereby
irrevocably waives, to the maximum extent permitted by law, any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(i)
any lack of validity
or enforceability of all or any portion
of
this Agreement, any of the other Loan Documents or any
other agreement or any
instrument relating hereto;
(ii)
the failure
to give notice to Borrower
(except as otherwise
specifically provided
herein) of the occurrence of a Default
or an Event of Default;
(iii)
any change
in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations;
(iv)
the existence of any claim,
setoff, defense or other right that
Borrower may have (other
than prior payment
in full in cash);
(v)
any modification, amendment, rescission, or waiver of, or
consent to departure from, any of the Loan Documents or all or any of the Obligations (except to the extent any such
Loan Document or Obligation is so modified or amended);
(vi)
any exchange,
release or non-perfection of any collateral
security, or any release of any party
primarily or secondarily liable on any of the Obligations,
or any amendment or waiver of or consent to departure from any guarantee of all
or any of the Obligations; or
(vii)
the dissolution or full or partial discharge
of Borrower in
bankruptcy or similar proceeding or otherwise.
Section 2.3
the Loans are:
Fees. The only fees that will be charged by Lender or paid by Borrower for
(a)
With respect
to the Revolving Loan Commitment, Borrower shall
pay to
Lender an origination fee in an amount of $50,000 (the "Loan Fee") due and payable
on the Closing Date. The Loan Fee shall be deemed fully earned on the date paid
and is nonrefundable for any reason whatsoever.
(b)
For each Revolving Loan, Borrower shall pay an administration fee
equal to
1% of the applicable Loan Amount (the "Administrative Fee") due and payable
on the applicable Drawdown
Date. The Administrative Fee shall be deemed fully earned on the
date paid and is nonrefundable for any reason whatsoever.
(c)
Section 2.4 Acknowledgement. The Loan Parties have participated
jointly in the negotiation and drafting of this Agreement and the other Loan Documents. The Borrower expressly acknowledges
that it has had the opportunity to
retain and consult with counsel of its choice admitted under the laws of
the State of New York and that it has elected not to retain such counsel in
connection with the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises,
this Agreement and the other Loan Documents shall be
construed as if drafted jointly by the parties, and no presumption or burden
of proof shall arise
favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or any other Loan Document, the
relative bargaining power of the parties or the Borrower's failure to retain
counsel admitted under the laws of the State of New York.
Article
IIIARTICLE III CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Effectiveness. The Revolving Loan Commitment
and the Term
Loan Commitment shall not be
effective until, and Lender shall not
be required to fund any Loan until, the date that each of the following
conditions has been satisfied as determined by Lender in its sole discretion
(unless waived by Xxxxxx in its sole discretion) ("Closing Date"):
(a)
This Agreement, the Revolving Loan Note, the Term Loan Note
and each Security
Document contemplated in Schedule
7.1 as of the Closing
Date and each other Loan Document to which any Loan
is a party shall be executed by the Loan Parties and delivered to Lender.
(b)
Lender shall have received
each of the following, in form and
substance satisfactory to Lender and its counsel:
(i)
a certificate, dated as of the date of this Agreement, of a
Responsible Officer of each Loan Party certifying (A) that attached copies of
such certificate of formation and limited liability company agreement are true
and complete, and in full force and effect, without amendment except as shown, (B) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents by such each Loan Party is true and complete, and that such resolutions are in full force and effect, were
duly adopted, have not been amended, modified or revoked, and constitute all
resolutions adopted with respect to this Agreement and the other Loan
Documents, and (C) to the title, name and signature of each Person authorized to sign such Loan Documents;
(ii)
a certificate executed by a duly authorized
knowledgeable
Responsible
Officer of Borrower certifying that (A) no Default or Event of Default exists;
(B) the representations and
warranties set forth in Article IV are true and correct in all material
respects (or, to the extent any such representation or warranty is subject to a
materiality qualifier or Material Adverse Effect standard, such representation
or warranty is true and correct in all respects); and (C) each Loan Party has complied
with all agreements and conditions to be satisfied by it under the Loan Documents
as of the Closing Date;
(iii)
Certificates of Good Standing
or Legal Existence, as the
case may be, issued by the Secretary of State
of the states of organization and qualification of each Loan Party, evidencing that each Loan Party is a limited
liability company legally
existing in the state of its organization and in each state where it is qualified to do
business or its equivalent for any Loan Party organized
outside the United State, in form and substance acceptable to Lender;
(iv)
Each document
(including any UCC financing statement)
required by the Security Documents or under
law or reasonably requested by Xxxxxx to be filed, registered or recorded
in order to create in favor of Lender a perfected Lien on the Collateral
described therein, prior and superior in right to any other
Person (subject only to Permitted Liens that, pursuant to applicable law,
are entitled to a higher priority than the Lien of Lender in such Collateral)
shall be in proper form for filing, registration or recordation;
(v)
Lender shall have received
the original executed
limited
liability
company membership interest
certificates representing one hundred percent
(100%) of the limited liability company membership
interests in the Pledged Entities pledged pursuant to Security Documents, together with an undated
transfer power for each such membership interest certificate executed
in blank;
(vi)
Lender shall have received evidence that all filing,
recordation, subscription and inscription
fees and all recording and other similar fees, and all recording, stamp and
other Taxes and other expenses related to such filings, registrations and
recordings necessary for and related
to the transactions contemplated by this
Agreement and the other Loan Document to be consummated on the Closing Date (to
the extent the obligation to make such payment then exists) are to be paid in
full by or on behalf of Borrower
on the Closing Date;
(vii)
Lender shall have received (A) results of
searches of UCC
filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each
jurisdiction where a filing would need to be made in order to perfect the
security interest of Lender in the Collateral and (B) results of tax lien,
judgment and bankruptcy searches for each Loan Party in such jurisdictions and,
in each case, such results shall reveal no Liens other than Permitted Liens or
shall otherwise be satisfactory to Lender in its sole discretion (or the
equivalent searches in each case if the jurisdiction of incorporation or
formation is outside the U.S.).
(viii)
copies of all instruments and agreements governing,
evidencing
and/or securing any and all Senior Debt and a written consent
by the Senior Lender to the execution and performance by the
Loan Parties of the Loan Documents executed by the Senior Lender and otherwise
in form and substance acceptable to
Xxxxxx;
(c)
All expenses
incurred by Lender
prior to the Closing Date shall
have been paid by Xxxxxxxx.
(d)
No Material
Adverse Effect has occurred and is continuing, and no
event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(e)
Borrower shall have paid the Loan Fee.
(f)
Lender shall have completed
its customary business,
financial and
legal due diligence of Xxxxxxxx and the
Approved Projects and the transactions contemplated hereunder and the results of such due diligence shall
be satisfactory to Lender
in all respects.
(g)
Xxxxxx shall
have received a legal opinion
from a local counsel
acceptable to Lender, in form and substance acceptable to Lender.
(h)
Lender shall
have received the most recent
unaudited annual
financial statements (or audited if available) of the Loan Parties, all in reasonable detail and
accompanied by an unqualified report thereon
by a certified public accountant reasonably acceptable to Lender which shall
state that such financial statements present fairly the financial condition as
of the end of such Fiscal Year and the results of operations and changes in financial position for such Fiscal
Year of Borrower in accordance with GAAP.
Section 3.2 Conditions
Precedent to Revolving Loans. Following the Closing Date, any
obligation of Lender to make any Revolving
Loan shall be subject to the satisfaction of each of the following conditions
precedent as determined by Xxxxxx in its sole discretion (unless
waived by Xxxxxx in its sole discretion):
(a)
(i) in connection with the first Revolving Loan Disbursement
contemplated in Section 2.1(a)(iii) for any
Approved Project, Lender shall have received evidence that the applicable Approved
Project is ready to commence construction and issue a notice to proceed or its
equivalent pursuant to the applicable EPC Contract for such Approved Project in
form and substance acceptable to Lender, and (ii) in connection with the last Revolving Loan Disbursement contemplated in Section 2.1(a)(iii) for any Approved Project, Lender shall have received evidence that the
applicable Approved Project is ready to complete construction and issue or approve a notice of final completion or its equivalent
pursuant to the applicable EPC Contract for such Approved Project in form and substance acceptable to Lender.
(b)
The following
statements shall be true
and each of (x) the delivery
by Borrower
of the applicable Notice of Borrowing and (y) the acceptance by Borrower of the proceeds of such
Revolving Loan shall constitute a representation and warranty by Borrower that,
on the date of such notice and on the date of such borrowing, as the case may
be, each such statement is true:
(i)
Neither Lender
nor Borrower shall have terminated the
Revolving Loan Commitment, nor shall a Default or an Event of Default
exist or have occurred, or would exist or occur as a result of such Loan;
(ii)
No Material
Adverse Effect shall have occurred
and be
continuing and no event or circumstance exists that could
reasonably be expected to result in a Material Adverse Effect; and
(iii)
The representations and warranties of the Loan Parties in
the Loan Documents shall be true and correct
in all material respects (or, to the extent any such representations or warranties are
subject to a materiality qualifier or Material Adverse Effect standard, such
representations or warranties are true and correct in all respects) on the date
of, and upon giving effect to, such Loan (except for representations and
warranties that expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects
(or, to the extent any such representations or warranties are subject
to a materiality qualifier or
Material Adverse Effect standard,
such representations or warranties
are true and correct in all respects) as of such earlier date).
(c)
All conditions required to be satisfied in accordance with Section
2.1(a) shall have been satisfied, including, but not limited
to, (i) Xxxxxx's
receipt of the
applicable Notice of Borrowing, (ii) confirmation (in the form
of a Lender Approval Form)
that the Project in connection with which such Notice of Borrowing is submitted qualifies as an Approved Project
pursuant to Section 2.1(a)(viii),
(iii) Lender has, in its sole discretion,
approved the Increase Option to the extent required to advance any Loans, and
(iv) execution and delivery of such further documents, instruments,
agreements and assurances as required in accordance with Section 2.1(a).
(d)
Lender shall have received the
construction budget and
schedule
for
each Approved Project in form and substance acceptable to Lender (including the budgeted amount
of any developer fee payable to Borrower or any Affiliate of Borrower)
("Construction Budget").
(e)
For each final Revolving Loan Disbursement for an Approved
Project advancing the remainder of the applicable Project Commitment, Lender
shall have received evidence that (i)
the Additional Investors and/or Borrower have made the equity contribution in
the amount of at least the remainder of the expected acquisition, development
or construction costs set forth in the applicable Construction Budget not paid
previously plus any cost
overruns which may have been incurred or are reasonably expected to be incurred, and (ii) such contribution is either on deposit in the Borrower
Account as of the Closing
Date or has been used to pay acquisition, development or construction costs for an Approved Project in accordance
with the applicable Construction Budget, reasonable evidence of which has been
provided to Lender; provided that, upon a written request by Xxxxxxxx, Lender
may elect, in its sole discretion,
to waive the foregoing requirement and size the final Revolving Loan Disbursement
for an Approved Project in an amount equal to the
remainder of the expected acquisition, development or construction costs set forth in the applicable Construction Budget
not paid previously plus any cost overruns which may have been incurred or are reasonably
expected to be incurred (such resizing referred to as an "Overrun Event");
(f)
(i) each additional Security
Document contemplated in Schedule
7.1 shall be executed by the applicable Loan
Parties and delivered to Lender, (ii) Lender shall be granted or continue to
have a perfected security interest in all right, title, and interest of the Loan Parties,
in and to the Collateral free of all other Liens
thereon other than Permitted Liens and (iii) all
authorizations, consents, approvals, licenses, leases, rulings, permits,
certifications, exemptions, submissions to or filings for registration by or
with any Governmental Authority that
are necessary in order to establish, protect, preserve and perfect Lender's
Lien on the Collateral shall
have been duly made or taken and remain in full
force and effect, including those set forth in Schedule 7.1.
(g)
All amounts
required to be paid to or deposited
with Lender
hereunder or under any other Loan Document,
and all taxes, fees payable
hereunder, other fees and other costs payable in connection with the execution,
delivery, recordation and filing of the documents and instruments required to
be filed as a condition precedent pursuant to Section 3.1 and this Section 3.2,
as applicable, shall have been paid
in full (or shall be paid concurrently with the advance of the applicable Loan).
(h)
Lender shall have received a certificate duly executed and delivered
by the principal
financial officer or other authorized officer of Borrower
with responsibility for
financial matters, certifying that Borrower and each other Loan Party, is and,
immediately after giving
effect to the consummation of the transactions contemplated by the Loan Documents will be, Solvent, in form and substance satisfactory to Lender.
(i)
There shall be no actions, suits, or legal or arbitration proceedings
pending to
which a Loan Party is a party
(and, to the knowledge of Borrower,
there shall be no actions, suits or
legal or arbitration proceedings threatened against a Loan Party),
in any such case at law or in equity
before any governmental person or arbitral body against or affecting a Loan
Party, which actions, suits, or legal or
arbitration proceedings in any such
case could reasonably be expected to
have a Material Adverse Effect on the ability of each Loan Party to perform its obligations under the Loan
Documents and related documents or to consummate the transactions
contemplated thereby.
(j)
Borrower shall have paid the Administrative Fee.
