0001193125-19-189292.txt : 20190703 0001193125-19-189292.hdr.sgml : 20190703 20190703170624 ACCESSION NUMBER: 0001193125-19-189292 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 18 FILED AS OF DATE: 20190703 DATE AS OF CHANGE: 20190703 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Sunnova Energy International Inc. CENTRAL INDEX KEY: 0001772695 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-232393 FILM NUMBER: 19942533 BUSINESS ADDRESS: STREET 1: 20 GREENWAY PLAZA, SUITE 475 CITY: HOUSTON STATE: TX ZIP: 77046 BUSINESS PHONE: (281) 985-9900 MAIL ADDRESS: STREET 1: 20 GREENWAY PLAZA, SUITE 475 CITY: HOUSTON STATE: TX ZIP: 77046 S-1/A 1 d709190ds1a.htm S-1/A S-1/A

As filed with the Securities and Exchange Commission on July 3, 2019

Registration No. 333-232393

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 1

to

FORM S-1

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

Sunnova Energy International Inc.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   4931   30-1192746
(State or other jurisdiction of
incorporation or organization)
  (Primary Standard Industrial
Classification Code Number)
  (I.R.S. Employer
Identification Number)

20 East Greenway Plaza, Suite 475

Houston, Texas 77046

(281) 985-9904

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Walter A. Baker

Executive Vice President, General Counsel and Secretary

Sunnova Energy International Inc.

20 East Greenway Plaza, Suite 475

Houston, Texas 77046

(281) 985-9904

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Joshua Davidson

Travis J. Wofford

Baker Botts L.L.P.

910 Louisiana Street

Houston, TX 77002

(713) 229-1234

 

David P. Oelman

E. Ramey Layne

Vinson & Elkins L.L.P.

1001 Fannin Street

Houston, TX 77002

(713) 758-2222

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box:  ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☒

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


EXPLANATORY NOTE

This Amendment No. 1 is being filed for the purpose of filing Exhibits 3.1, 3.2, 4.2, 4.3, 4.4, 4.11, 5.1, 10.1, 10.2, 10.4, 10.6, 10.8, 10.10, 10.12, 10.27 and 23.1 to the Registration Statement (File No. 333-232393). No changes or additions are being made hereby to the Prospectus constituting Part I of the Registration Statement (not included herein) or to Items 13, 14 or 17 of Part II of this Registration Statement.


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.

The following table sets forth all expenses to be paid by the Registrant, other than underwriting discounts and commissions, upon the completion of this offering. All amounts shown are estimates except for the SEC registration fee, the FINRA filing fee and the NYSE listing fee.

 

    

Amount
to be
Paid

 

SEC registration fee

     $        *  

FINRA filing fee

             *  

NYSE listing fee

             *  

Printing and engraving expenses

             *  

Legal fees and expenses

             *  

Accounting fees and expenses

             *  

Transfer agent and registrar fees

             *  

Miscellaneous expenses

             *  
  

 

 

 

Total

     $        *  
  

 

 

 

 

*

To be filed by amendment.

ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

Section 145 of the DGCL provides that a corporation may indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. A similar standard is applicable in the case of derivative actions (i.e., actions by or in the right of the corporation), except that indemnification extends only to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation.

Our new amended and restated certificate of incorporation and bylaws will contain provisions that limit the liability of our directors and officers for monetary damages to the fullest extent permitted by the DGCL. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except liability:

 

   

for any breach of the director’s duty of loyalty to our company or our stockholders;

 

   

for any act or omission not in good faith or that involve intentional misconduct or knowing violation of law;

 

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under Section 174 of the DGCL regarding unlawful dividends and stock purchases; or

 

   

for any transaction from which the director derived an improper personal benefit.

Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or repeal. If the DGCL is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of our directors will be further limited to the greatest extent permitted by the DGCL.

We have entered into or will enter into separate indemnification agreements with each of our directors and officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also to provide for certain additional procedural protections. We believe that these agreements and insurance policies are necessary to attract and retain qualified individuals to serve as directors and executive officers.

These indemnification provisions and the indemnification agreements entered into between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933, as amended (Securities Act).

