CONSENT, WAIVER AND FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND SIXTH AMENDMENT TO AMENDED AND RESTATED CASH DIVERSION AND COMMITMENT FEE GUARANTY
[***] = Certain information contained in this document, marked by brackets, has been omitted because it is both not material and would be competitively harmful if publicly disclosed.
Exhibit 10.1
CONSENT, WAIVER AND FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
SIXTH AMENDMENT TO AMENDED AND RESTATED
CASH DIVERSION AND COMMITMENT FEE GUARANTY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
SIXTH AMENDMENT TO AMENDED AND RESTATED
CASH DIVERSION AND COMMITMENT FEE GUARANTY
This CONSENT, WAIVER AND FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND SIXTH AMENDMENT TO AMENDED AND RESTATED CASH DIVERSION AND COMMITMENT FEE GUARANTY, dated as of February 28, 2019 (this “Amendment”), is entered into among the undersigned in connection with (a) that certain Second Amended and Restated Credit Agreement, dated as of March 27, 2018, among Sunrun Hera Portfolio 2015-A, LLC, a Delaware limited liability company, as Borrower (the “Borrower”), the financial institutions as Lenders from time to time party thereto (the “Lenders”), and Investec Bank PLC, as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”) and as Issuing Bank (in such capacity, the “Issuing Bank”) (the “Credit Agreement” and as amended by this Amendment, the “Amended Credit Agreement”) and (b) the Cash Diversion and Commitment Fee Guaranty (as in effect prior to the date hereof, the “Guaranty” and as amended by this Amendment, the “Amended Guaranty”). Capitalized terms which are used but not otherwise defined herein shall have the meanings ascribed to such terms in the Amended Credit Agreement and the rules of construction set forth in Section 1.02 of the Credit Agreement apply to this Amendment.
W I T N E S S E T H
WHEREAS, the Borrower wishes to obtain, and the Administrative Agent and the Required Lenders wish to provide, consent to the acquisition by the Borrower of (a) Sunrun ▇▇▇▇▇▇▇ Manager 2019, LLC, a Delaware limited liability company and a Tax Equity Holdco and (b) Sunrun Cygnus Manager 2018 LLC, a Delaware limited liability company and a Tax Equity Holdco (such acquisitions, collectively, the “Tax Equity Holdco Acquisitions”); and
WHEREAS, the Borrower and the Sponsor also wish to make, and the undersigned also wish to agree to make, certain additional amendments to the Credit Agreement and the Guaranty as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
I.Amendments to the Credit Agreement. Subject to the satisfaction of the conditions set forth in Article V below, the following amendments to the Credit Agreement are hereby accepted and agreed by the parties hereto:
1. Amendment to Section 1.01. The following are hereby added as new defined terms to Section 1.01 of the Credit Agreement in the appropriate alphabetical order
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““Cygnus 2018 Purchase Agreement” shall mean that certain Master Purchase Agreement, dated as of November 30, 2018, entered into between Sponsor and Sunrun Cygnus Owner 2018, LLC.”
““▇▇▇▇▇▇▇ 2019 LLC Agreement” shall mean that certain Amended and Restated Operating Agreement of Sunrun ▇▇▇▇▇▇▇ Owner 2019, LLC, dated as of January 31, 2019, entered into by and between Sunrun ▇▇▇▇▇▇▇ Manager 2019, LLC and [***].”
““▇▇▇▇▇▇▇ 2019 Purchase Agreement” shall mean that certain Master Purchase Agreement, dated as of January 31, 2019, entered into between Sponsor and Sunrun ▇▇▇▇▇▇▇ Owner 2019, LLC.”
2. New Section 7.25. Article VII of the Credit Agreement is hereby amended by inserting the following as a new Section 7.25:
“The Borrower shall not cause or otherwise permit any [***] Project (as defined in the ▇▇▇▇▇▇▇ 2019 LLC Agreement or the Cygnus 2018 Purchase Agreement) to be treated as an Eligible Project.”
