Amendment No. 6 to Amended and Restated Credit Agreement (SLA)
Exhibit 10.1
Execution Final
Amendment No. 6 to Amended and Restated Credit Agreement
(SLA)
This Amendment No. 6 to Amended and Restated Credit Agreement (this “Amendment”), is dated as of September 18, 2020 (the “Effective Date”) among Sunnova EZ-Own Portfolio, LLC, a Delaware limited liability company (the “Borrower”), Sunnova SLA Management, LLC, a Delaware limited liability company, as manager (in such capacity, the “Manager”), Sunnova SLA Management, LLC, a Delaware limited liability company, as servicer (in such capacity, the “Servicer”), Sunnova Asset Portfolio 7 Holdings, LLC, a Delaware limited liability company (the “Seller”), the financial institutions parties hereto (each such financial institution (including any Conduit Lender), a “Lender” and collectively, the “Lenders”), each Funding Agent representing a group of Lenders party hereto (each a “Funding Agent” and, collectively, the “Funding Agents”), and Credit Suisse AG, New York Branch, as agent for the Lenders (in such capacity, the “Agent”).
Recitals:
WHEREAS, the Borrower, the Manager, the Servicer, the Seller, the Lenders, the Funding Agents, the Agent, ▇▇▇▇▇ Fargo Bank, National Association, as paying agent, and U.S. Bank National Association, as custodian, entered into the Amended and Restated Credit Agreement, dated as of March 27, 2019 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, in accordance with Section 10.2 of the Credit Agreement, the parties hereto desire to amend the Credit Agreement subject to the terms hereof;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, and for other good and adequate consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows (except as otherwise defined in this Amendment, terms defined in the Credit Agreement are used herein as defined therein):
Section 1.01. Amendments.
Subject to the satisfaction of the conditions precedent set forth in Section 2.01 below, the Credit Agreement shall be, and it hereby is, amended as follows:
(a) Clauses (xii) and (xvii) of the defined term “Excess Concentration Amount” appearing in Exhibit A of the Credit Agreement are hereby amended and restated in their respective entireties to read as follows:
(xii) The amount by which the aggregate Solar Loan Balance of all Eligible Solar Loans for which the Related Property is located in Puerto Rico exceeds (i) 30% of the Aggregate Solar Loan Balance during the Puerto Rico Step-Up Period and (ii) at all times thereafter, 20% of the Aggregate Solar Loan Balance, unless the Puerto Rico Facility closes on or before November 30, 2020,
then 25% of the Aggregate Solar Loan Balance from and after the date of such closing; plus
(xvii) the amount by which the aggregate Solar Loan Balance of all Eligible Solar Loans that are Substantial Stage Date Solar Loans or Final Stage Date Solar Loans exceeds (i) prior to November 30, 2020, 40% of the Aggregate Solar Loan Balance and (ii) thereafter, 35% of the Aggregate Solar Loan Balance; plus
(b) Each of the following defined terms appearing in Exhibit A of the Credit Agreement are hereby amended and restated in their respective entireties to read as follows:
“Hedge Requirements” shall mean the requirements of the Borrower to (a) within two (2) Business Days of each Borrowing Date, enter into forward-starting interest rate swap agreement with a Qualifying Hedge Counterparty at the then applicable Swap Rate and using an amortizing notional balance schedule that does not exceed 110.0% but is not less than 90.0% of the expected amortization schedule of the aggregate outstanding principal balance of the Loan Notes associated with the Advance made on such Borrowing Date and with an effective date as of the Scheduled Commitment Termination Date (unless the notional amount of such forward starting swaps previously entered into in connection with prior Advances is sufficient to satisfy such notional balance requirement) and (b) within two (2) Business Days of the occurrence of a Hedge Trigger Event and within two (2) Business Days of each Borrowing Date thereafter, enter into and maintain according to the provisions hereof (for the avoidance of doubt, including breakage or modification to remain within the required amortizing schedule) one or more (i) fixed-floating interest rate swap agreements at the then applicable Hedge Swap Rate or (ii) interest rate cap agreements for which the strike rate is not more than 1.75%, in each case of clauses (i) and (ii), (x) entered into with a Qualifying Hedge Counterparty and (y) using an amortizing notional balance schedule that does not exceed 110.0% but is not less than 90.0% of the expected amortization schedule of the aggregate outstanding principal balance of the Loan Notes associated with the Advance made on such date (unless the notional amount of such swap agreements previously entered into in connection with prior Advances is sufficient to satisfy such notional balance requirement). Each interest rate agreement entered into in accordance with clauses (a) and (b) above shall have floating rate payments with a designated maturity of one month, and be on terms and conditions and pursuant to such documentation as shall be reasonably acceptable to the Agent.