Section 3.3 Conditions Precedent to the Term Loans. Following
the Closing Date, any
obligation of Lender to make any Term Loan
shall be subject to the satisfaction of each of the following conditions
precedent as determined by Xxxxxx in
its sole discretion (unless waived by Xxxxxx in its sole discretion):
(a)
(i) Lender
shall have received
evidence that the applicable
Approved Project has completed construction
and has issued or approved a notice of final completion or its equivalent
pursuant to the applicable EPC Contract for such Approved Project in form and
substance acceptable to Lender;
(b)
The following
statements shall be true
and each of (x) the delivery
by Borrower
of the applicable Notice of Borrowing and (y) the acceptance by Borrower of the proceeds of such Term Loan shall constitute a representation and warranty by Borrower
that, on the date of such notice and on the date of such borrowing, as the case may be,
each such statement is true:
(i)
Neither Lender
nor Borrower shall have terminated the
Term Loan Commitment, nor shall a Default or an Event of Default exist or have
occurred, or would exist or occur as
a result of such Loan;
(ii)
No Material
Adverse Effect shall have occurred
and be
continuing and no event or circumstance exists that could
reasonably be expected to result in a Material Adverse Effect; and
(iii)
The representations and warranties of the Loan Parties in
the Loan Documents shall be true and correct
in all material respects (or, to the extent any such representations or warranties are
subject to a materiality qualifier or Material Adverse Effect standard, such
representations or warranties are true and correct in all respects) on the date
of, and upon giving effect to, such Loan (except for representations and
warranties that expressly relate to an earlier date, in which
case such representations and warranties shall be true and
correct in
all material respects
(or, to the extent any such representations or warranties are subject
to a materiality qualifier or
Material Adverse Effect standard,
such representations or warranties
are true and correct in all respects) as of such earlier date).
(c)
All conditions required to be satisfied in accordance with Section
2.1(b) shall have been satisfied, including,
but not limited to, (i) Lender's receipt of the applicable Notice of Borrowing, (ii) confirmation (in the
form of a Lender Approval Form) that the Project in connection with which such Notice of Borrowing is submitted qualifies as an Approved Project pursuant to Section 2.1(b)(iii), and (iii) execution and delivery of such
further documents, instruments, agreements and assurances as required in
accordance with Section 2.1(b).
(d)
Lender shall
have received an operating budget
for the Loan Parties
and for such Approved Project
in form and substance acceptable to Lender ("Operating Budget").
(e)
(i) Each additional Security
Document contemplated in Schedule
7.1 shall be executed by the applicable Loan
Parties and delivered to Lender, (ii) Lender shall be granted or continue to
have a perfected security interest in all right, title, and interest of the Loan Parties,
in and to the Collateral free of all other Liens
thereon other than Permitted Liens and (iii) all
authorizations, consents, approvals, licenses, leases, rulings, permits,
certifications, exemptions, submissions to or filings for registration by or
with any Governmental Authority that
are necessary in order to establish, protect, preserve and perfect Lender's
Lien on the Collateral shall
have been duly made or taken and remain in full
force and effect, including those contemplated in Schedule 7.1.
(f)
All amounts
required to be paid to or deposited
with Lender
hereunder or under any other Loan Document,
and all taxes, fees payable
hereunder, other fees and other costs payable in connection with the execution,
delivery, recordation and filing of the documents and instruments required to
be filed as a condition precedent pursuant to Section 3.1 and this Section 3.2,
as applicable, shall have been paid
in full (or shall be paid concurrently with the advance of the applicable Loan).
(g)
Lender shall have received a certificate duly executed and delivered
by the principal
financial officer or other authorized officer of Borrower
with responsibility for
financial matters, certifying that Borrower and each other Loan Party, is and,
immediately after giving
effect to the consummation of the transactions contemplated by the Loan Documents will be, Solvent, in form and substance satisfactory to Lender.
(h)
There shall be no actions, suits, or legal or arbitration proceedings
pending to
which a Loan Party is a party (and,
to the knowledge of Borrower,
there shall be no actions, suits or
legal or arbitration proceedings threatened against a Loan Party),
in any such case at law or in equity
before any governmental person or arbitral body against or affecting a Loan
Party, which actions, suits, or legal or
arbitration proceedings in any such
case could reasonably be expected to have a Material Adverse Effect on the ability
of each
Loan Party to
perform its obligations under the
Loan Documents and related documents or to consummate the transactions
contemplated thereby.
(i)
After giving effect to the
making of any Term Loan to be made on
such Drawdown Date, the Project Debt Service Coverage
Ratio is equal to, or greater than 1.20:1.00.
Section 3.4 Limited Waiver
of Conditions Precedent. If Lender funds any Loan or
grants any other accommodation when any
conditions precedent are not satisfied (regardless of whether the lack of
satisfaction was known or unknown at the time), it shall not operate as a
waiver of (a) the right of Lender to insist upon satisfaction of all conditions
precedent with respect to any subsequent funding, issuance, creation or grant;
or (b) any Default or Event of Default due to such failure of conditions or
otherwise.
Article
IVARTICLE IV REPRESENTATIONS AND WARRANTIES
In order to induce Xxxxxx
to enter into this Agreement and the other Loan Documents and to advance Loans hereunder, Xxxxxxxx
makes the following representations and warranties to Lender, which shall be deemed made by Borrower
as of the date of this Agreement and as of each Drawdown Date (except to the extent
such representation or warranty relates
to a specified date, in which case such
representation or warranty shall be
true and correct as of such date), and shall survive the execution and delivery hereof and each
performance hereunder. Any knowledge acquired by Xxxxxx shall not diminish
Lender's rights to rely upon such representations and warranties.
Section 4.1 Formation, Good Standing, and Due Qualification. Borrower (a) is a
limited liability company duly organized and validly existing under the laws of the jurisdiction of its formation; (b) has all requisite power and authority necessary to own its
properties and assets and to carry on the business
in which it is now engaged
or proposed to be engaged; and (c) is duly
qualified and in good standing as a foreign corporation, foreign limited
liability or foreign partnership, as applicable, under the laws of each other jurisdiction in which such qualification is required, except where the failure to
so qualify could not reasonably be expected to result in a Material Adverse
Effect.
Section 4.2 Corporate Power and Authority. The execution, delivery
and performance
by each Loan Party of the Loan Documents and Material Project
Documents to which it is a
party, and the borrowings, guaranties and undertakings contemplated hereunder
and thereunder, are within the company powers and authority of the applicable
Loan Party and have been duly authorized by all necessary
action, and do not and will not (a) violate
the certificate of incorporation, articles or organization or operating agreement of the applicable Loan Party, or any
Law, or (b) be in conflict with,
result in a breach of or
constitute a default under any indenture or loan
or credit agreement
or any other material agreement, lease, or instrument to which the applicable Loan Party is
a party or by which the applicable
Loan Party may be bound or
affected, including, but not limited to, the Senior Debt, and (c) result in the creation or imposition of any
Lien (except in
favor of Lender) upon or
with respect to any property or assets now owned or hereafter acquired by the applicable Loan Party,
except as contemplated by this
Agreement.
Section 4.3 Legally Enforceable Agreement. This Agreement is, and each of the other
Loan Documents and the Material Project
Documents to which a Loan Party is a party when executed and delivered will be, legal, valid, and binding obligations of the
applicable Loan Party that is a party thereto, enforceable
in accordance with its terms, except to the extent that enforcement thereof may
be limited by the effect of general principles of equity and bankruptcy and
similar laws affecting the rights and remedies of creditors generally.
Section 4.4 Governmental Approvals. No action, consent or approval
of, registration
or filing with or any other action by any Governmental Authority
is required in connection with the transactions contemplated by this Agreement and the other Loan Documents, except for such as have been made or obtained and are
in full force and effect.
Section 4.5 Indebtedness.
(a)
Upon consummation of the transactions contemplated herein, the
Loan Parties will not have any outstanding
Debt other than the Obligations, trade debt incurred in the ordinary
course of its business, the Senior Debt in
the case of Borrower, and any
debt arising pursuant to the Material
Project Documents to which it is a party.
(b)
Neither this Agreement, the other Loan Documents nor any written
information, exhibit, report, document, or
certificate furnished to Lender by or on behalf of any Loan Party in connection with this
Agreement, including any and all Project Approval Packages and annexes
thereto delivered by Borrower pursuant to Section 2.1(a)(i), contained or
contains any material misstatement of fact or omitted or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading. There is no fact known by Borrower that materially adversely
affects or that, insofar as Borrower can now reasonably foresee, may materially
adversely affect, the condition, financial or
otherwise, operations, properties, or prospects of any Loan Party, or the ability of any Loan Party to carry
out its obligations under any of the Loan
Documents to which it is a
party.
Section 4.6 Other
Agreements, No Default. No Loan Party is in default
in any manner
under any provision of any indenture or other
agreement or instrument evidencing Debt, or any material term of any other material
agreement or instrument to which it is a party or by which it or any of its properties or assets are or
may be bound, including, but not limited to, any Material Project Document, or is in violation
of any Law, where such default or violation could reasonably
be expected to result in a Material Adverse Effect. To Borrower's Knowledge, no
Key Project Participant is in default under any material term of any such Material Project Document, in each case, which could reasonably be expected
to result in a Material
Adverse Effect. Each Loan Party enjoys peaceful and undisturbed possession under all leases to which it
is a party.
Section 4.7 Litigation. There is no pending or, to the Knowledge of Borrower,
threatened action, suit or proceeding before any court, Governmental Authority, board of arbitration, or arbitrator against
any Loan Party for which any of its properties
or assets are or
may otherwise become involved, which is not
otherwise fully covered by insurance and may, in any one case or in the aggregate, reasonably be expected to have a Material Adverse
Effect, nor is there any basis therefor. No Loan
Party has received any summons, citation, directive, letter, or other
communication from any Governmental Authority concerning any intentional or
unintentional violation or alleged
violation of any Environmental Laws.
Section 4.8 Ownership and Liens. Each Loan Party
has good and marketable title to, or
valid leasehold interests in, all of its properties and assets, including all of the assets and properties
(tangible or intangible) constituting any part of such Approved
Projects, and none of its properties
or assets is subject to any security interest or other Lien, except Permitted
Liens and Liens in favor of Lender.
Section 4.9 Capital Structure. Schedule 4.9 shows, for Borrower,
and each Subsidiary
of Borrower, its name and the name of each
Subsidiary, if any, of such Person, its and each Subsidiary's jurisdiction of
organization, its and each Subsidiary's authorized and issued Equity Interests,
the holders of its Equity Interests, and all agreements binding on such holders
with respect to their Equity Interests.
Each of Borrower and the Portfolio Companies has good title to
its Equity Interests in its respective
Subsidiaries, if any, subject only to Liens
in favor of Lender, Senior Debt and other Permitted
Liens, and all such Equity Interests are duly issued, fully paid and
non-assessable. There are no outstanding options to purchase, warrants,
subscription rights, agreements to
issue or sell, convertible interests, phantom rights or powers of attorney relating
to any Equity Interests of any Loan Party except as shown on Schedule
4.9.
Section 4.10
Approved Project:
Permits. As of the Drawdown
Date of each Revolving Loan for any
(a)
each Applicable Permit relating to such Approved
Project that is
necessary to
be obtained as of such date is either (x) in full force and effect and, if an appeal
period is specified by Law, the
appeal period has expired and no
judicial, administrative or other
proceedings are pending or, to Borrower's Knowledge, threatened that may allow
material modification or revocation; or (y) of a type that is routinely granted
on application, that is
ministerial in nature,
(b)
Borrower has no reason to believe
that any material
Permit
described in clause (y) above will not
be obtained without substantial difficulty, expense
or delay before it becomes an Applicable Permit.
(c)
No Loan Party is in material
violation of any such Applicable
Permit and no such Applicable Permit is
subject to any material restriction, condition, limitation or suspension, and
no such Applicable Permit contains any terms or conditions that provide for
material curtailment or other
material operational restrictions with respect to such
Approved Project.
(d)
The Loan
Parties possesses all material franchise, patents,
copyrights, trademarks
and trade names, or rights thereto necessary to
perform its duties as of such date under the Material
Project Documents relating
to such Approved
Project to
which it is a
party, and such Loan Parties are not in material violation
of any valid rights of other parties with respect to any of
the foregoing.
Section 4.11 Taxes. Each Loan Party has filed all tax returns (federal,
state, local and
foreign) required to be filed and has paid
all taxes, assessments, and governmental charges and levies (including penalties and interest)
shown thereon to be due, including interest
and penalties, except taxes
that are being contested in good faith by appropriate
proceedings and for which the
applicable Loan Party shall have set aside on its books adequate reserves in
accordance with GAAP.
Section 4.12 Debt and Liens Securing
Same. Set forth on Schedule
4.12 hereto is a
complete and correct list of all Debt
of Borrower and each Loan Party other than the Obligations and
trade debt incurred in the ordinary course of its business. The maximum
principal or face amounts of the obligations set forth, which are outstanding,
and which can be outstanding, are correctly stated, and all Liens of
any nature given or agreed to
be given as security therefore are
correctly described or indicated in Schedule 4.12.
Section 4.13 Federal Reserve
Regulations. No Loan Party is engaged
principally, or as
one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin
Stock. No part of the proceeds of any Loan have been or will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately,
for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board
of Governors of the Federal Reserve System of the United States of
America (the "Board"), including without limitation, Regulation T, Regulation U
or Regulation X. Borrower will not take, or permit any agent acting on its
behalf to take, any action which might cause any transaction or obligation, or
right created by this Agreement, or any document or instrument delivered
pursuant hereto, to violate any Regulation of the Board.
Section 4.14 Fiscal Year.
