AMENDMENT NO. 2 TO CREDIT AND GUARANTY AGREEMENT AND WAIVER AGREEMENT

Exhibit 10.22

AMENDMENT NO. 2 TO CREDIT AND GUARANTY AGREEMENT AND WAIVER AGREEMENT

This AMENDMENT NO. 2 TO CREDIT AND GUARANTY AGREEMENT AND WAIVER AGREEMENT (this “Agreement”), dated as of March 10, 2014, is entered into by and among Pattern US Finance Company LLC, a Delaware limited liability company (“US Borrower”), Pattern Canada Finance Company ULC, a Nova Scotia unlimited company (“Canada Borrower” and together with US Borrower, the “Borrowers”), Royal Bank of Canada, acting through its New York Branch, as Administrative Agent under the Credit Agreement (the “Administrative Agent”), each of Royal Bank of Canada, acting through its New York branch (“RBC”), Bank of Montreal, Chicago branch (“BMO”), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A. (“MS”), and The Bank of Nova Scotia, London branch (“Scotiabank” and, together with RBC, BMO and MS, the “Lenders”), as Issuing Bank and Lender. The Borrowers, the Lenders and the Administrative Agent shall be referred to hereunder as the “Parties” and, individually, as a “Party.”

RECITALS

WHEREAS, the Borrowers and the Administrative Agent are party to that certain Credit and Guaranty Agreement, dated as of November 15, 2012 (the “Credit Agreement”), among the Borrowers, certain Subsidiaries of the Borrowers, the Lenders from time to time party thereto, Royal Bank of Canada (acting through its New York branch) as Administrative Agent, Royal Bank of Canada (acting through its New York branch) as Collateral Agent (the “Collateral Agent”), Royal Bank of Canada, Bank of Montreal and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A., each as Issuing Bank, Bank of Montreal, as Syndication Agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Documentation Agent, as amended by that certain Amendment Agreement, dated as of October 2, 2013.

WHEREAS, Ocotillo Wind Holdings LLC, a Delaware limited liability company (“Ocotillo Holdco”), and the Collateral Agent have entered into that certain Counterpart Agreement, dated as of March 10, 2014 (the “Counterpart Agreement”), pursuant to which Ocotillo Holdco became a Restricted Holding Company Subsidiary and Guarantor under the Credit Agreement and pledged its Collateral (as defined in the US Pledge and Security Agreement) to the Collateral Agent, and Ocotillo Express LLC, a Delaware limited liability company, became a Restricted Operating Company Subsidiary under the Credit Agreement;

WHEREAS, US Borrower, Canada Borrower, Scotiabank and Collateral Agent have entered into that certain Joinder Agreement, dated as of March 10, 2014 (the “Joinder Agreement”), pursuant to which Scotiabank became party to the Credit Agreement as an Additional Lender and provided Revolving Commitments in the amount of $25,000,000;

WHEREAS, any increase to the Revolving Commitments is subject to the satisfaction of certain conditions and requirements under Section 2.21 of the Credit Agreement, including the Specified Conditions (as defined in Section 4 of this Agreement); and

 

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WHEREAS, the Parties wish to amend the Credit Agreement to reflect certain technical changes to the Credit Agreement and to waive the Specified Conditions as a result of the transactions described above and the Parties agree that the amendments set forth in Section 3 of this Agreement and the waivers set forth in Section 4 of this Agreement each cure a defect or omission, resolve an ambiguity or inconsistency or reflect changes of a minor, technical or administrative nature in the Credit Agreement or are otherwise for the benefit of the Secured Parties.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

AGREEMENT

Section 1. Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the meanings assigned to such terms in the Credit Agreement, and the principles of interpretation set forth in Section 1.3 of the Credit Agreement shall apply herein.