3. New Section 7.26. Article VII of the Credit Agreement is hereby amended by inserting the following as a new Section 26:
“The Borrower shall not cause or otherwise permit any New Home Project (as defined in the ▇▇▇▇▇▇▇ 2019 LLC Agreement) to be treated as an Eligible Project unless and until (i) such New Home Project has become a “Former New Home Project” (as defined in the ▇▇▇▇▇▇▇ 2019 LLC Agreement), (ii) such Former New Home Project meets the conditions set forth in the definition of “Eligible Project” and (iii) there has occurred an inspection of the residential structure or building associated with such New Home Project conducted by an official of the applicable Governmental Authority when such structure or building is completed and ready for occupancy.”
II. Amendment to the Cash Diversion and Commitment Fee Guaranty. Subject to the satisfaction of the conditions set forth in Article V below, the definition of “Cash Diversion” in Section 1.01 of the Guaranty is hereby amended by (replacing the period at the end of clause (ee) with the text”; and” and (ii) inserting the following as new clauses (ff) and (gg):
“(ff) if, for any quarterly period preceding a Calculation Date, expenses, including, without limitation, operations and maintenance expenses and payments under any production guarantee, incurred in connection with any and all [***] Projects (as defined in the ▇▇▇▇▇▇▇ 2019 LLC Agreement) exceed aggregate revenues from such [***] Projects, in the amount of such excess.
(gg) any [***] required to be made pursuant to Section 4.01(i)(v) of the Amended and Restated Limited Liability Company Agreement of Sunrun Cygnus
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Owner 2018, LLC, dated as of November 30, 2018, entered into by and between Sunrun Cygnus Manager 2018, LLC and [***] (the “Cygnus 2018 LLCA”).
III. Limited Consent. At the request of the Borrower and subject to the satisfaction of the conditions set forth in Article V below, the Administrative Agent and each of the undersigned Lenders hereby consents and agrees to the Tax Equity Holdco Acquisitions, for which consent of the Administrative Agent and the Required Lenders is required pursuant to Section 2.05(b)(iii) of the Amended Credit Agreement (the “Consent”). The Consent granted pursuant to this Article III is limited precisely as written and shall not extend to any other provision of the Credit Agreement or the Amended Credit Agreement.
IV. Limited Waiver. At the request of the Borrower and subject to the satisfaction of the conditions set forth in Article V below, each of the undersigned Lenders hereby agrees to waive solely for the purpose of the Borrowing to occur in February 2019 the requirement pursuant to Section 2.01(c) of the Credit Agreement to deliver a Borrowing Notice at least five (5) Business Days in advance of the proposed funding; provided that the Borrower delivers such Borrowing Notice at least three (3) Business Days in advance of the February 2019 funding date in accordance with Section 2.01(c) of the Credit Agreement (the “Waiver”).
V. Conditions Precedent to Effectiveness. The amendments contained in Articles I and II, the Consent contained in Article III and the Waiver contained in Article IV shall not be effective until the date (such date, the “Amendment Effective Date”) that:
1. the Administrative Agent shall have received copies of this Amendment executed by the Borrower, the Sponsor and the Required Lenders, and acknowledged by the Administrative Agent; and
2. the Borrower shall have paid all fees, costs and expenses of the Administrative Agent and the Lenders incurred in connection with the execution and delivery of this Amendment (including third-party fees and out-of-pocket expenses of the Lenders’ counsel and other advisors or consultants retained by the Administrative Agent).
VI. Representations and Warranties. Each of the Borrower and, as applicable, the Sponsor represents and warrants to each Agent and each Lender Party that the following statements are true, correct and complete in all respects as of the Amendment Effective Date:
1. Power and Authority; Authorization. Each of the Borrower and the Sponsor has all requisite power and authority to execute, deliver and perform its obligations under this Amendment and the Borrower has all requisite power and authority to perform its obligations under the Amended Credit Agreement and the Sponsor has all requisite power and authority to perform its obligations under the Amended Guaranty. Each of the Borrower and the Sponsor has duly authorized, executed and delivered this Amendment.