The Fiscal Year of each Loan Party for financial
accounting
purposes ends on December
31 of each calendar year.
Section 4.15 No Broker's
Fees. No Loan Party is obligated to pay any brokerage
commissions, finder's fees or appraisal
fees (other than reimbursing Lender for such fees incurred by Xxxxxx) in connection with the transactions contemplated by this Agreement.
Section 4.16 Investment Company Act, Public
Utility Holding Company
Act. No Loan
Party is a "holding company", or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company", as such terms are defined in the PUHCA, nor
is any Loan Party subject to
regulation as a "public utility" under the FPA, as amended,
nor is it an "investment
company", or an "affiliated company" or a "principal underwriter" of an
"investment company", as such terms are defined in the Investment Company Act of 1940.
Section 4.17 Use of Proceeds. Borrower will use the proceeds
of the Loans only for the
purposes and subject to the limitations specified herein.
Section 4.18 Environmental Matters. Except as disclosed on Schedule 4.18 hereto:
(a)
No Loan Party is in violation
of any Environmental Law with
respect to the Projects which violation could reasonably be expected to constitute a Material
Adverse Effect.
(b)
No Loan Party has used, released, discharged, generated,
manufactured, produced, stored or disposed of
Contaminants in, on, under or about any Project, or transported, arranged or
permitted the disposal thereto or therefrom, of any Contaminant that would
subject any Loan Party or Lender to a material liability under any Environmental Law or that could reasonably be
expected to constitute a Material Adverse Effect.
(c)
There are
no aboveground or,
to Borrower's Knowledge,
underground
tanks, whether operative or temporarily or permanently closed,
located on any Project, the presence of which could
reasonably be expected to constitute a Material Adverse Effect.
(d)
To Borrower's Knowledge, there is no condition
at any Project that
could reasonably form the basis of any
liability of a Loan Party or Lender under any Environmental Law that could
reasonably be expected to constitute a Material Adverse Effect.
(e)
There is no Environmental Claim pending or, to Xxxxxxxx's
Knowledge, threatened with respect to any Project
or Loan Party with respect
to any Project.
(f)
Borrower has received
or caused to be prepared
any environmental
report or site assessment with respect to any Project or Project site, except any such report
or assessment a true, correct and complete copy of which has been
delivered to Lender.
Section 4.19 Compliance with Laws. No Loan Party is in material default
or material
violation of, nor, to Xxxxxxxx's Knowledge, will the
continued construction or operation of any
Project be in material default or material violation of, any Law or any Applicable Permit.
Section 4.20 No Defaults
or Material Adverse Effect. No Default or Event of Default
has occurred and is continuing, and there has not occurred any event or circumstance that has
resulted or could reasonably be
expected to result in a Material Adverse
Effect.
Section 4.21 Labor Disputes
and Acts of God. As of the date hereof,
there are no
strikes, lockouts or slowdowns against
Borrower pending or, to Xxxxxxxx's Knowledge, threatened. To Borrower's Knowledge, the hours worked by and payments
made to employees of Borrower have not been in material
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters.
The business and Projects
and other assets of Borrower have not been affected by any fire, explosion,
accident, drought, storm, hail, earthquake, embargo, act of God, or other
casualty (whether or not covered by insurance) which could, in any one case or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.22 ERISA Compliance.
(a) Multiemployer Plan.
Except as disclosed on Schedule 4.22,
No Loan Party has a Plan or
(b)
Each Plan is in compliance in all material
respects with the
applicable
provisions of ERISA,
the Code and other applicable Law. Each Pension
Plan that is intended
to be a qualified plan under Section
401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service to the effect that the
form of such Plan is qualified under Section 401(a) of the Code and the trust
related thereto has been determined by the Internal Revenue Service to be
exempt from federal income tax under Section 501(a) of the Code, or an
application for such a letter is currently being
processed by the Internal Revenue Service. To Borrower's Knowledge, nothing has
occurred that would prevent or cause the loss of such tax- qualified status.
(c)
There are no pending
or, to Borrower's Knowledge, threatened
claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could be reasonably be
expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect
to any Plan that has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(d)
(i) No ERISA Event has occurred,
and neither Borrower
nor any
ERISA Affiliate is aware of any fact, event
or circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any Pension Plan; (ii) Borrower and each ERISA
Affiliate has met all applicable
requirements under the Pension Funding Rules in respect of each Pension Plan,
and no waiver of the minimum funding standards under the Pension Funding Rules
has been applied for or obtained; (iii) as of
the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or
higher and neither Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause
the funding target attainment percentage for any such plan to drop below 60% as
of the most recent valuation date; (iv) neither Borrower nor any ERISA
Affiliate has incurred any liability
to the PBGC other than for the payment of premiums, and there are no
premium payments which have become due that are unpaid; (v) neither Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been
terminated by the plan administrator thereof nor by the PBGC, and no event
or circumstance has occurred or exists
that could reasonably be expected to cause the PBGC to institute proceedings
under Title IV of ERISA to terminate any Pension Plan.
Section 4.23 Insurance. Schedule
4.23 sets forth a true,
complete and correct
description
of all insurance maintained by the
Loan Parties as of the date hereof. As of such date, such insurance is in full force and effect and all premiums have been duly paid.
Each Loan Party has insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
Section 4.24 Location of Real Property
and Leased Premises.
(a)
Schedule 4.24 (a) lists
completely and correctly as of the date
hereof all real property
owned by the Loan Parties
and the addresses
thereof.
(b)
Schedule 4.24 (b) lists
completely and correctly
as of the date
hereof all real property leased by the Loan
Parties and the addresses thereof. The Loan Parties have valid leases in all of
the real property that it leases as set forth on Schedule 4.24(b).
Except for its rights to use and access the applicable Projects set forth in
the applicable Material Project Documents to which the Loan Parties are a
party, no Project SPE is a licensee of, or easement holder with respect to, any real property rights.
Section 4.25 Security Documents. The Security Documents are and will continue
to be
effective to create in favor of Lender legal,
valid and enforceable Liens against the Collateral described therein and so
long as financing statements in appropriate form is filed in the offices
specified on Schedule 7.1, the Security Agreements shall continue to constitute
fully perfected Liens against all of the Loan Parties' respective rights, title
and interests in the Collateral described therein, in each case prior and
superior in right to any other Person
other than holders of Permitted Liens.
Section 4.26 Sanction Concerns. Neither Borrower, nor any Subsidiary, nor any
director, officer, employee, agent, affiliate
or representative thereof, is a Person that is, or is owned or controlled by any
Person that is (i) currently the subject or target of any Sanctions or
(ii) located, organized or resident in a
Designated Jurisdiction. No Loan, nor the proceeds from any Loan has been used,
to Borrower's Knowledge, directly or indirectly, to lend, contribute, provide
or has been otherwise made available to fund any activity or business in any Designated Jurisdiction or to
fund any activity or business
of any Person located, organized or residing in any
Designated Jurisdiction or who is the subject of any Sanctions, or in any other manner that will result in any violation by any Person (including
Lender) of Sanctions.
Section 4.27 Sufficiency. The Material Project
Documents are or will be sufficient in all
material respects to enable (x) each Project to be located and
constructed on the corresponding approved Project sites and (y) each Project to be operated and maintained
on the corresponding approved Project sites, in each case in accordance in all
material respects with applicable Law, each
Applicable Permit and the Construction
Budget or Operating Budget, as applicable.
Section 4.28 Government Regulation. As of the Drawdown Date of each Revolving
Loan for a particular Project, the Loan
Parties are not and will not, solely as a result of (i) entering into any Material
Project Document or any transaction contemplated hereby or thereby, or (ii) the construction, ownership, leasing, use or
operation of any Project, or the generation, transmission, distribution or sale of electric energy therefrom,
be subject to, or not exempt from, regulation as a "public utility" under the
FPA. Upon the initial generation of electricity from any
Project, the applicable Project SPE will not be
considered to be an "electric utility
company" and a "public-
utility company" under PUHCA and will not be subject to regulation as an
"electric company", "distribution company" or similar entity under applicable
Law of the State in which such Project is located or to the jurisdiction of which such Project is subject.
Section 4.29 Approved Projects. Schedule 1 lists completely and correctly as of the date
hereof all of the Projects which may be presented by Borrower for approval pursuant
to Section 2.1(a)(i) and specifying (including any estimates thereof as applicable) (a) the location
thereof and the Offtaker
therefrom, (b) the expected capacity thereof, (c) the suppliers of the modules,
inverters and other major items
of equipment with respect thereto,
(d) with respect
to the Primary Revenue Agreement that is then in effect or that is
expected to be entered into with respect to such system, listing the price
thereunder (and if renewable energy credits or other items are sold
thereunder, the price therefor) and the term thereof.
Section 4.30 No Other Bank Accounts. The Loan Parties
have no other deposit or
securities account other than the Borrower Account and
the Permitted Accounts in accordance with and subject to the Account Agreement.
Section 4.31 Solvency. Borrower and each other Loan Party, is and, immediately after
giving effect to the consummation of the transactions contemplated by the Loan Documents will be, Solvent.
Section 4.32 Financial Statements. The most recent financial statements (including the
notes thereto) delivered in respect of the Loan Parties pursuant
to this Agreement fairly present in all material respects the financial
condition of the Loan Parties as of the date thereof and have been prepared in
accordance with GAAP applied on a consistent basis, subject to the audit and
normal year-end adjustments and the absence of footnotes and associated
disclosures. Such financial statements and notes thereto disclose all direct or
contingent material liabilities of the Loan Parties as of the dates thereof.
Section 4.33 Construction Costs. As of the Drawdown Date of each final Revolving
Loan Disbursement for an Approved Project
advancing the remainder of the applicable Project Commitment, Borrower or its
Subsidiaries have received sufficient funds to pay any and all construction costs in
accordance with the
Construction Budget and any cost overruns which may have been incurred
or are reasonably expected to be incurred,
in each case,
including any amounts payable pursuant to an EPC
Contract, including the proceeds of any Loan.
Section 4.34 Joint Ventures. Borrower
represents and warrants
that (a) no default
exists
by any party to the Victory Xxxx XX Agreements and Borrower is not aware of any fact, circumstance
or occurrence which is reasonably likely to give rise to a default by any party to the Victory
Xxxx XX Agreements; and (b) Energea
Global owns 15% of Victory
Hill Joint Venture (on a fully diluted basis), free and clear of
any liens, claims, encumbrances, rights of repurchase, options, or
similar rights.
Article
VARTICLE V AFFIRMATIVE COVENANTS
Borrower covenants and
agrees that so long as this Agreement
shall remain in effect and until the Commitments shall have been terminated and all of the Obligations shall have been paid
and performed in full, unless Lender shall have
otherwise consented in writing, Borrower shall, and shall cause each Borrower Subsidiary to:
Section 5.1 Maintenance of Existence. Preserve
and maintain its existence in its current
form of organization in the jurisdiction of
organization and qualify and remain qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to
remain so qualified would not have a
Material Adverse Effect.
Section 5.2 Maintenance of Records. Keep proper books
of record and account, in
which complete entries
will be made substantially in accordance with GAAP consistently applied, reflecting all of their financial transactions.
Section 5.3 Business and Properties. (a) Do
or cause to be done all things
necessary to
obtain, preserve, renew,
extend, comply with and keep in full force and effect the rights, licenses, Permits (including all
Applicable Permits), franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business, and to own,
insure, operate and maintain the Projects in the manner contemplated by the
Material Project Documents; (b) maintain and operate
such business in substantially the manner in which it is
presently conducted and operated;
(c) comply in all material
respects with all Laws; and (d) at all times
maintain, keep and preserve
all of its properties necessary or useful in the proper conduct of its
businesses in good working order and condition, ordinary wear and tear
excepted.
Section 5.4 Maintenance of Insurance. (a) Keep its tangible personal property assets
insured against fire, theft and other hazards (so-called "All Risk" coverage) in amounts and with companies satisfactory to Lender to the same extent in covering such risks as is customary in the
same or a similar business, but in no event in an amount less than the lesser
of (i) the total Obligations or (ii) the amount necessary to avoid any co-insurance penalty, which policies shall name Lender as loss
payee as its interests may appear, (b) maintain public liability coverage
against claims for personal injuries, death or property
damage in an amount deemed
reasonable by Xxxxxx, which
policy shall name Xxxxxx as an additional insured, and (c) maintain all
worker's compensation, employment or similar insurance as may be required by applicable law. Such All Risk property insurance coverage shall
provide for a minimum of thirty (30) days' written cancellation notice to Lender, except if such cancellation notice is as a result of non- payment of premium, in which case ten
(10) days written cancellation shall be
provided. Xxxxxxxx agrees to deliver or cause to be delivered copies of all of the aforesaid insurance policies to
Lender. In the event of any loss or
damage to a material portion of Borrower, Borrower shall give immediate written
notice to Lender and to its insurers of such loss or damage and shall properly
file its proofs of loss with said insurers. Borrower
shall cause Lender
to be endorsed as a loss payee with a long form Xxxxxx's Loss Payable
clause, in form and substance acceptable to Lender, on all such insurance. In
the event of failure to provide and maintain insurance as herein provided,
Lender may, at its option, provide such insurance and the amount thereof shall
constitute Obligations. Borrower hereby
irrevocably appoints Lender
as its attorney-in-fact, coupled with an
interest, to make proofs of loss and claims for insurance and to receive
payments of the insurance
and execute and endorse all documents, checks
and drafts in connection with payment of the
insurance. Any
proceeds of insurance received by Lender shall be applied to the Obligations in
such manner and order of priority
as Lender shall determine in its sole discretion.