Section 2. Effectiveness. The amendments and waivers in this Agreement shall be effective on the date when each of the following conditions have been satisfied: (i) the Parties hereto shall have executed and delivered this Agreement, (ii) the Joinder Agreement shall have been executed and delivered by the parties thereto, (iii) the Counterpart Agreement shall have been executed and delivered by the parties thereto, and (iv) Borrowers shall have paid all fees and expenses then due and payable to the Administrative Agent and Lenders under the Credit Documents (including reasonable attorneys’ fees in connection with this Agreement and the transactions contemplated herein).

Section 3. Amendment.

(a) The second recital of the Credit Agreement is hereby amended by deleting the phrase “one hundred twenty million Dollars ($120,000,000)” and replacing it with “one hundred forty-five million Dollars ($145,000,000)”.

(b) The definition of “Issuing Bank” in Section 1.1 of the Credit Agreement is hereby amended by amending and restating the last sentence of the definition of “Issuing Bank” as follows:

“As of March 10, 2014, each of Royal Bank, BMO, MSBNA and The Bank of Nova Scotia, London Branch shall be an Issuing Bank.”

(c) The definition of “PRHC” in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:

““PRHC” means Pattern Renewable Holdings Canada ULC, a Nova Scotia unlimited company, provided that, from and after giving effect to any Permitted Transfer or Permitted Restructuring Transaction, “PRHC” shall mean any permitted transferee or successor that owns one hundred (100%) of the Capital Stock of Canada Borrower.”

 

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(d) The definition of “Project” in Section 1.1 of the Credit Agreement is hereby amended by deleting the words “the Closing Date” in the last sentence of the first paragraph of the definition of “Project” and replacing them with the words “March 10, 2014” and by adding the following row to the end of the table contained in the definition of “Project”:

 

Wind Farm		Restricted Operating Company Subsidiary		Location		Nameplate Capacity (in MWs)		Restricted Holding Company Subsidiary
Ocotillo Wind Project		Ocotillo Express LLC (“Ocotillo”)		California		265		Ocotillo Wind Holdings LLC, a Delaware limited liability company

(e) The definition of “Large Restricted Operating Company Subsidiary” within the definition of “Restricted Operating Company Subsidiaries” in Section 1.1 of the Credit Agreement is hereby amended by adding the word “Ocotillo,” in the second sentence after the phrase “‘Large Restricted Operating Company Subsidiary’ means”.

(f) The definition of “Revolving Commitment” in Section 1.1 of the Credit Agreement is hereby amended by amending and restating the last sentence thereof as follows:

“The aggregate amount of the Revolving Commitments as of March 10, 2014 is one hundred forty five million Dollars ($145,000,000), which amount may be adjusted pursuant to Sections 2.10(b), 2.12(b), 2.21, 2.22(a)(1), 2.22(a)(2), 2.22(b)(iii)(1), 2.22(c)(iii), 2.22(e) or 6.18(c).

(g) Section 2.2(b)(i) is hereby amended by replacing the phrase “and third, BMO” with the phrase “third, BMO, and fourth, The Bank of Nova Scotia, London Branch”.

(h) Section 10.6(c) is hereby amended by deleting Section 10.6(c) in its entirety and replacing it as follows:

(c) Right to Assign. Each Lender shall have the right at any time to Transfer all or a portion of its rights and obligations under this Agreement, including all or a portion of its Revolving Commitment or Revolving Loans (including participations in L/C Obligations) or other Obligations owing to it, to any Person meeting the criteria of “Eligible Assignee” (subject to Section 10.6(g)) consented to by Borrowers (not to be unreasonably withheld, conditioned or delayed); provided that no consent of Borrowers shall be required (x) in the case of a Transfer to an Affiliate of a Lender, (y) if an Event of Default has occurred and is continuing or (z) in the case of any Lender, for a Transfer of any Revolving Loan and any Revolving Commitment to a Lender; provided that, Borrowers shall be deemed to have consented to such Transfer unless it shall object thereto by written notice to Administrative Agent within five (5) Business Days after having received written notice thereof. Notwithstanding the foregoing, if any Letter of Credit is outstanding, no Lender may Transfer its payment obligations, matured or contingent, owing to any Issuing Bank under Section 2.2(c)(ii) or with respect to L/C Advances under Section 2.2(c)(iii) unless (A) such Transfer is to another Lender or (B) each Issuing Bank has approved such Transfer (such approval not to be unreasonably withheld,

 

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conditioned or delayed); provided that each Issuing Bank shall be deemed to have consented to such Transfer unless it objects thereto by written notice to Administrative Agent and the assigning Lender within five (5) Business Days after having received written notice thereof.