2. Enforceability. Each of this Amendment and the Amended Credit Agreement is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent that enforceability may be limited by (i) applicable bankruptcy,
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insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors’ rights, (ii) the effect of general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or (iii) implied covenants of good faith and fair dealing. Each of this Amendment and the Amended Guaranty is a legal, valid and binding obligation of the Sponsor, enforceable against the Sponsor in accordance with its terms, except to the extent that enforceability may be limited by (i) applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors’ rights, (ii) the effect of general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or (iii) implied covenants of good faith and fair dealing
3. Credit Agreement and Guaranty Representations and Warranties. Each of the representations and warranties set forth in the Credit Agreement (with respect to the Borrower) and the Guaranty (with respect to the Sponsor) is true and correct in all respects both before and after giving effect to this Amendment, except to the extent that any such representation and warranty relates solely to any earlier date, in which case such representation and warranty is true and correct in all respects as of such earlier date.
4. Defaults. No event has occurred or is continuing as of the date hereof, or will result from the transactions contemplated hereby as of the date hereof, that would constitute an Event of Default or a Default.
5. Cygnus 2018 [***]. (a) each of the conditions set forth in Section 4.06(t) of the Cygnus 2018 LLCA have been satisfied, (b) all PV Systems (as defined in the Cygnus 2018 LLCA) that are (or will be) owned, by Sunrun Cygnus Owner 2018, LLC are (or will be) insured under the [***] (as defined in the Cygnus 2018 LLCA), (c) all premiums required to be paid under the [***] with respect to the PV Systems that are owned by Sunrun Cygnus Owner 2018, LLC have been paid by Sponsor and (d) no further payments under the [***] will be required to continue the effectiveness of the [***] for any currently existing or any future PV Systems of Sunrun Cygnus Owner 2018, LLC.
VII. Limited Amendment and Waiver. Except as expressly set forth herein, this Amendment shall not, by implication or otherwise, limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the other Secured Parties under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document, and each of the Borrower and the Sponsor acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment. From and after the Amendment Effective Date, all references to (i) the Credit Agreement in any Loan Document shall, unless expressly provided otherwise, refer to the Amended Credit Agreement and (ii) the Guaranty in any Loan Document shall, unless expressly provided otherwise, refer to the Amended Guaranty.
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VIII. Miscellaneous.
1. Counterparts. This Amendment may be executed in one or more duplicate counterparts and by facsimile or other electronic delivery and by different parties on different counterparts, each of which shall constitute an original, but all of which shall constitute a single document and when signed by all of the parties listed below shall constitute a single binding document.
2. Severability. In case any one or more of the provisions contained in this Amendment should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision.
3. Governing Law, etc.. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK. The provisions in Sections 12.08(b) through (d) and Section 12.09 of the Amended Credit Agreement shall apply, mutatis mutandis, to this Amendment and the parties hereto.
4. Loan Document. This Amendment shall be deemed to be a Loan Document for all purposes of the Amended Credit Agreement and each other Loan Document.
5. Headings. Paragraph headings have been inserted in this Amendment as a matter of convenience for reference only and it is agreed that such paragraph headings are not a part of this Amendment and shall not be used in the interpretation of any provision of this Amendment.
6. Execution of Documents. The undersigned Lenders hereby authorize and instruct the Administrative Agent to execute and deliver this Amendment.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their duly authorized officers as of the day and year first above written.
SUNRUN HERA PORTFOLIO 2015-A, LLC,
as Borrower
By: Sunrun Hera Portfolio 2015-B, LLC
Its: Sole Member
By: Sunrun Hera Holdco 2015, LLC
Its: Sole Member
By: Sunrun Inc.
Its: Sole Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
INVESTEC BANK PLC,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorised Signatory
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorised Signatory
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
INVESTEC BANK PLC,
as Issuing Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorised Signatory
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorised Signatory
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
INVESTEC BANK PLC,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorised Signatory
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorised Signatory
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
SUNRUN GAIA PORTFOLIO 2016-A, LLC,
as Lender
By: Sunrun Gaia Holdco 2016, LLC
Its: Sole Member
By: Sunrun Inc.
Its: Sole Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
SUNTRUST BANK,
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
SILICON VALLEY BANK,
as Lender
By: /s/ Sayoji Goli
Name: Sayoji Goli
Title: Vice President
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
ABN AMRO CAPITAL USA LLC,
as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Director
By: /s/ Remco Jongkind
Name: Remco Jongkind
Title: Managing Director
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
ING CAPITAL LLC,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]
KEYBANK NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
[Signature Page to Consent and Fifth Amendment (2nd A&R AF Credit Agreement)]