Section 5.5 Taxes. Pay and discharge before the same shall become
delinquent all
taxes, assessments, and governmental charges
or levies (including interest and penalties) imposed upon it or upon its income or profits or in respect of
its property, before the same shall become
delinquent or in default; provided, however, that such payment
or discharge shall not be required
with respect to any tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith
by appropriate proceedings diligently conducted and with
respect to which the applicable Loan Party
shall have set aside on its books adequate reserves in accordance
with GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien.
Section 5.6 Right of Inspection. Permit
Lender or any agent or representative of
Lender, upon (a) reasonable notice and during
normal business hours and as often as reasonably requested in the case of all examinations, visits
and inspections other than field examinations, and
(b) upon reasonable prior written notice (not
to be given more frequently than two
(2) times per calendar year) in the case of field examinations, to examine and make copies
of and abstracts from the
records, including, without limitation, computer records and books of account
of, and visit and inspect the properties of Borrower and any Subsidiary, and to
discuss the affairs, finances, and accounts of Borrower or such Subsidiary with
any of its Responsible Officers and directors and its independent accountants
(who, by this reference, are authorized by Xxxxxxxx to discuss such matters
with Lender or any agent or representative of Xxxxxx). After the occurrence and
during the continuance of an Event of
Default, Lender may undertake
any of the foregoing rights of examination
and inspection at any time and at any frequency.
Section 5.7 Reporting Requirements.
(a)
Furnish or cause to be furnished to Lender:
(i)
As soon as available
and in any event within one hundred
twenty (120) days after the end of each
Fiscal Year, the most recent unaudited annual financial statements (or audited
if available) of the Loan Parties, all in reasonable detail and accompanied by an unqualified report
thereon by a certified public accountant reasonably acceptable to Lender which shall state that such
financial statements present fairly the financial condition
as of the end of such Fiscal Year and the results of operations and changes in financial position
for such Fiscal Year of Borrower in accordance
with GAAP.
(ii)
On the last calendar
day of each month, (A) a construction
progress
report as to each Approved Project, (B) a reconciliation of the costs incurred
in connection with the construction of each Approved Project in construction as
compared to the applicable Construction Budget, (C) a reconciliation of the
costs incurred in connection with the
operation of each Approved Project in operations as compared to the applicable
Operating Budget, and (D) copies of bank
statements reflecting all funds
deposited into or withdrawn from the
Borrower Account, and (E) copies of bank statements reflecting end of month combined operating cash
balances for the Borrower and its Subsidiaries.
(iii)
On the last calendar day of each
quarter, a certificate from
Xxxxxxxx signed by a Responsible Officer, in
his or her representative, and not individual, capacity, certifying that (A) no
Default or Event of Default exists, and (B) Borrower is in compliance with all
required financial covenants under this Agreement, including pursuant to
Section 6.7 (such certifications to include a calculation of such compliance
and the supporting information therefor).
(iv)
Such other information respecting the condition or
operations, financial
or otherwise, of Borrower or any Subsidiary as Lender may from time to time reasonably request.
(b)
Borrower shall
make personnel available to conduct a meeting with
Lender once
per calendar month during the first six (6) months following the execution of
this Agreement and quarterly thereafter to discuss (i) the monthly and
quarterly reports delivered pursuant to Section 5.7(a)(iii) and (iv) and, (ii) cash flow usage
for the prior quarter and projected cash flow usage for the upcoming
quarter, and (iii) other matters regarding Borrower or any Subsidiary as Lender may from time to time reasonably request.
Section 5.8 Litigation
and Other Notices. Promptly, upon receiving written
notice, or
obtaining knowledge thereof
(and in any case no later
than five (5) Business Days after receiving written notice, or obtaining
knowledge thereof), give written notice to Lender of:
(a)
any litigation, action or proceeding pending or, to the knowledge
of
Xxxxxxxx, threatened, against any Loan Party
(i) involving claims in excess of $100,000 against, (ii) seeking any material
injunctive, declaratory or other equitable relief that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect, or (iii) instituted for the purpose of
revoking, terminating, suspending, withdrawing, modifying or withholding any Applicable Permit or Material Project Document;
(b)
any dispute
or disputes which may exist between it and any
Governmental
Authority and which
involve (i) claims
against it or a Project,
(ii) injunctive or declaratory relief, or (iii) revocation, modification, suspension or the
like of any Applicable
Permit or imposition of additional material conditions with respect thereto;
(c)
any Default
or Event of Default, and together with such notice or
as soon thereafter as possible, a description of the action
or actions that Xxxxxxxx has taken or proposes to take with respect to
such Default or Event of Default;
(d)
any casualty,
damage or loss, whether or not insured,
through fire,
theft, other hazard or casualty, if such casualty, damage or loss affects it or any Project;
(e)
any matter which has or could reasonably be expected to have a
Material Adverse Effect;
(f)
initiation of any condemnation or eminent domain
proceedings
involving a Project, a Project site or any material portion
thereof;
(g)
(i) any notice of default or termination given or received
under any
Material Project Document; (ii) any occurrence at, on or arising from an
Approved Project that has resulted
in or could reasonably be expected to result in material noncompliance with or a material liability under any Environmental Law, (iii)
Release of Contaminants on or from an Approved Project that has resulted in or
could reasonably be expected to
result in personal injury or material property damage or have a Material
Adverse Effect, or (iv) pending or threatened material Environmental Claim
against any Loan Party or arising in connection with occupying or conducting
operations on or at an Approved Project;
(h)
any termination, revocation, suspension or material modification of
any Applicable
Permit, or any action or proceeding related
to any notice of violation issued by a Governmental Authority to any
Loan Party;
(i)
any claim of force majeure under any Material
Project Document
and, to the extent reasonably requested by
Xxxxxx and reasonably available to Borrower, copies of related invoices,
statements, supporting documentation, schedules, data or affidavits delivered
under the relevant Material Project
Document;
(j)
its intention
to undertake any action or any action by
Borrower or
any Loan Party that would constitute a Reportable Event;
(k)
a copy of any amendment, modification, supplement or a waiver
with respect to any Material Project Document
to Lender promptly upon Xxxxxxxx receiving a copy thereof, but in no event
later than thirty (30) days after it has received a fully executed copy
thereof;
(l)
(i) any cancellation or material change in the terms, coverages
or
amounts of any insurance described in Section
5.4; and
(m)
(l) any materialmen's, mechanics', workers', repairmen's,
employees' or other like Lien or application
therefor in an amount in excess of $50,000 individually or $100,000 in the
aggregate, in each case having been recorded against (i) a Borrower, or (ii) an Approved Project relating to work
performed by or at the direction of
Borrower, in each case together
with a notice of such recordation describing the reasons for such Lien in reasonable detail and
attaching all relevant documentation
available to Borrower regarding such
Lien.
Section 5.9 Supervision of Construction. Borrower
shall supervise, manage and direct
the completion of the construction of all
Approved Projects, including the procurement of all materials necessary to
install, test, complete all Approved
Projects, by the EPC Contractor in
all respects consistent with the applicable EPC Agreement and all applicable manufacturer and design specifications relating to the
relevant Project, Prudent Industry Practices, Laws and Applicable Permits.
Borrower shall timely pay, or cause to be paid, all amounts
owed to the EPC Contractor,
and shall ensure that EPC Contractor timely pays all amounts
owed by it to its subcontractors and
vendors, in connection with the performance of all
obligations of the EPC Contractor under the applicable EPC Agreement when such
amounts are due and payable.
Section 5.10 Energy Regulation. Cause each Project
SPE to comply with all applicable
energy regulatory laws, including without
limitation the Brazilian legislation, the regulation determined by the
competent authorities and, if applicable, the Resolution No. 482, issued on
April 17th, 2012 by the National Agency of Electrical Energy - XXXXX
(Agência Nacional de Energia Elétrica - XXXXX), if applicable.
Section 5.11 Use of Proceeds; Use of Cash Flow.
(a)
Section 5.11 Use of Proceeds. Use the proceeds of
the Loans only
for the purposes and subject to the limitations specified herein.
(b)
On a monthly basis,
use cash proceeds
solely as follows,
and in
the following order of priority:
(i)
First, to fund the DS Account
in accordance with
Section 5.15(b);
(ii)
Second, to make payments
to Lender of principal,
interest, and other charges and fees as they come due hereunder;
(iii)
Third, to fund reserves
to pay for the Operating
Budgets for Approved
Projects;
(iv)
Fourth, to use for construction costs in accordance with
the Construction Budgets
for Approved Projects;
and
(v)
Fifth, to make distributions or dividends to the holders
of
Class A Investor Shares of the Borrower pursuant to the Borrower's Offering
Circular dated June 30, 2020, as supplemented or amended from time to
time.
Section 5.12 Additional Collateral. With respect to any personal
property acquired after
the Closing Date by any Loan Party that is
intended to be subject to the Lien created by any Security Document, including, but not limited to, all rights,
title and interest of any Loan Party
in, to and under any after-acquired Maintenance Services Agreement, Interconnection Agreement or REC Agreement, but is not so
subject, promptly (and in any event within 30 days after the acquisition
thereof) (a) execute and deliver to Lender such amendments or supplements to
the relevant Security Documents, or such other documents as Lender shall reasonably deem necessary
to grant to Lender, for its benefit
and for the benefit of its Affiliates, as applicable, a Lien on such
property subject to no Liens other than Permitted Liens, and (b) take all
actions necessary to cause such Lien to be duly perfected to the extent
required by such Security Agreement in accordance with all applicable Law,
including the filing of financing statements in such jurisdictions as may be
reasonably requested by Lender. Borrower shall otherwise take such actions and
execute and deliver to Lender such documents as Lender shall reasonably require to
confirm the
validity, perfection and priority of the Lien of the Security Agreements
against such after-acquired property or cause the applicable Loan Party to take
such action or execute and deliver such documents.
Section 5.13 Material Project
Documents. Borrower shall
and shall cause each Loan
Party to
(a) perform and observe
all of its material covenants and obligations contained in each of the Material Project Documents to which
it is a party (subject to any applicable exceptions set forth in the Material Project Documents), (b) take all reasonable and necessary action to prevent the termination or
cancellation of any Material Project Documents to which it is a party (except
for the expiration of any Material Project Document in accordance with its
terms and not as a result of a breach or default thereunder), and (c) enforce
against the relevant Key Project Participant each material covenant or material
obligation of such Material Project Document to which it is a party in accordance
with its terms, including enforcing such Loan Party's rights
and remedies under the Material Project Documents to maximize the amount
of liquidated damages available to such Loan Party under the Material Project
Documents.
Section 5.14 Construction Costs. Commencing as of the Drawdown
Date of the final
Revolving Loan Disbursement for any Approved
Project advancing the remainder of the applicable Project Commitment, Borrower
or its Subsidiaries have received equity contributions
from the Additional Investors and/or
Borrower which are sufficient to pay any and
all remaining construction costs in
accordance with the
Construction Budget and any cost overruns which may have been incurred or are reasonably expected to be
incurred, including, in each case, any amounts payable pursuant to an EPC
Contract, with respect to each such Approved Project; provided that, upon a
written request by Xxxxxxxx, Lender may elect, in its sole discretion, to waive the foregoing requirement and size the final Revolving Loan Disbursement for an Approved Project in an amount equal to
the remainder of the expected acquisition, development or construction costs
set forth in the applicable Construction Budget not paid previously plus any
cost overruns which may have been
incurred or are reasonably expected
to be incurred.
Section 5.15 Account Controls.
(a)
Any and all proceeds
of Revolving Loans and any and all Project
Revenues shall be deposited into the Borrower Account and applied solely to the payment of permitted costs in
accordance with Schedule 7.3, including compliance with the applicable Construction Budget and Operating
Budget except for any variance
approved by the Lender in
accordance with Schedule 7.3 based on the submission by Borrower of a
certificate in the form of Exhibit H.
(b)
Until (i) the Borrower
provides Lender with evidence (in form
and
substance satisfactory to Lender) that the Obligor Debt Service Coverage Ratio exceeds 1.5:1.0
on a trailing twelve months basis and (ii) the Project
known as "Araxa I" shall become an Approved Project (the
satisfaction of clauses (i) and (ii) being referred to as the "Step-Down
Condition"), the Borrower shall cause the DS Account to have a minimum
balance at all times of at least $810,000. Following
the occurrence of the
Step-Down Condition, the Borrower shall cause the DS Account to have a minimum
balance at all times of at least $405,000; provided, however, that once the
Borrower provides Lender with evidence
(in form and substance satisfactory to
Lender) that (i) the
"Divinopolis II" project, on its own (i.e., Project Actual Net Cash Flow and Project
Debt Service only take into account the "Divinopolis II" project), has
produced a Project Debt Service Coverage Ratio of at least 1.2:1.0 for
a calendar quarter, and (ii) the "Divinopolis II" project interconnection
has been completed, the Borrower's obligation to maintain the DS Account
shall be released and the Lender shall
execute a release
and termination of the DS Account account control agreement.
(c)
All proceeds
received by Energea
Global of or from the Victory
Hill
Joint Venture (exclusive of proceeds in respect of management fees, service
fees, administrative fees and similar fees) shall be deposited
into the VH Account, subject to the terms of the account control
agreement with Lender governing such account.