(i) Appendix A to the Credit Agreement is hereby amended by deleting Appendix A in its entirety and replacing it with Appendix A attached to this Agreement.

(j) Appendix B to the Credit Agreement is hereby amended by deleting Appendix B in its entirety and replacing it with Appendix B attached to this Agreement.

(k) Schedule 1.1(b) to the Credit Agreement is hereby amended by deleting Schedule 1.1(b) in its entirety and replacing it with Schedule 1.1(b) attached to this Agreement.

(l) Schedule 4.1 to the Credit Agreement is hereby amended by deleting Schedule 4.1 in its entirety and replacing it with Schedule 4.1 attached to this Agreement.

(m) Schedule 4.2 to the Credit Agreement is hereby amended by deleting Schedule 4.2 in its entirety and replacing it with Schedule 4.2 attached to this Agreement.

(n) Exhibit A-3 to the Credit Agreement is hereby amended by including Scotiabank’s letter of credit application, in the form attached as Annex E to Exhibit A-3 hereto, as a new Annex E to such Exhibit A-3.

(o) Exhibit K to the Credit Agreement is hereby amended by deleting Exhibit K in its entirety and replacing it with Exhibit K attached to this Agreement.

Section 4. Waiver. In connection with the Additional Revolving Commitments to be provided by Scotiabank as an Additional Lender, the Administrative Agent, on behalf of the Lenders, hereby waives the following conditions and requirements under Section 2.21 of the Credit Agreement (collectively, the “Specified Conditions”):

(a) the requirement in Section 2.21(a) of the Credit Agreement that the date on which the Additional Revolving Commitments shall be effective shall be a date not less than ten (10) Business Days after the date on which the notice requesting such Additional Revolving Commitments is delivered to the Lenders; and

(b) the condition in Section 2.21(b)(10) of the Credit Agreement that the Project Waivers be amended to include Scotiabank in the proviso of subclause (a) of Section 4 therein.

Section 5. Miscellaneous.

(a) Limited Effect. Except as expressly provided herein, the execution, delivery, effectiveness and performance of this Agreement shall not operate as a waiver, amendment or modification of any right, power or remedy of the Borrowers, Administrative Agent, Collateral Agent, the Issuing Banks or the Lenders under the Credit Agreement and the other Credit Documents.

 

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(b) Reference to and Effect on Credit Documents. On and after the effective date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this Agreement and any subsequent amendment of the Credit Agreement. The Credit Agreement, as amended by this Agreement, and each of the other Credit Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Credit Parties under the Credit Documents, in each case, as amended by this Agreement and any subsequent amendment of the Credit Agreement. On and after the effectiveness of this Agreement, this Agreement shall for all purposes constitute a Credit Document.

(c) Governing Law, Etc. Sections 10.15, 10.16 and 10.17 of the Credit Agreement hereby are incorporated by reference as if fully set forth in this Agreement mutatis mutandis.

(d) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., “pdf” or “tif” shall be effective as delivery of an original executed counterpart of this Agreement.

(e) Severability. In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

(f) Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date and year first above written.