We intend to maintain liability insurance policies that indemnify our directors and officers against various liabilities, including certain liabilities under arising under the Securities Act and the Exchange Act, which may be incurred by them in their capacity as such.

The proposed form of underwriting agreement to be filed as Exhibit 1.1 to this registration statement will provide for indemnification by the underwriters of the Registrant and its officers and directors for certain liabilities arising under the Securities Act or otherwise.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling our company pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.

Since January 1, 2016, Sunnova Energy Corporation has issued the following unregistered securities. Sunnova Energy Corporation believed the offers, sales, and issuances of the below securities were exempt from registration under the Securities Act by virtue of Section 4(a)(2) of the Securities Act because the issuance of securities to the recipients did not involve a public offering, Section 3(a)(9) of the Securities Act because the issuance involved existing security holders exclusively where no commission or other remuneration was paid or given directly or indirectly for soliciting such exchange, or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions by an issuer pursuant to benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof.

Preferred Stock Issuances

In March 2016, we entered into a purchase and exchange agreement pursuant to which we issued an aggregate of 104,851,119 shares of our Series A convertible preferred stock between March 2016 and December 2017. Pursuant to that agreement, we issued 56,341,483 shares of Series A convertible preferred stock at a purchase price of approximately $5.32 per share for an aggregate purchase price of $300.0 million, we issued

 

II-2


13,514,630 shares of our Series A convertible preferred stock upon exchange of $72.0 million representing principal amount, PIK interest and make-whole amounts under the AP5H Mezzanine Facility and we issued 16,315,880 shares of our Series A convertible preferred stock upon exchange of all outstanding shares of Series A preferred stock and Series B preferred stock. For additional information on our Series A convertible preferred stock and the Capital Stock Conversions, please read the section entitled “Description of Our Capital Stock—Series A Convertible Preferred Stock” and “Corporate Reorganization.”

From November 2017 through January 2018, Sunnova Energy Corporation sold an aggregate of 10,723,861 shares of its Series B convertible preferred stock to accredited investors at a purchase price of $3.73 per share, for an aggregate purchase price of $40.0 million.

From March 2018 through November 2018, Sunnova Energy Corporation sold an aggregate of 30,344,827 shares of its Series C convertible preferred stock to accredited investors at a purchase price of $5.80 per share, for an aggregate purchase price of $176.0 million.

Exchanges of Preferred Stock

On March 16, 2016, all outstanding shares of Sunnova Energy Corporation’s Series A preferred stock and Series B preferred stock were exchanged for an aggregate of 16,315,880 newly issued shares of Sunnova Energy Corporation’s Series A convertible preferred stock.

On March 29, 2018, all outstanding shares of Sunnova Energy Corporation’s Series B convertible preferred stock were exchanged for an aggregate 11,112,285 newly issued shares of Sunnova Energy Corporation’s Series A convertible preferred stock.

Conversion of Preferred Stock to Common Stock

Immediately prior to or contemporaneously with the completion of this offering, the Registrant will issue                      shares of its common stock upon conversion of outstanding shares of convertible Series A preferred stock and Series C preferred stock.

Option Grants and Common Stock Issuances

Since January 1, 2016, Sunnova Energy Corporation has granted to its officers, employees and consultants options to purchase an aggregate of 13,744,791 shares of its common stock under its equity compensation plans at exercise prices ranging from approximately $5.33 to $11.64 per share.

Since January 1, 2016, Sunnova Energy Corporation has issued and sold to its officers, employees and consultants an aggregate of 54,918 shares of its common stock upon the exercise of options under its equity compensation plans at an exercise price of $0.79 per share, for aggregate consideration of approximately $50,000.