Section 5.16 Further Assurances. Promptly upon request by Xxxxxx, Borrower
shall or
shall cause any Loan Party to (a) correct any
material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and (b) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds,
certificates, assurances and other instruments as Lender may reasonably require
from time to time
in order to (i) carry out more
effectively the purposes
of the Loan Documents, (ii)
perfect and maintain the validity, effectiveness and priority of any of the
Security Documents and any
of the Liens intended to be
created thereunder (other than Permitted Liens that are accorded priority
pursuant to applicable Law) and (iii) assure, convey, grant, assign, transfer,
preserve, protect and confirm more
effectively unto Lender the rights granted
or now or hereafter intended to be granted to Lender under any Loan Document
or under any other instrument executed
in connection with any Loan Document to which any Key Project
Participant is or is to be a party (provided, that in
case an action
is required of a Key Project
Participant, that is not Borrower,
to comply with this Section 5.16, Borrower shall use commercially reasonable
efforts to comply with this Section 5.16).
Article
VIARTICLE VI NEGATIVE COVENANTS
Borrower covenants and
agrees that so long as this Agreement
shall remain in effect and until the Commitments shall have been terminated and all of the Obligations shall have been paid
and performed in full, unless
Lender shall have otherwise consented in writing, neither
Borrower nor any Subsidiary shall, directly or indirectly:
Section 6.1 Liens. Create,
incur, assume, or suffer to exist any Lien upon or with
respect to any of its properties or assets
(including without limitation, securities and other investment property), now
owned or hereafter acquired by it or on any income or revenues or rights in
respect of any thereof, except:
(a)
Xxxxx created
under the Loan Documents in favor of Xxxxxx;
(b)
Liens created
in connection with the Senior
Debt; and
(c)
the following
types of Liens (excluding any such Lien imposed
pursuant to Section 401(a)(29) or Section 412(n)
of the Code or by ERISA or any such
Lien relating to or
imposed in connection with any Environmental Claim), in each case as to
which no enforcement, collection, execution, levy or foreclosure shall have
been commenced (collectively, the "Permitted Liens"):
(i)
Liens for taxes or assessments or other government charges
or levies not yet due and payable
or which are being contested
in compliance with Section 5.5 and
with respect to which Borrower has established reserves in accordance with
GAAP;
(ii)
pledges or deposits to secure obligations in the ordinary
course of business under workers' compensation laws,
unemployment insurance or other similar social
security legislation (other than in respect of employee benefit plans subject to ERISA);
(iii)
Xxxxx imposed
by law, such as carriers', mechanics',
materialmen's, storage and repairmen's Liens
and other similar Liens arising in the ordinary course of business and securing
obligations (other than Debt) (A) that are not delinquent, or (B) the amount,
applicability or validity of which is being
contested in good faith and by
appropriate proceedings diligently conducted and with respect to which Borrower
has established reserves
in accordance with GAAP;
liability to insurance carriers;
(iv)
deposits made in the ordinary course of business
to secure
(v)
easements, rights-of-way, zoning restrictions and other
encumbrances and survey exceptions, minor
defects or irregularities in title and other similar restrictions on title to,
or the use of, real property that do not, either individually or in the
aggregate (A) materially detract from the value of such real property, or (B)
materially and adversely affect the use of such real property for its intended
purposes or the conduct of the business of Borrower
in the ordinary course and, in any case, that were not incurred in connection
with and do not secure Debt or other extensions of credit.
Section 6.2
Debt, except:
Debt. Create, incur, assume, or suffer to exist any recourse or nonrecourse
(a)
Debt pursuant to the Loan Documents;
Closing Date;
(b)
The Senior
Debt as in the principal
amount outstanding on the
(c)
Debt resulting from endorsement of negotiable instruments for
collection in the ordinary
course of business;
(d)
Debt for borrowed money incurred by a Project
SPE with the prior
written consent
of Lender;
(e)
accounts payable
to trade creditors for goods or services and
current operating liabilities (other than for borrowed
money), in each case incurred in the ordinary course of business.
Section 6.3 Guaranties. Except
for the Loan Documents, assume,
guaranty, endorse, or
otherwise
be or become directly or contingently responsible or liable (including, but not limited
to, an agreement to purchase any obligation, stock, assets, goods, or
services, or to supply or advance any funds, assets, goods, or services, or to
maintain or cause such Person to maintain a minimum working capital or net
worth, or otherwise to assure the creditors of any Person
against loss) for obligations of any Person, except for guaranties by
endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business.
Section 6.4 Sale of Assets.
(a)
As to each Project
SPE, sell, lease,
assign, transfer, or otherwise
dispose of any of its now owned or hereafter
acquired assets except sales of energy,
capacity and related products by the Project SPEs in the ordinary course.
(b)
Sell, lease,
assign, transfer or otherwise dispose
of any
Approved Project set forth on Schedule 6.4.
(c)
Sell, lease,
assign, transfer, or otherwise dispose
of any Current
P2
Asset (excluding any Approved Project), until
such time as the Borrower provides Lender with
evidence that the Obligor Debt Service Coverage Ratio exceeds 2.2:1.0, in
form and substance satisfactory to Lender; provided however that prior to any
such sale, lease, assignment, transfer or other disposal of any Current P2
Asset (excluding any Approved Project), the Borrower has provided Lender
with a pro forma compliance certificate evidencing continued compliance
of the remaining Current P2 Assets of the Obligor Debt Service Coverage
Ratio in excess of 2.2:1.0, in form
and substance satisfactory to Lender.
(d)
(b) As to each of Borrower
and the Portfolio Companies, sell,
lease,
assign, transfer, or otherwise dispose of or
grant any interest in, option on or warrant or other similar interest in, any
of its now
owned or hereafter acquired Equity Interests in any Loan Party,
including without limitation any Project SPE that owns an Approved Project.that has been pledged
as Collateral to Lender from time to time. For the avoidance of doubt,
this Section 6.4(d) will not, in any way limit the sale, lease, assignment,
transfer or other disposal of or grant of any interest in, option on or warrant
or other similar interest in any Equity Interests of the Borrower or any Portfolio
Company other than those pledged Equity Interests referenced above.
(e)
(c) As to each Loan Party, sell, lease, assign,
transfer, or otherwise
dispose of any of its now owned or hereafter
acquired assets which constitute Collateral except sales of energy, capacity
and related products by the Project SPEs in the ordinary course.
(f)
(d) As to each of Borrower
and the Portfolio
Companies, following
an Overrun Event, sell, lease, assign, transfer,
or otherwise dispose
of any of its now owned
or hereafter acquired assets.
Section 6.5 Developer Fee.
Pay any developer fee to Borrower
or any Affiliate of
Borrower for any Approved Project unless such payment of a developer
fee is in accordance with the
applicable Operating Budget for such Approved Project;
provided that any such developer fee shall be reduced in the amount of any cost overrun incurred
with respect to such Approved Project.
Section 6.6 Restricted
Payments. Declare or make, directly or indirectly,
any Restricted
Payment, or incur any obligation (contingent
or otherwise) to do so, except that any Loan
Party may declare and make dividend
payments or other
distributions payable solely
in common equity interests of such Person beginning after the Initial
COD so long as no Default or Event of Default
has occurred and is continuing prior to or immediately following such dividend or distribution or otherwise results from such dividend or distribution (or would exist as a result thereof), including pursuant to the financial covenant in Section 6.7, if applicable.
Section 6.7 Financial Covenants.
(a)
Section 6.7 Project
Debt Service Coverage
Ratio. Allow the
Project Debt Service Coverage Ratio to be less than 1.20:1.00 as of the last
Business Day of any calendar quarter beginning with the second full calendar
quarter following the Initial COD.
(b)
Minimum Operating
Cash Balance. Allow the Borrower's and
its Subsidiaries'
combined operating cash balance to be less than $270,000 as of the end of any calendar
month.
Section 6.8 Burdensome Agreements. Enter into any agreement or other contractual
commitment (other than existing agreements or
contractual commitments entered into by Borrower prior to the date hereof, this
Agreement or any other Loan Document) that (a) limits the ability of Borrower
or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;
provided, however, that nothing herein
shall prohibit any negative pledge or
any prohibition on transfer incurred
or provided in favor of any holder of Debt permitted under Section 6.2(b) solely to the extent any such negative
pledge or prohibition on transfer relates to the property financed by or the subject of such Debt; or (b) requires the grant of a Lien
to secure an obligation of such
Person if a Lien is granted to secure
another obligation of such Person.
Section 6.9 No Accounts. Open or maintain
any deposit or securities account
other
than the Borrower Account, the DS Account, and the Permitted Accounts in accordance with and subject to the Account Agreement.
Section 6.10 Change Name; Location or State of Incorporation. (a) Change its legal
name or conduct its business under any trade
name other than as hereinabove set forth unless Borrower gives thirty (30) days prior
written notice to Lender; (b) conduct business, locate
assets or maintain an office at any location
unless Borrower gives thirty (30) days prior written notice to
Lender; and (c) change its legal structure or State of incorporation or
formation from its current legal structure or State of formation unless
Borrower gives thirty
(30) days prior written notice
to Lender.
Section 6.11 Fiscal Year.
Change its Fiscal Year.
Section 6.12 Management/Control and Accounting Methods. (a) Suffer any change
in its
Control which
Lender deems, in its sole discretion, to be a material change, (b) make a material adverse change in the nature of its business
or a material change in its method of accounting; or
(c)
suffer the death, removal,
termination or resignation of any of its Responsible Officers, unless
within 90 days thereafter the Company engages a replacement for such Responsible Officer.
Section 6.13 Sale and Leaseback. Sell, transfer, or otherwise dispose
of any real or
personal property to any Person
and thereafter directly
or indirectly lease back the same or similar
property.
Section 6.14 Sanctions. Directly
or indirectly, use any Loan or the proceeds of any
Loan, or lend, contribute or otherwise make
available such Loan or the proceeds of any Loan to any Person, to fund any
activities of or business with any Person, or in any Designated Jurisdiction,
that, at the time of such funding, is the subject of Sanctions, or in any other manner that
will result in a violation by any Person
of Sanctions.
Section 6.15 Affiliate
Contracts. Except as set forth in Schedule
6.15, be a party to any
transactions or arrangements (including any
transactions relating to the buying or selling of any Property or any products
of the Projects or involving the receipt of
money as payment for goods or
services) with any Affiliate of any Loan Party or
make payments to any Affiliate thereunder.
Section 6.16 JV Agreements.
(a)
Take, or permit Energea
Global to take, any action or omission
that
constitutes, or with the lapse of time will
constitute, a breach, default or event
of
default under the Victory Xxxx XX Agreements, or permit any breach, default or event of default by any other
party to such agreements.
(b)
Permit, or permit Energea
Global to permit,
the distribution of
Energea
Global's share of the proceeds of any sale or divestment of any project or asset owned
(directly or indirectly) by Victory Hill Joint Venture unless the proceeds of
such sale or divestment are deposited into and maintained in the VH Account.
Article VIIARTICLE VII SECURITY
Section 7.1 Security. As set forth
in Schedule 7.1, as of the Closing
Date and each
Drawdown Date for any Revolving Loan or any
Term Loan, Borrower shall, or shall cause the applicable Loan Party to, execute
or file and deliver to Lender each Security Document not previously delivered as of such date. The Obligations are and shall continue
to be secured by and
pursuant to the Security Documents.
Section 7.2 Release of Borrower[Reserved].
(a) If no Revolving Loans are outstanding,
Lender shall release Borrower from its obligations under the Loan Documents upon Xxxxxx's receipt
of (i) evidence that the
Obligor Debt Service Coverage Ratio
exceeds 2.2:1.0, in form and substance satisfactory to Lender, and (ii)
written notice from Borrower requesting such release. Following such release, each and every
Additional Obligor at the
time of such release shall thereafter be deemed to be the "Borrower" for all purposes
hereunder and shall
be directly liable,
on a joint and several
basis, for all of the
Obligations in accordance with the terms of
this Agreement.
Section 7.3 Bank Account. Subject to Section 5.11(b) and Section 6.16(b), no Loan
Party shall deposit or withdraw any funds in
or from the Borrower Account or any Permitted Account except in accordance with
Schedule 7.3. No Loan Party shall apply
the proceeds of any Loan or any Project Revenue to the
payment of any costs other than permitted costs in accordance with Schedule
7.3.
Section 7.4 Security Documents. Borrower shall, and shall cause each other Loan
Party, to comply with the Security
Documents to which each is a party.
Section 7.5 Collateral. The collateral
for the Obligations shall include all Project
Assets
for any Approved Project, and the Equity Interests
of the Portfolio Companies and Project
SPEs, in each case, as further described in and in accordance with the
applicable Security Documents. Collateral for the
Obligations shall also include (a) the VH Account, until such time as the Borrower provides
Lender with evidence that the Obligor Debt Service Coverage Ratio exceeds 2.2:1.0, in
form and substance satisfactory to Lender, and (b) the DS Account, in accordance
with Section 5.15(b).
Article VIIIARTICLE VIII EVENTS OF DEFAULT
Section 8.1 Events of Default.
(a)
The following events (whether voluntary or involuntary or effected
by operation of law or otherwise) shall be an "Event of Default":
(i)
Borrower shall fail to pay the principal of, premium, if any,
or interest on any Loan, on the date that such
amount is due and payable, whether
at the due date thereof or at a date fixed for
repayment or prepayment thereof or by acceleration thereof or otherwise.
(ii)
Borrower shall fail to pay any amount of any fee, or any
other Obligation, in each case within fifteenthirty (1530) calendar days after the date that such amount is due
and payable, whether at the due date thereof or at a date fixed for repayment
or prepayment thereof or by acceleration thereof or otherwise.