 

 

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				CREDIT AGREEMENT AMENDMENT NO. 2 (PATTERN REVOLVER)

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APPENDIX A

Appendix A to the Credit Agreement

[see attached]

 

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APPENDIX A

TO CREDIT AND GUARANTY AGREEMENT

Revolving Commitments

 

Lender		Revolving Commitment				Pro Rata Share
Royal Bank of Canada, acting through its New York Branch		$	40,000,000.00				27.6	%
Bank of Montreal, Chicago Branch		$	40,000,000.00				27.6	%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A.		$	40,000,000.00				27.6	%
The Bank of Nova Scotia, London Branch		$	25,000,000.00				17.2	%

 

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APPENDIX B

Appendix B to the Credit Agreement

[see attached]

 

				CREDIT AGREEMENT AMENDMENT NO. 2 (PATTERN REVOLVER)

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APPENDIX B

TO CREDIT AND GUARANTY AGREEMENT

Notice Addresses

CREDIT PARTIES:

Pattern US Finance Company LLC

Attention: General Counsel

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Pattern Canada Finance Company LLC

Attention: General Counsel

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Pattern Gulf Wind Equity LLC

Attention: General Counsel

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Nevada Wind Holdings LLC

Attention: General Counsel

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Santa ▇▇▇▇▇▇ Holdings LLC

Attention: General Counsel

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Hatchet Ridge Holdings LLC

Attention: General Counsel

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Pattern St. ▇▇▇▇▇▇ Holdings Inc.

Attention: General Counsel

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Ocotillo Wind Holdings LLC

Attention: General Counsel

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ADMINISTRATIVE AGENT, COLLATERAL AGENT AND ISSUING BANKS:

ADMINISTRATIVE AGENT AND COLLATERAL AGENT:

Royal Bank of Canada

Attention: Manager Agency Services

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ISSUING BANKS:

Royal Bank of Canada

Attention: Letters of Credit

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Bank of Montreal

Attn: Trade Finance Operations

Bank of Montreal - BMO ▇▇▇▇▇▇ Bank N.A.

Trade Finance Operations

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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A.

Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇

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The Bank of Nova Scotia, London Branch

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SCHEDULE 1.1(b)

Schedule 1.1(b) to the Credit Agreement

[see attached]

 

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Schedule 1.1(b)

Project PPAs

 

1.

Power Purchase and Sale Agreement, dated as of November 20, 2008, between Pacific Gas and Electric Company and Hatchet Ridge Wind, LLC, as amended by the Amendment Letter, dated as of March 30, 2009, between Pacific Gas and Electric Company and Hatchet Ridge Wind, LLC, as amended by the Amendment Letter, dated as of June 12, 2009, between Pacific Gas and Electric Company and Hatchet Ridge Wind, LLC.

 

2.	Power Purchase and Operating Agreement, dated as of June 11, 2010, between Puerto Rico Electric Power Authority and Pattern Santa ▇▇▇▇▇▇ LLC.

 

3.

Long-Term Firm Portfolio Energy Credit and Renewable Power Purchase Agreement, dated as of January 28, 2010, between Nevada Power Company (d/b/a NV Energy) and Spring Valley Wind LLC, as amended by the First Amendment to the Power Purchase Agreement between Nevada Power Company and Spring Valley Wind LLC, dated as of August 6, 2010, between Nevada Power Company (d/b/a NV Energy) and Spring Valley Wind LLC, as further amended by the Second Amendment to the Power Purchase Agreement between Nevada Power Company and Spring Valley Wind LLC, dated as of October 13, 2010, between Nevada Power Company (d/b/a NV Energy) and Spring Valley Wind LLC.

 

4.	Power Purchase Agreement for Wind Generated Energy (Power Supply Business Unit), dated as of March 18, 2010, between the Manitoba Hydro-Electric Board and St. ▇▇▇▇▇▇ Windfarm Inc.

 

5.

Power Purchase Agreement, dated as of February 1, 2011, between San Diego Gas & Electric Company and Ocotillo Express LLC, as amended by the First Amendment to Power Purchase Agreement, dated as of September 28, 2011, between San Diego Gas & Electric Company and Ocotillo Express LLC, as amended by the Second Amendment to Power Purchase Agreement, dated as of February 14, 2012, between San Diego Gas & Electric Company and Ocotillo Express LLC, as amended by the Third Amendment to Power Purchase Agreement, dated as of September 14, 2012, between San Diego Gas & Electric Company and Ocotillo Express LLC.