Senior Convertible Notes

On April 24, 2017, Sunnova Energy Corporation issued and sold an aggregate principal amount of $80.0 million of our 12.00% senior secured notes in a private placement to a total of three institutional accredited investors for an aggregate purchase price of $78.4 million. In May 2018 and January 2019, the terms of these senior secured notes were amended to extend the maturity date from October 2018 to January 2019 and from January 2019 to July 2019, respectively. In April 2019, the terms of the remaining $44.9 million aggregate principal amount of these senior secured notes were amended so that, among other things, (i) the interest rate on the notes decreased from 12.00% per annum to 9.50% per annum, (ii) the maturity date was extended from July 2019 to March 2021 and (iii) a conversion feature was added such that the notes will be convertible into common

 

II-3


stock, in full, following an initial public offering by us of at least $225.0 million in gross proceeds or, up to 50% of such notes will be convertible into common stock, following an initial public offering by us of less than $225.0 million in gross proceeds; provided that we have converted the full amount of the 2019 subordinated convertible note to equity in connection with this offering.

We expect that, immediately following the completion of this offering, and assuming gross proceeds to us from this offering of at least $225.0 million, the holders of the senior convertible notes, of which $44.9 million aggregate principal amount are currently outstanding, will exercise their right to convert all their notes into an aggregate shares of              common stock at an assumed conversion price equal to $         per share (which price is based on the mid-point of the price range set forth on the cover of this prospectus), plus a cash payment equal to accrued and unpaid cash and pay-in-kind interest to the date of conversion. To the extent any holders do not convert their notes, we will be obligated to redeem such notes at a price equal to par, plus a cash payment equal to accrued and unpaid cash and pay-in-kind interest to the date of redemption, together with an amount of cash equal to the IPO redemption premium. If the gross proceeds of this offering are less than $225 million, we will not be obligated (but may elect) to redeem more than 50% of any notes which the holders do not elect to convert, as long as the subordinated convertible note has converted into common stock in connection with this offering.

Subordinated Convertible Notes

In August 2017, Sunnova Energy Corporation issued a convertible note for $15.0 million to Energy Capital Partners, which is subordinated to Sunnova Energy Corporation’s senior secured notes, with a maturity date of the earlier of (a) the repayment of Sunnova Energy Corporation’s senior secured notes or (b) November 2018. This subordinated convertible note was terminated in October 2017.

In March 2018, Sunnova Energy Corporation issued a convertible note for $15.0 million to Energy Capital Partners, which is subordinated to Sunnova Energy Corporation’s senior convertible notes, with a maturity date of the earlier of (a) the repayment of Sunnova Energy Corporation’s senior convertible notes or (b) May 2019. In January 2019, the terms of this subordinated convertible note were amended to extend the maturity date from May 2019 to December 2019.

In June 2019, Sunnova Energy Corporation issued a subordinated convertible note for $15.0 million to certain of its existing stockholders, including Energy Capital Partners, which is subordinated to Sunnova Energy Corporation’s senior convertible notes and ranks equally with the 2019 subordinated convertible note, with a maturity date of the earlier of (a) the repayment of Sunnova Energy Corporation’s senior convertible notes or (b) December 2021.

We expect that, immediately prior to or contemporaneously with the completion of this offering, Energy Capital Partners will exercise its right to convert the principal amount of the subordinated convertible note plus any accrued and unpaid interest as of the date of conversion into shares of Series A convertible preferred stock, which in turn will convert into              shares of common stock in the Preferred Stock Conversions (assuming a conversion price equal to              $             per share and excluding the number of shares issuable for accrued and unpaid interest).

 

II-4


ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

The exhibits and financial statement schedules filed as part of this registration statement are as follows:

(a) Exhibits.

 

Exhibit
Number

  

Description

  1.1*    Form of Underwriting Agreement.
  3.1    Form of Second Amended and Restated Certificate of Incorporation of Sunnova Energy International Inc.
  3.2
  

Form of Second Amended and Restated Bylaws of Sunnova Energy International Inc.