(iii)
Any representation or warranty made or deemed
made by or
on behalf of Borrower
in or in connection with any Loan Document or the borrowings hereunder
or thereunder, or any representation, warranty statement or information
contained in any certificate, document, opinion,
report, financial statement
or other instrument furnished at any
time on behalf of Borrower
in connection with or pursuant to any Loan Document, shall prove to have
been false or misleading in any material
respect when so made, deemed made or
furnished.
(iv)
Default in the due observance or performance by Xxxxxxxx
or any Subsidiary of any covenant
contained in Section
5.1 (Maintenance of Existence), Section
5.3 (Business and Properties), Section 5.4 (Maintenance
of Insurance), Section 5.11 (Use of Proceeds; Use of Cash Flow),
Section 5.14 (Construction Costs), Section 5.15 (a) (Account
Controls), Section 5.16 (Further Assurances), Article VI, (excluding Section 6.7(b)), Article VII (and the related Schedules) or Article
IX (and the related Schedule).
(v)
Default in the due observance or performance by Xxxxxxxx
or any Subsidiary of any other covenant or
agreement contained in this Agreement or any covenant or agreement contained in
any other Loan Document (other than those specified elsewhere in this Section
8.1) and, in each case, such default shall continue unremedied for a period of fifteenthirty (1530) calendar
days after the date such default occurred.
(vi)
Borrower shall
(A) fail to pay any principal or interest,
regardless of the amount, due in respect of
Debt in the principal amount in excess of $250,000, when due and payable or
within any grace period for the payment thereof, or (B) fail to perform or observe any other term, covenant, condition or
agreement under any agreement or
instrument evidencing, governing or relating to any such Debt (which is not
waived by the holder or holders
of such Debt) if the effect of any failure referred
to in this clause (B) is to
cause, or to permit the holder or holders of such Debt or a trustee on its or
their behalf (with or without the giving of notice, or the lapse of time) to
cause, such Debt to become due prior to its stated maturity or to permit the
acceleration after the giving of notice
or passage of time, or both, of the maturity.
(vii)
Any Loan Party institutes or consents to the institution of
any proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of the applicable Loan
Party and the appointment continues undischarged or unstayed for 60 calendar
days; or any proceeding under any Debtor Relief Law relating to the applicable Loan Party or to all or any
material part of its property is instituted without the consent of Borrower and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(viii)
One or more judgments or orders (including, without
limitation, writs or warrants of attachment,
garnishment, execution, distraint or similar process) for the payment of money
in excess of $250,000 shall be rendered against Borrower or any Subsidiary and
shall remain unsatisfied and either (A) enforcement proceedings shall have been
commenced by any creditor upon any such judgment or order, or (B) there shall be any
period of at least ten (10) consecutive days during which a stay of
enforcement of any such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect.
(ix)
(A) An ERISA Event occurs
with respect to a Pension
Plan
or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of
Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the $250,000,
or (B) Borrower or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability
under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the
$250,000; or
(x)
Any Loan Party repudiates, revokes or attempts
to revoke
or denies or contests the validity or enforceability of any of the
Loan Documents or Obligations, or the perfection or priority of any Lien
granted to Lender; any Loan Document ceases to be in full force or effect for
any reason (other than a waiver or release by Lender); or any Security Document
shall at any time after its execution and delivery and for any reason cease to
create a valid and perfected first priority (except as otherwise expressly
provided in this Agreement or such Security Document) Lien in and to the
property purported to be subject to such Security Document.
(xi)
Any Loan Party is criminally indicted
or convicted for (A) a
felony committed in the conduct of Xxxxxxxx'xxxx business, or (B)
any state or federal law (including the Controlled Substances Act, Money
Laundering Control Act of 1986 and Illegal Exportation of War Materials Act)
that could lead to forfeiture of any material Property of Borrower or any
Collateral.
(xii)
There shall have occurred
a Material Adverse Effect or a
material adverse
change in the financial standing
of any customer counterparty of Borrower or any
Borrower Subsidiary.
(xiii)
There shall have occurred
a default or event of default (after
the
expiration of any applicable grace or cure periods) under or within the meaning
of (A) any other instruments or agreements between Lender and Borrower, or (B) the Victory Xxxx XX Agreements (but
only during such time as the Lender is
entitled to maintain its lien on the VH Account in accordance with Section 7.5), or (C) any of the Material
Project Documents or the
Senior Debt.
(xiv)
If, at any time, the Loan Parties fail to obtain or maintain
binding
commitments in sufficient amounts to fund any and all construction costs for
each Approved Project as and when due and payable pursuant to any EPC Contract
or any similar agreement, including any cost overruns incurred or reasonably
expected to be incurred and, in each case, such failure shall continue
unremedied for a period of thirty (30) calendar days after the date such
failure occurred.
(b)
Upon and after the occurrence of any Event of Default,
Lender may
take any or all of the following actions:
(i) Commitments shall be terminated;
declare the Commitments to be terminated, whereupon such
(ii)
declare all the outstanding Obligations to be forthwith due
and payable, whereupon the Commitments shall be terminated, and all Obligations shall become
and be forthwith due and payable, with notice to Borrower;
(iii)
upon no less than 48 hours'
prior written notice
to
Borrower and without interruption to Borrower's
operations, enter onto the property where any Collateral is located and take possession thereof with or without judicial process;
(iv)
exercise all the rights
and remedies of Lender on default
under the UCC (whether or not the UCC applies
to the affected Collateral) to collect, enforce or satisfy any Obligations
then owing, whether by acceleration
or otherwise; and
(v)
exercise any and all rights and remedies available to it under
the Loan Documents, at law or in equity.
For the avoidance of doubt, Xxxxxx may sell
the Collateral and may do so without giving any warranties as to the Collateral. Lender may specifically disclaim or modify any warranties of title or the
like. This procedure will not be
considered to adversely affect the commercial reasonableness of any sale of the Collateral. Lender
shall have no obligation to marshal any of the Collateral. In addition to the foregoing, upon the occurrence and during the
continuation of an Event of Default, Lender shall have the right, without
notice to Borrower, to transfer all or any portion of the Equity Interests
pledged as Collateral to its name or the name of its nominee or agent. In the event of a transfer pursuant to the
immediately preceding sentence, Lender shall within a reasonable period of time
thereafter give Borrower written notice of such transfer; provided, however,
that (x) failure to give such notice shall have no effect on the rights
of Lender hereunder and (y)
Lender shall not be required to deliver any such notice if Borrower is the
subject of an Event of Bankruptcy or the delivery of such notice is otherwise
prohibited by Applicable Laws. Borrower
hereby agrees that it shall at its expense and promptly upon request
of Lender forthwith, assemble all or part of
the Collateral (if and to the
extent in the possession or any Loan Party) as directed by Xxxxxx
and make it available to Lender at a place to be designated
by Lender that is reasonably convenient to the Parties.
(c)
Borrower and each Additional Obligor hereby irrevocably
constitutes and appoints Xxxxxx, acting for
and on behalf of itself and each successor or permitted assign of Lender as its
true and lawful attorney-in-fact, with full power and authority in the place
and stead of Borrower each Additional Obligor and in the name of Borrower, each
Additional Obligor or in its own name, at Borrower's sole reasonable cost and
expense, subject to the terms of this Agreement and Applicable Laws, to enforce
all rights, interests and remedies of Borrower or an Additional Obligor with
respect to the Collateral upon the occurrence and during the continuation of an
Event of Default, for the purpose of carrying out the provisions of this
Agreement, including without limitation, generally to sell, transfer, pledge and make any agreement with respect to or otherwise deal with any Collateral as fully and
completely as though Lender were the absolute owner thereof for all purposes,
and do, at Xxxxxx's option and Xxxxxxxx's reasonable expense, at any time, or from time to time, all acts and things that Lender reasonably deems necessary to protect, preserve or realize upon the
Collateral and Xxxxxx's Lien thereon and to effect the
intent of this Agreement, all as fully and effectively as
Borrower or an Additional Obligor
might do.
(d)
From and after any Event of Default and the exercise
of remedies
by Xxxxxx, all payments made under this
Agreement or the other Loan Documents and all other amounts received by Lender
under this Agreement or the other Loan Documents (including proceeds from any disposition of Collateral) shall be applied as follows:
(i)
first, to any fees or costs
or expenses payable
to Lender
hereunder or under the other Loan Documents;
(ii)
second, on a pro
rata basis, to any accrued
but unpaid
interest and outstanding principal then due and owing and remaining unpaid;
(iii)
third, to such other
Obligations as remain
outstanding; and
thereto.
(iv)
fourth, to Borrower
or any other person legally
entitled
(e)
The occurrence
of an Event of Default under this Agreement
shall
constitute an event of default under or
within the meaning of any other Loan Documents, and vice versa, and shall
entitle Lender to initiate and pursue, in Xxxxxx's sole discretion exercised on
one or more occasions, and all any rights and remedies available to Lender
hereunder and/or under any of the other Loan Documents, with notice to
Borrower, any requirement for which
is hereby expressly waived by Borrower, anything contained herein
or in any Loan Document to the contrary notwithstanding.
Article IXARTICLE IX ADDITIONAL OBLIGORS
Section 9.1 Obligations.
(a)
Each General Loan Obligor shall be jointly and severally liable, as a
primary obligor and not merely as a surety,
and hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity
or on any date of a required prepayment or by acceleration, demand or
otherwise, all Obligations, in each case, as
defined in and in accordance with the terms set forth in Schedule 9.1(a).
(b)
Each Term Loan
Obligor shall be jointly and severally liable, as a
primary obligor and not merely as a surety,
and hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity
or on any date of
a required prepayment or by acceleration,
demand or otherwise, all Guaranteed Obligations, in each case, as defined in and in
accordance with the terms set forth in Schedule 9.1(b).
Section 9.2 Additional
Obligors.
(a)
If any Approved Project
is owned by a Project SPE which,
in turn,
is owned by a holding company other than Portfolio 2the
Borrower formed for the exclusive purpose of owning the applicable
Project SPE, then such holding company shall
become a Term Loan Obligor
hereunder. Borrower shall present an executed Joinder Agreement executed by
such Additional Obligor with the Project Approval Package approved by Lender
for such Project pursuant to Section 2.1(a)(i).
(b)
Xxxxxx and Xxxxxxxx may agree from time to time that an
additional
Affiliate of Borrower will become a General
Obligor. Xxxxxxxx shall present an executed Xxxxxxx Agreement executed by such Additional Obligor as and when required
by Xxxxxx.
Article
XARTICLE X GENERAL PROVISIONS
Section 10.1 Amendments. No amendment, modification, terminally, or waiver of
any
provision
of any Loan Document, or
consent to any departure by Borrower
from any terms of any Loan Document, shall in any
event be effective unless the
same shall be in writing and signed by Xxxxxx, and then such waiver or consent shall
be effective only in the specific instance
and for the specific purpose for which given. No notice or demand on
Borrower in any case shall entitle Borrower or any other Person to any other or
further notice or demand in similar or other circumstances unless such notice
is expressly required pursuant to the terms hereof, any Loan Document or by
applicable Law.
Section 10.2 Notices, Etc.
All notices, demands,
requests, and other communications
given under this Agreement shall only be
effective if they are (a) in writing, (b) sent by hand delivery, by facsimile
transmission, by reputable express delivery service, or by certified or
registered mail, postage prepaid, and (c) (i) when delivered to the addressee
by hand, (ii) when received by the addressee as evidenced by a return receipt
signed by the addressee or its agent, and (iii)
in the case of facsimile
transmissions, when transmitted,
answer back received:
(i)
If to Lender,
to it at:
Lattice Energea
Global Revolver I LLC
000 X. 00xx Xx.000 Xxxxxxxx
Xxxxx, Xxx. 14C2 New YorkBrooklyn,
NY 1001011215 xxxxxxx@xxxxxxxxxxxxx.xxx
Telephone No.: (000) 000-0000
(ii)
If to any Borrower or any Loan Party, to it at:
Energea Global LLC 0
Xxxxx Xxxx
Old Saybrook, CT 06475
xxxx@xxxxxxx.xxx
Telephone No.: (000)
000-0000
(iii)
or
to such other address (and/or facsimile transmission number) as Borrower or Lender, as the case may be, shall
have specified in the latest unrevoked notice sent to the other in accordance
with this Section 0.210.2.
Section 10.3 No Waiver;
Remedies. No failure
on the part of Lender
to exercise, and no
delay in exercising, any right, power, or
remedy under any of the
Loan Documents shall operate as a
waiver of such right, power, or remedy, nor shall any single or partial exercise of any right, power, or
remedy under any of the Loan Documents, or any abandonment or discontinuance of
steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right,
power, or remedy. The rights, powers and remedies provided in the Loan
Documents are cumulative and not exclusive of any rights, powers or remedies
that Lender would otherwise have, whether under the Loan Documents, at law, in
equity, or otherwise.
Section 10.4 Successors and Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that BorrowerLender may assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of XxxxxxXxxxxxxx (and any other attempted assignment
or transfer by Borrower without such consent shall be null and void).
Section 10.5 Transfer of Xxxxxx's Interests.
(a)
Assignments. Xxxxxxxx hereby
agrees that Xxxxxx, at its own cost
and expense,
shall have the right, subject
to written consent from Xxxxxxxx, to assign all or a portion of its rights and obligations hereunder to
one or more investors or other financial institutions.