 

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SCHEDULE 4.1

Schedule 4.1 to the Credit Agreement

[see attached]

 

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Schedule 4.1

Jurisdictions of Organization

 

Credit Party		Jurisdiction of Organization
Pattern US Finance Company LLC		Delaware
Pattern Canada Finance Company ULC		Nova Scotia
Pattern Gulf Wind Equity LLC		Delaware
Nevada Wind Holdings LLC		Delaware
Santa ▇▇▇▇▇▇ Holdings LLC		Delaware
Pattern St. ▇▇▇▇▇▇ Holdings Inc.		Canada
Hatchet Ridge Holdings LLC		Delaware
Ocotillo Wind Holdings LLC		Delaware

 

Other Subsidiaries1		Jurisdiction of Organization
Pattern Gulf Wind Holdings LLC		Delaware

 

1	Not as a Credit Party, but solely for purposes of the representation in Section 4.1 of the Credit Agreement, to the extent required by Section 5.11 of the Credit Agreement.

 

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SCHEDULE 4.2

Schedule 4.2 to the Credit Agreement

[see attached]

 

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Schedule 4.2

Subsidiaries; Capital Stock and Ownership

 

Name of Subsidiary		Jurisdiction of Organization		Percentage and Class of Capital Stock Owned
Pattern Gulf Wind Equity LLC		Delaware		100% membership interest
Pattern Gulf Wind Holdings LLC		Delaware		60% Class B membership interest (52,808,314.8 Class B Units, approximately 29.5% of total outstanding membership interests)
Nevada Wind Holdings LLC		Delaware		100% membership interest
Santa ▇▇▇▇▇▇ Holdings LLC		Delaware		100% membership interest
Hatchet Ridge Holdings LLC		Delaware		100% membership interest
Ocotillo Wind Holdings LLC		Delaware		100% membership interest
Pattern St. ▇▇▇▇▇▇ Holdings Inc.		Canada		100% of outstanding shares (100 Common shares)
Pattern Gulf Wind LLC		Delaware		100% membership interest
Hatchet Ridge Wind, LLC		Delaware		100% membership interest
Spring Valley Wind LLC		Nevada		100% membership interest
Pattern Santa ▇▇▇▇▇▇ LLC		Delaware		100% membership interest
Ocotillo Express LLC		Delaware		100% membership interest
St. ▇▇▇▇▇▇ Windfarm Inc.		Canada		100% of outstanding shares (1,000,000 Common shares)

 

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ANNEX E to EXHIBIT A-3

Annex E to Exhibit A-3 of the Credit Agreement

[see attached]

 

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EXHIBIT K

Exhibit K to the Credit Agreement

[see attached]

 

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		EXHIBIT K TO CREDIT AND GUARANTY
		AGREEMENT

RESTRICTED SUBSIDIARIES

Restricted Holding Company Subsidiaries

US Restricted Holding Company Subsidiaries:

Pattern Gulf Wind Equity LLC

Hatchet Ridge Holdings LLC

Nevada Wind Holdings LLC

Santa ▇▇▇▇▇▇ Holdings LLC

Ocotillo Wind Holdings LLC

Canada Restricted Holding Company Subsidiaries:

Pattern St. ▇▇▇▇▇▇ Holdings Inc.

Restricted Operating Company Subsidiaries

US Restricted Operating Company Subsidiaries:

Pattern Gulf Wind LLC

Hatchet Ridge Wind, LLC

Spring Valley Wind LLC

Pattern Santa ▇▇▇▇▇▇ LLC

Ocotillo Express LLC

Canada Restricted Operating Company Subsidiaries:

St. ▇▇▇▇▇▇ Windfarm Inc.

 

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