2
Notwithstanding the foregoing, the Borrower may enter into another type of derivative agreement in order to satisfy the Hedge Requirements that the Agent approves in writing prior to entering into such agreement.
“Puerto Rico Step-Up Period” shall mean the period from the Fifth Amendment Effective Date to the earlier to occur of (i) the closing date of the Puerto Rico Facility and (ii) October 31, 2020.
(c) Exhibit A of the Credit Agreement is hereby further amended by adding the following new defined term in the appropriate alphabetical sequence to read in its entirety as follows:
“Hedge Trigger Event” shall mean the earlier to occur of: (i) with respect to any Interest Accrual Period, LIBOR is greater than or equal to 1.00%; and (ii) the end of the Availability Period, other than by reason of the occurrence of the Scheduled Commitment Termination Date.
“Puerto Rico Facility” shall mean a solar loan warehouse revolving credit facility, entered into by, among others, Sunnova Asset Portfolio 8, LLC, as borrower, with one or more financial institutions, as lenders, available to finance Solar Loans for which the Related Property is located in Puerto Rico.
Section 2.01. Conditions Precedent to Effectiveness of Amendment.
The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions precedent:
(a) The Agent, the Borrower, the Manager, the Servicer, the Seller, and the Lenders shall have executed and delivered this Amendment; and
(b) The Agent shall have received the amendment fee set forth in Section 2.5(H) of the Credit Agreement.
Section 3.01. Representations and Warranties
Each of the Borrower, the Manager, the Servicer, and the Seller hereby represents and warrants to the Secured Parties that, after giving effect to this Amendment: (a) the representations and warranties set forth in each of the Transaction Documents by each of the Borrower, the Manager, the Servicer, and the Seller, as applicable, are true and correct in all material respects on and as of the date hereof, with the same effect as though made on and as of such date (except to the extent that any representation and warranty expressly relates to an earlier
3
date, then such earlier date), and (b) no Amortization Event, Event of Default, Potential Amortization Event or Potential Default has occurred and is continuing.
Section 4.01 References in all Transaction Documents.
To the extent any Transaction Document contains a provision that conflicts with the intent of this Amendment, the parties agree that the provisions herein shall govern.
Section 5.01. Counterparts.
This Amendment may be executed (by facsimile or otherwise) in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument.
Section 5.02. Governing Law.
This Amendment shall, in accordance with Section 5 1401 of the General Obligations Law of the State of New York, be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflicts of law principles thereof that would call for the application of the laws of any other jurisdiction.
Section 5.03. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this Amendment shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Amendment and shall in no way affect the validity or enforceability of the other provisions of this Amendment.
Section 5.04. Continuing Effect.
Except as expressly amended hereby, each Transaction Document shall continue in full force and effect in accordance with the provisions thereof and each Transaction Document is in all respects hereby ratified, confirmed and preserved.
Section 5.05. Successors and Assigns.
This Amendment shall be binding upon and inure to the benefit of the Borrower, the Paying Agent, the Custodian and the Agent and each Lender, and their respective successors and permitted assigns.
Section 5.06. No Bankruptcy Petition.
Each of the parties to this Amendment hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all outstanding indebtedness for
4
borrowed money of a Conduit Lender or any CS Conduit Lender, it will not institute against, or join any other Person in instituting against such Conduit Lender or CS Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States or of any other jurisdiction.
Each of the parties to this Amendment hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of each Loan Note, it will not institute against, or join any other Person in instituting against the Borrower any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. The provisions of this Section 5.06 shall survive the termination of this Amendment.
Section 5.07 Costs and Expenses.
The Borrower agrees to pay all costs and expenses in connection with the preparation, execution, delivery, filing, recording, administration, modification, amendment and/or waiver of this Amendment as required by Section 10.6 of the Credit Agreement.
[Signature pages follow]
5
In Witness Whereof, the parties hereto have caused this Amendment No. 6 to Amended and Restated Credit Agreement be executed and delivered as of the date first above written.
Sunnova EZ-Own Portfolio, LLC, as the Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General
Counsel and Secretary
Sunnova SLA Management, LLC,
as Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General
Counsel and Secretary
Sunnova Asset Portfolio 7 Holdings, LLC, as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General
Counsel and Secretary
Sunnova SLA Management, LLC,
as Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General
Counsel and Secretary
[Signature Page to Amendment No. 6 to Amended and Restated Credit Agreement]
Credit Suisse AG, New York Branch, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
Credit Suisse AG, Cayman Islands Branch, as a Committed Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
[Signature Page to Amendment No. 6 to Amended and Restated Credit Agreement]
Alpine Securitization LTD, as a Conduit Lender
By: Credit Suisse AG, New York Branch, as attorney-in-fact
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
[Signature Page to Amendment No. 6 to Amended and Restated Credit Agreement]