(b)
Participations. Xxxxxxxx hereby agrees that Xxxxxx, in its sole
discretion, shall have the unrestricted right
at any time and from time to time, and without the consent of or notice
of Borrower, to grant
participating interests in its obligation to lend hereunder and/or all or any part
of the Obligations to one or more banks or other financial institutions (each,
a "Participant"). In the event of any such grant by Xxxxxx of a participating interest
to a Participant, Xxxxxx shall
remain responsible for the performance of its obligations hereunder
and Xxxxxxxx shall
continue to deal solely and directly with Lender
in connection with Xxxxxx's rights and obligations hereunder. Lender may
furnish any information concerning Borrower in its possession from time to time
to Participants and prospective Participants, provided that Lender shall
require any such Participants and prospective Participants to agree in writing
to maintain the confidentiality of such information, except as required
by applicable laws or Governmental Authorities, and provide notice to Borrower of such action.
(c)
Indemnification. Borrower shall
jointly and severally
indemnify
Lender and each Related Party of Lender (each such Person being called
an "Indemnitee") against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable
fees, charges and disbursements of
any counsel for any Indemnitee) incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by
Borrower arising out of, in connection with, or as a result of: (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or the administration
of this Agreement and the other Loan Documents, (ii) any Loan or the use or
proposed use of the proceeds therefrom, (iii) any actual or alleged presence or
Release of Contaminants on or from any property owned or operated by Borrower
or Project SPE or any Subsidiary and related in any way to any activity of
Borrower or Project SPE or such Subsidiary, or any liability resulting from any
Environmental Claim related in any way to any
activity of Borrower or
Project SPE or any Subsidiary, or (iv) any actual or prospective claim,
litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought
by a third party or by Xxxxxxxx, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or
not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of any Indemnitee; provided that such indemnity shall
not, as to any Indemnitee, be available to the
extent that such losses, claims,
damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted
from the gross negligence or willful
misconduct of such Indemnitee.
Section 10.6 Right of Setoff. Borrower
hereby grants to Lender a continuing lien,
security interest and right of setoff as
security for all of the Obligations and other liabilities of Borrower to Lender
or any Affiliate of Lender, whether now existing or hereafter arising, upon and
against all its deposits, credits, collateral and property, now or hereafter in
the possession, custody, safekeeping or control of Lender or any entity under
the control of Lender's parent company, if any, and its successors and assigns or in transit to any of them. At any time and from time to time after the occurrence and
during the continuance of an Event of Default, without demand or notice (any such demand or notice being expressly waived by Borrower), Lender may setoff the
same or any part thereof and apply the same to any Obligation or other
liability of Borrower to Lender, even though unmatured, irrespective of whether
or not Lender shall have made any demand under this Agreement or any other Loan
Document and regardless of the adequacy of any other collateral securing such
Obligations and liabilities. The rights of Lender under this Section 10.6 are in addition to other
rights and remedies
(including, without limitation, other rights of setoff) which
Lender may have.
Section 10.7 Governing
Law; Jurisdiction.
(a)
This Agreement and the other Loan Documents shall be construed
in accordance
with and governed by the laws
of the State of New York (excluding the laws applicable to conflicts or choice of law).
It is the express intention of Xxxxxx
and Borrower that the laws of the
State of New York (but not its conflict of laws rules) apply to the entirety of
the transactions evidenced by the Loan Documents.
(b)
Borrower hereby irrevocably submits,
for itself and its property,
to
the nonexclusive jurisdiction of any Delaware
State or United States
Federal court sitting
in the State of Delaware, and any appellate
court from any thereof, in any action
or proceeding
arising out
of or relating to this Agreement or
the other Loan Documents, or for recognition or
enforcement of any judgment, and Xxxxxxxx hereby irrevocably and
unconditionally agrees that all claims in respect to such action or proceeding
may be heard and determined in such Delaware State or Federal
court. Xxxxxxxx and Xxxxxx agree
that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
(c)
Nothing in this Section
10.7 shall affect
the right of Lender to serve
legal process in any other manner permitted
by law or affect any right that Lender may otherwise have to bring an action or
proceeding relating to this Agreement or the other Loan Documents against
Borrower or its properties in the courts of any jurisdiction.
Section 10.8 Entire Agreement,
Severability of Provisions.
(a)
This Agreement and the other
Loan Documents are intended by the
parties as the final, complete and exclusive
statement of the transactions
evidenced by this Agreement and the
other Loan Documents. All prior or contemporaneous promises, agreements and
understandings, whether oral or written, are deemed to be superseded by this
Agreement and the other Loan Documents, and no party is relying on any promise,
agreement or understanding not set forth in this Agreement and/or the other
Loan Documents. This Agreement and the other Loan Documents may not be amended
or modified except by a written instrument describing such amendment or
modification executed by Xxxxxxxx and Xxxxxx. Nothing in this Agreement or in
the other Loan Documents, express or implied, is intended to confer upon any party
other than the parties hereto and thereto, any rights, remedies, obligations
or liabilities under or by reason
of this Agreement or the
other Loan Documents.
(b)
If any one or more terms or provisions contained in this Agreement
or in any of the other Loan Documents or the application thereof to any circumstance shall, in any jurisdiction and to any extent,
be held invalid,
illegal or unenforceable, such terms or provisions shall be ineffective as to
such jurisdiction only to the extent of such invalidity, illegality or unenforceability without
invalidating or rendering
unenforceable the remaining terms and provisions hereof or
thereof or the application of such term or provision to circumstances other
than those as to which it is held invalid, illegal or unenforceable. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 10.9 Waivers.
(a)
Jury Waiver. BORROWER AND LENDER MUTUALLY
XXXXXX KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY
COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF LENDER RELATING TO THE ADMINISTRATION OF ANY OF THE LOANS OR
ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION
WITH ANY OTHER ACTION IN WHICH
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
(b)
Waiver of Consequential Damages,
Etc. TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, XXXXXXXX AND XXXXXX AGREE NOT TO ASSERT, AND HEREBY
WAIVE, ANY CLAIM AGAINST ONE ANOTHER,
ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION
WITH, OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY
AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, ANY LOAN OR THE USE OF THE PROCEEDS THEREOF. NO INDEMNITEE
SHALL BE LIABLE FOR AN DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF
ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH
TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN
CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 10.10 Survival of Agreement. All covenants, agreements, representations and
warranties made by Borrower in this Agreement
and in the certificates or other instruments prepared or delivered by it or on
its behalf in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by Xxxxxx and shall
survive the making by Lender of the Loans and delivery of this Agreement and
the other Loan Documents, regardless of any investigation made by Lender or on its behalf, and shall continue
in full force and effect as long as any Obligation is outstanding and so
long as the Commitments have not been terminated. The provisions of Sections [ ]Article I, and Article
X hereof shall survive
and remain operative
and in full force and effect regardless of the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of the Obligations, the expiration of the Revolving
Loan Commitment, the invalidity or unenforceability of any term or
provision of this Agreement or any other
Loan Document, or any investigation
made by or on behalf of Lender.
Section 10.11 Construction. Each covenant contained in Articles V, VI and VII of this
Agreement shall be construed (absent
an express contrary
provision therein) as being independent of each other covenant contained herein, and compliance with any one covenant
shall not (absent such an express
contrary provision) be deemed to
excuse compliance with any other
covenant.
Section 10.12 Captions. Article
and Section titles in the Loan Documents
are included for
convenience only and do not define,
limit, or describe
the scope of the provisions thereof.
Section 10.13 Counterparts. This Agreement may be executed
and delivered in any
number of counterparts
(and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute but one and the same agreement.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually
signed counterpart of this Agreement.
REMAINDER OF XXXX INTENTIONALLY LEFT BLANK THE NEXT
PAGE IS THE SIGNATURE PAGE
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ENERGEA GLOBAL LLC
By:
Name: Xxxxxxx Xxxxxxxxxxx
Title: Manager
By:
Name: Xxxxx Xxxxxxx
Title: Manager
ENERGEA PORTFOLIO 2 LLC
By:
Name: Xxxxxxx Xxxxxxxxxxx
Title: Manager
By:
Name: Xxxxx Xxxxxxx
Title: Manager
ENERGEA GERAÇÃO DISTRIBUÍDA DE ENERGIA DO BRASIL S.A.
By:
Name: Xxxxxxx Xxxxxxxxxxx
Title: Manager
By:
Name: Xxxxx Xxxxxxx
Title: Manager
LATTICE ENERGEA GLOBAL
REVOLVER I LLC
By:
Name: Xxxx Xxxxxx
Title: Partner
By:
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Partner
Schedule 4.12 Debt and Liens
N/A
Schedule 4.18 Environmental Matters
N/A
Schedule 4.22 Plans/Multiemployer Plans
N/A
Schedule 4.23 Insurance
Schedule 4.24(a) Owned Real Property
a.
Energea Portfolio 2 LLC: N/A
b.
Energea Geração
Distribuída de Energia
do Brasil S.A.:
N/A
c.
Energea Iguatama
Aluguel de Equipamentos e Manutenção Ltda.:
N/A
d.
Energea Pedra do Indaiá
Ltda.: N/A
e.
Energea Araxá
I Ltda.: N/A
f.
Energea Divinópolis Ltda.: N/A
g.
Energea Divinópolis II Ltda.: N/A
h.
Energea Micros I Ltda.: N/A
Schedule 4.24(b) Leased Real Property
|
Loan Party
|
Leased Real Property
|
Address
|
|
Energea Portfolio 2 LLC
|
N/A
|
N/A
|
|
Energea Geração Distribuída de Energia do Brasil S.A.
|
N/A
|
N/A
|
|
Energea Iguatama Aluguel de Equipamentos e Manutenção Ltda.
|
Surface Rights Agreement dated August
26, 2020, with Xxxxxxxx Xxxxxxxxx Xxxxxx
|
Property located in Iguatama/MG, registered under No. R-2-592.
|
|
Energea Pedra do Indaiá Ltda.
|
Surface Rights Deed,
dated September 16, 2022, with Agropecuária Tapera Ltda.
|
Property located in Pedra do Indaiá/MG, called "Fazenda Tapera", registered under No. 13.574.
|
|
Energea Araxá
I Ltda.
|
Lease Agreement dated February
18, 2022, with Jordelino Xxxx Xxxxxxxx Xxxx and Xxxxxxx Xxxxxxxx Xxxxxxxx.
|
Property located in Araxá/MG, called "Fazenda Córrego do Xxx",
registered under No. 46.242.
|
|
Energea Divinópolis Ltda.
|
Lease Agreement dated May 4, 2022, with Xxxxxxxx Xxxxxxxxx dos Xxxxxx.
|
Property Located at Divinopolis/MG,
called "Fazenda do Brejinho", registered under No. 25.533.
|
|
Energea Divinópolis II Ltda.
|
Lease
Agreement dated March 10, 2022, with
Xxxxxxx Xxxxxxxx and Xxxxx Xxxxx Xxxxx Xxxxxxxx.
|
Property Located in Divinopolis/MG, called "Córrego Sugo", registered under No. 25.462.
|
|
Energea Micros I Ltda. Xxxx
|
Xxxxx Agreement dated December 20, 2022 with Espólio de Paulo
Xxxxxxx Xxxxx xx Xxxxx Xxxxx.
|
Property
located in
Vassouras/RJ, called "Xxxxx Xxxxxx xx Xxxxxx", registered under No.
8.796.
|
|
Energea Micros I Ltda. Granja Bambu
|
Lease Agreement with Xxxxxxx Xxxxxxxxx Xxxxxx
e Espólio de Xxxxxxx Xxxxxxxxx xx Xxxxxxxxx
|
Property located in Vassouras/RJ, called "Xxxxx Xxxx", registered under No. 1.381.
|
|
Loan Party
|
Leased Real Property
|
Address
|
|
Energea Micros I Ltda. Granja Escola
|
Lease Agreement with Xxxxxxx Xxxxxxxxx Xxxxxx
e Espólio de Xxxxxxx Xxxxxxxxx xx Xxxxxxxxx
|
Property located in Vassouras/RJ, registered under No. 602.
|
|
Energea Micros I Ltda. Granja Platô
|
Lease Agreement with Xxxxxxxxx Xxxxxx Xxxxx
|
Property located in Paty dos Xxxxxxx/RJ, called "Imóvel Xxxx x Xxxxxx Mor", registered under No. 4.009.
|
|
Energea Micros
I Ltda.
Jurema I
|
Lease Agreement with Xxxx Xxxxxx Xxxxxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxxx Xxxxxxx
|
Property located in Paty dos Xxxxxxx/RJ, registered under No. 294
|
|
Energea Micros I Ltda. Xxxxxx XX
|
Lease Agreement with Xxxx Xxxxxx Xxxxxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxxx Xxxxxxx
|
Property located in Vassouras, called "Granja n
Número 35", registered under No. 10.995.
|
|
Energea Micros I Ltda. Xxxxx XX
|
Xxxxx Agreement with Xxxxxxxxx Xxxxxx Xxxxx
|
Property located in Petropolis/RJ,
called "Viuva Bastos", registered under No. 204
|
|
Energea Micros I Ltda. Xxxxx XXX
|
Xxxxx Agreement with Xxxxxxxxx Xxxxxx Xxxxx
|
Property located in Petropolis/RJ,
called "Viuva Bastos", registered under No. 204
|
|
Energea Micros I Ltda. Xxxxxxxx I
|
Lease Agreement with Xxxxxxxx xx Xxxxx Xxxxxxx
|
Property located in Paty dos Xxxxxxx/RJ, called "Fazenda São Luiz Boa Vista", registered under No. 3.950.
|
|
Energea Micros I Ltda. Xxxxxx I
|
Lease Agreement with Xxxxxx xx Xxxxx
Xxxxxx
|
Property Located in Paty dos Xxxxxxx/RJ, called "Viuva Bastos", registered under
No.