  4.1*    Form of Common Stock Certificate.
  4.2    Form of Stockholders Agreement among Sunnova Energy International Inc. and certain holders of its capital stock, to be in effect upon the completion of this offering.
  4.3    Form of Second Amended and Restated Registration Rights Agreement among Sunnova Energy International Inc. and certain stockholders party thereto, to be in effect upon the completion of this offering.
  4.4    Form of Amended and Restated Piggyback Registration Rights Agreement among Sunnova Energy International Inc. and certain stockholders party thereto, to be in effect upon the completion of this offering.
  4.5#¥    Indenture, among Helios Issuer, LLC and Wells Fargo Bank, National Association, dated April 19, 2017.
  4.6#    Indenture, among Sunnova Energy Corporation and Wilmington Trust, National Association, dated April 24, 2017.
  4.7#¥    First Supplemental Indenture, among Sunnova Energy Corporation and Wilmington Trust, National Association, dated November 21, 2017.
  4.8#    Second Supplemental Indenture, among Sunnova Energy Corporation and Wilmington Trust, National Association, dated September 28, 2018.
  4.9#    Third Supplemental Indenture, among Sunnova Energy Corporation and Wilmington Trust, National Association, dated January 18, 2019.
  4.10#    Fourth Supplemental Indenture, among Sunnova Energy Corporation and Wilmington Trust, National Association, dated April 5, 2019.
  4.11    Fifth Supplemental Indenture, among Sunnova Energy Corporation and Wilmington Trust, National Association, dated June 26, 2019.
  4.12#¥    Indenture, among Sunnova Helios II Issuer, LLC and Wells Fargo Bank, National Association, dated November 8, 2018.
  4.13#¥    Indenture, among Sunnova RAYS I Issuer, LLC and Wilmington Trust, National Association, dated March 28, 2019.
  4.14#¥    Indenture Supplement No. 1, among Sunnova RAYS I Issuer, LLC and Wilmington Trust, National Association, dated March 28, 2019.
  4.15#¥    Indenture Supplement No. 2, among Sunnova RAYS I Issuer, LLC and Wilmington Trust, National Association, dated June 7, 2019.
  4.16#¥
   Indenture, among Sunnova Helios III Issuer, LLC and Wells Fargo Bank, National Association, dated June 27, 2019.

 

II-5


Exhibit
Number

  

Description

  5.1    Form of Opinion of Baker Botts L.L.P. as to the legality of the securities being registered.
10.1¥    Note Purchase Agreement, among Sunnova RAYS I Issuer, LLC, Sunnova RAYS I Depositor, LLC, Sunnova RAYS I Management, LLC, and the Purchasers named therein, dated March 28, 2019.
10.2¥    Note Purchase Agreement Supplement No. 1, among Sunnova RAYS I Issuer, LLC, Sunnova RAYS I Depositor, LLC, Sunnova RAYS I Management LLC, and the Purchasers named therein, dated March  28, 2019.
10.3#¥    Note Purchase Agreement Supplement No. 2 and Amendment among Sunnova RAYS I Issuer, LLC, Sunnova RAYS I Depositor, LLC, Sunnova RAYS I Management LLC, and the Purchasers named therein, dated June 7, 2019.
10.4¥    Amended and Restated Credit Agreement, among Sunnova Asset Portfolio 4, LLC, Texas Capital Bank, Viewpoint Bank, National Association, and the Lenders from time to time party thereto, dated June 28, 2019.
10.5#¥    Amended and Restated Credit Agreement, among Sunnova LAP Holdings, LLC, Sunnova LAP I, LLC, Sunnova LAP II, LLC, Sunnova SSA Management, LLC, Sunnova Asset Portfolio 7 Holdings, LLC, Credit Suisse AG, New York Branch, Wells Fargo Bank, National Association, U.S. Bank National Association, the Funding Agents from time to time party thereto, and the Lenders from time to time a party thereto, dated November 8, 2018.
10.6    Amended and Restated Limited Performance Guaranty, among Sunnova Energy Corporation, Sunnova LAP Holdings, LLC, Sunnova LAP I, LLC, Sunnova LAP II, LLC, and Credit Suisse AG, New York Branch, dated June 27, 2019.
10.7#¥    Amended and Restated Credit Agreement, among Sunnova EZ-Own Portfolio, LLC, Sunnova SLA Management, LLC, Sunnova Asset Portfolio 7 Holdings, LLC, Credit Suisse AS, New York Branch, Wells Fargo Bank, National Association, U.S. Bank National Association, the Funding Agents from time to time party thereto, and the Lenders from time to time party thereto, dated March 27, 2019.
10.8    Third Amended and Restated Limited Performance Guaranty among Sunnova Energy Corporation, Sunnova EZ-Own Portfolio, LLC, and Credit Suisse AG, New York Branch, dated June 27, 2019.
10.9#¥    Amended and Restated Credit Agreement, among Sunnova TEP II Holdings, LLC, Sunnova TE Management II, LLC, Credit Suisse AG, New York Branch, the Funding Agents from time to time party thereto, and the Lenders from time to time party thereto, dated March 29, 2019.
10.10    Amended and Restated Parent Guaranty among Sunnova Energy Corporation, Sunnova TEP II Holdings, LLC, and Credit Suisse AG, New York Branch, dated June 27, 2019.
10.11#¥    Subordinated Convertible Promissory Note by Sunnova Energy Corporation, dated March 12, 2018.
10.12¥    Subordinated Convertible Promissory Note by Sunnova Energy Corporation, dated June 28, 2019.
10.13#    Office Building Lease Agreement, between Sunnova Energy Corporation and 20 Greenway Plaza LLC, dated August 29, 2014, for 42,238 square feet of office space known as Suites 350, 475, and 750 of the building located at 20 East Greenway Plaza, Houston, Texas 77046.
10.14#    Amendment No. 1 to Office Building Lease Agreement, between Sunnova Energy Corporation and 20 Greenway Plaza LLC, dated as dated May 18, 2015.
10.15#    Amendment No. 2 to Office Building Lease Agreement, between Sunnova Energy Corporation and 20  Greenway Plaza LLC, dated June 1, 2015.
10.16#    Amendment No. 3 to Office Building Lease Agreement, between Sunnova Energy Corporation and 20 Greenway Plaza LLC, dated November 15, 2018.