5.590.
|
|
Energea Micros I Ltda. Xxxxxx XXX
|
Lease Agreement with Xxxxxx xx Xxxxx
Xxxxxx and Xxxxxxx xx Xxxxx Xxxxxx
|
Property Located in Paty dos Xxxxxxx/RJ, called "Viuva Bastos", registered under
No.
5.591.
|
|
Loan Party
|
Leased Real Property
|
Address
|
|
Energea Micros I Ltda. Sapucaia I
|
Lease Agreement with Xxxxxx Xxxxxxx dos Xxxxxx Xxxxxx and Xxxxxxxxx Xxxxx xx Xxxxxxxx
|
Property located in Sapucaia/RJ,
called "Sitio Nossa Senhora xx Xxx", registered under No. 2.332.
|
Schedule 6.4
Approved Projects as of December 2023
|
No. Project
1. Iguatama, Brazil
|
Reference #
BRZ-IGU
|
Approval Date 10/9/2020
|
Approved Amount (US$)
$1,775,000.00
|
|
2.25
MW ac
2. Pedra
do Indaiá, Brazil
|
BRZ-PED
|
9/3/2021
|
$1,900,000.00
|
|
2.50
MW ac
3. Divinópolis, Brazil
|
BRZ-DIV
|
10/14/2022
|
$1,360,000.00
|
|
2.50
MW ac
4. Divinópolis III
|
BRZ-DIV-III
|
12/19/2023
|
$0
|
|
5. Araxa
I
|
BRZ-ARX
|
12/19/2023
|
$0
|
|
6.
|
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Beto
7.
|
BTO
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Granja
Bambu
8.
|
GBB
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Granja
Escola
9.
|
GES
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Granja
Platô
10.
|
GPT
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Jurema
I
11.
|
JM1
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Xxxxxx
XX
12.
|
JM2
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Xxxxx
XX
13.
|
KR2
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Xxxxx
III
14.
|
KR3
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Xxxxxxxx I
15.
|
RND
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Xxxxxx
I
16.
|
RS1
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Xxxxxx
III
17.
|
RS3
BRZ-MIC-
|
12/19/2023
|
$0
|
|
Micros I - Sapucaia I
|
SPC
|
|
|
Current
P2 Assets as of December
2023
|
Project Name
|
Status
|
kWdc kWac Budget $ CFADS
|
Balance $
|
|
|
Iguatama
Pedra do Indaiá Divinópolis II Divinópolis
III Araxá I
Araxá II Micros I - Beto
Micros I - Granja
Bambu
Micros I - Granja Escola
Micros I - Granja Platô Micros I - Jurema I
Micros I - Xxxxxx XX Micros I - Xxxxx XX Micros I - Xxxxx III Micros I - Xxxxxxxx I Micros I - Xxxxxx I Micros I - Xxxxxx III Micros I - Sapucaia I
Corumbaíba Xxxxxxxxxx Xxxxxxx I
Aparecida do Taboado
II
|
Operational
Under Construction
Under Construction
Under Construction
Contracted Backlog
Contracted Backlog
Operational
Operational
Operational
Operational Under Construction Under Construction
Operational Operational Operational Operational Operational Operational
|
2,547,52
2,706 2,250 7 48,281
4,188,31
3,000 2,500 7 56,908
3,463,05
2,971 2,500 0 59,427
3,165,78
3,125 2,500 9 60,232
3,642,65
3,125 2,500 3 58,980
3,669,09
3,125 2,500 4 59,070
100 75 82,702 14,682
100 75 82,614
100 75 82,590
100 75 69,508
100 75 82,795
100 75 82,903
100 75 83,362
100 75 82,580
100 75 82,804
100 75 82,614
100 75 82,773
100 75 82,749
3,141,76
3,125 2,500 8
3,480,92
3,125 2,500 3
3,529,67
3,125 2,500 2
3,458,94
3,125 2,500 8
|
||
|
942,927
|
||||
|
2,387,142
|
||||
|
3,354,525
|
||||
|
3,380,410
|
||||
|
2,900,886
|
||||
|
3,366,666
|
||||
|
3,405,081
|
||||
|
3,363,380
|
Schedule 6.15 - Affiliate Contracts
a.
Energea Portfolio 2 LLC: N/A
b.
Energea Geração
Distribuída de Energia
do Brasil S.A.:
N/A
c.
Energea Iguatama
Aluguel de Equipamentos e Manutenção Ltda.:
•
Equipment Rental
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea;
•
O&M Service
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea.
d.
Energea Pedra do Indaiá
Ltda.:
•
Equipment Rental
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea;
•
O&M Service
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea.
e.
Energea Araxá I Ltda.:
•
Equipment Rental
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea;
•
O&M Service
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea.
f.
Energea Divinópolis Ltda.:
•
Equipment Rental
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea;
•
O&M Service
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea.
g.
Energea Divinópolis II Ltda.:
•
Equipment Rental
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea;
•
O&M Service
Agreement with Consorcio
de Geração Compartilhada de Energia Eletrica Energea.
h.
Energea Micros I Ltda.: N/A
Schedule 7.1 Security Documents
A.
Security Documents.
(i)
As of (x) the Closing Date in accordance with Section 3.1(a),
(y) each Drawdown
Date for any Revolving Loan in accordance with Section
3.2(f), and (z) each Drawdown Date for any Term Loan in accordance with Section 3.3(e) of the Credit Agreement, Borrower shall, or shall
cause the applicable Loan Party to, execute
and deliver to Lender each Security Document
required hereunder not previously delivered as of such date.
(ii)
"Security Documents" means (i) the Security Agreements as defined in part B
below, (ii) the filings
contemplated in part C below,
(iii) each additional Loan Document necessary to grant Lender a perfected security interest in all
right, title, and interest of the
Loan Parties, in and to the
Collateral free of all other Liens thereon other than Permitted Liens, and (iv)
all authorizations, consents, approvals, licenses, leases, rulings,
permits, certifications, exemptions, submissions to or filings
for registration by or with any Governmental Authority that are necessary
in order to establish, protect,
preserve and perfect Lender's Lien on the Collateral.
B.
Security Agreements.
(i)
"Security Agreements" means, from time to time, the agreements required as
indicated in the
tables set forth below
in clause (ii).
(ii)
Each of Borrower and the Loan Parties shall be obligated to deliver fully executed
copies of the following to Lender on the dates set forth
below (as of each date, to the extent not
executed and delivered to Lender previously). References below to Approved Projects
refers to all Approved Projects as of the applicable date as
that list may be revised from time to time.
|
Date Required
|
Agreement
|
Granting Loan Party
|
Relevant Collateral
|
|
Second
Amendment Closing Date
|
Pledge Agreement
|
Borrower
|
All outstanding membership interests in [ ] owned by Xxxxxxxx
|
|
Closing Date
|
Fiduciary Lien over Shares
|
Xxxxxxx
Xxxx Xxxxxxxxxxx,
Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx Nether Xxxxxxxx Xxxxx
|
All outstanding equity interests
in Energea Geração Distribuída de Energia do Brasil S.A. ("Energea Brasil")
|
|
Closing Date
|
Fiduciary Assignment of Credit
Rights and Accounts Administration (one for each applicable Project SPE)
|
Energea Brasil and each Project SPE which owns an Approved Project
|
All receivables from Project Agreements, Insurance and balance/ investments on escrow account
|
|
Closing Date
|
Fiduciary Lien over Shares/Quotas (one for each
applicable Project SPE)
|
Shareholders of each applicable Project SPE
|
All outstanding equity interests
in any Project SPE that owns an Approved Project
|
|
Date Required
|
Agreement
|
Granting Loan Party
|
Relevant Collateral
|
|
Closing Date
|
Fiduciary Lien over Assets (one for each applicable Project SPE)
|
Each
Project SPE which owns an Approved Project
|
All equipment owned by each applicable Project SPE
|
|
Drawdown Date for Revolving Loan or Term Loan
|
Account Agreement for each Permitted Account
|
Each
Project SPE which owns an Approved Project
|
All security of deposit accounts of each applicable Project SPE
|
|
Drawdown Date for Revolving Loan or Term Loan
|
Any agreement set forth above not provided previously
|
As set forth
above, as applicable
|
As set forth
above, as applicable
|
C.
Filings and Instruments. Each of Borrower
and the Loan Parties shall be obligated
to make the following filings
and deliver to Lender fully-executed copies of the following on the dates set forth below (as of each
date, to the extent not executed and delivered to Lender previously).
References below to Approved Projects refers to all Approved Projects as of
the applicable date as that list may be revised from time to time.
|
Date Required
|
Filing/Instrument
|
Granting Loan Party
|
Relevant Collateral
|
|
Second
Amendment Closing Date
|
UCC-1 Filing
|
Borrower
|
All outstanding membership interest in Energea Iguatama Aluguel de Equipamentos e Manutenção Ltda., Energea Pedra do Indaiá Ltda., Energea Araxá I Ltda., Energea Divinópolis Ltda., Energea Divinópolis II Ltda., Energea Micros I Ltda. owned by Borrower.
|
|
Second
Amendment Closing Date
|
Undated, executed transfer instrument and certificate of membership interest
|
Borrower
|
All outstanding membership interest in Energea Iguatama Aluguel de Equipamentos e Manutenção Ltda., Energea Pedra do Indaiá Ltda., Energea Araxá I Ltda., Energea Divinópolis Ltda., Energea Divinópolis II Ltda., Energea Micros I Ltda. owned by Borrower
|
|
Drawdown Date for Revolving Loan or Term Loan
|
Assignment Notifications as to each Material Project Document for each Approved Project
|
Energea Brasil and each Project SPE which owns an Approved Project
|
Energea Brasil and each Project SPE which owns an Approved Project
|
|
5 Business Days
from the execution date of the Fiduciary Lien over Shares
|
Annotation of the Fiduciary Lien on Energea Brasil's registered Share Register
|
Xxxxxxx Xxxx Xxxxxxxxxxx, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx Nether Xxxxxxxx Xxxxx
|
All outstanding equity interests in Energea Brasil
|
|
10 days from the
|
Register before the
|
Xxxxxxx Xxxx
|
All outstanding equity
|
|
Date Required
|
Filing/Instrument
|
Granting Loan Party
|
Relevant Collateral
|
|
execution date of the
Fiduciary Lien over Shares
|
competent Registry of Titles and Deeds
|
Silvestrini, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxx Nether Xxxxxxxx Xxxxx
|
interests in Energea
Brasil
|
|
5 Business Days
from the execution date of the
|
Registered
amendment to the Articles of Association of the
|
Shareholders of each applicable Project SPE
|
All outstanding equity interests in any Project SPE that owns an
|
|
Fiduciary Lien over Shares/Quotas
|
Project SPE
|
|
Approved Project
|
|
10 days from the execution date of the Fiduciary Lien over Shares/Quotas
|
Register before the competent Registry of Titles and Deeds
|
Shareholders of each applicable Project SPE
|
All outstanding membership interest in any Project SPE that owns an Approved Project
|
|
10 days from the execution date of the Fiduciary Assignment of Credit Rights and Accounts Administration
|
Register before the competent Registry of Titles and Deeds
|
Energea Brasil and each Project SPE which owns an Approved Project
|
All receivables from Project Agreements, Insurance and balance/ investments on escrow account
|
|
10 days from the execution date of the Fiduciary Lien over Assets
|
Register before the competent Registry of Titles and Deeds
|
Each
Project SPE which owns an Approved Project
|
All equipment owned by the Project SPE that will be used in the construction of the Approved Project
|
|
Drawdown Date for Revolving Loan or Term
Loan relating to an Approved Project owned indirectly by Portfolio 1
|
UCC-1 Filing
|
Borrower
|
All outstanding membership interest in Portfolio 1 owned by Borrower
|
|
Drawdown Date for Revolving Loan or Term
Loan relating to an Approved Project owned indirectly by Portfolio 1
|
Undated, executed transfer instrument and certificate of membership interest
|
Borrower
|
All outstanding membership interest in Portfolio 1 owned by Xxxxxxxx
|
|
Drawdown Date for Revolving Loan or Term Loan
|
Any filing, notice or instrument set forth above not provided previously
|
As set forth
above, as applicable
|
As set forth
above, as applicable
|
Schedule A
Loan Documents
1.
Credit
Agreement dated October 5, 2020 among Prior
Borrower, New Borrower, Energea Brasil, and Lender, as amended by 1st Amendment to Credit
Agreement dated December 9, 2020
2. Revolving Loan Note dated
October 5, 2020 made by Prior Borrower
in favor of Xxxxxx
3. Term
Loan Note dated October 5, 2020 made by Prior Borrower in favor of Xxxxxx
4.
Amended
and Restated Pledge Agreement dated October 5, 2020 among Prior Borrower and
Lender*
5.
Warrant
to Purchase Class B Membership Interests dated October 5,
2020 issued by Prior Borrower to
Lender**
*To be
terminated.
**Agreement and related obligations retained by Xxxxx Xxxxxxxx and not being assumed by New Borrower.