 

II-6


Exhibit
Number

  

Description

10.17#    Amendment No. 4 to Office Building Lease Agreement, between Sunnova Energy Corporation and 20 Greenway Plaza LLC, dated May 7, 2019.
10.18#+    2013 Stock Option Plan, dated December 20, 2013.
10.19#+    Amendment No. 1 to 2013 Stock Option Plan, dated March 16, 2016.
10.20#+    Stock Option Plan, dated March 16, 2016 and option agreements issued thereunder.
10.21#+    First Amendment to Stock Option Plan, dated March 15, 2016 and option agreements issued thereunder.
10.22#+    2019 Long-Term Incentive Plan by and between Sunnova Energy International Inc. and certain of its employees and directors.
10.23#+    Form of Restricted Stock Unit Award Letter.
10.24#+    Form of Option Award Letter.
10.25#+    Form of Restricted Stock Unit Award Letter for Non-Employee Director.
10.26#+    Form of Executive Severance Agreement.
10.27    Form of Indemnification Agreement.
21.1#    List of subsidiaries of the Registrant.
23.1    Consent of Baker Botts L.L.P. (included in Exhibit 5.1).
23.2#    Consent of PricewaterhouseCoopers LLP.
23.3#    Consent of PricewaterhouseCoopers LLP.
24.1#    Powers of Attorney (see the signature page to this Registration Statement on Form S-1).

 

*

To be filed by amendment.

+

Indicates management contract or compensatory plan.

¥

Portions of this exhibit have been omitted.

#

Previously filed.

(b) Financial Statement Schedules.

All financial statement schedules are omitted because the information called for is not required or is shown either in the consolidated financial statements or in the notes thereto.

ITEM 17. UNDERTAKINGS.

The undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the

 

II-7


Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The undersigned Registrant hereby undertakes that:

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-8


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this registration statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in Houston, Texas, on the 3rd day of July, 2019.

 

SUNNOVA ENERGY INTERNATIONAL INC.
By:   /s/ William J. Berger
 

William J. Berger

  Chairman of the Board, President and Chief Executive Officer

 

II-9


Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

  

Title

  

Date

/s/ William J. Berger

William J. Berger

   Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer)    July 3, 2019

/s/ Robert L. Lane

Robert L. Lane

   Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)    July 3, 2019

*

Rahman D’Argenio

  

Director

   July 3, 2019

*

Matthew DeNichilo

  

Director

   July 3, 2019

*

Doug Kimmelman

  

Director

   July 3, 2019

*

Mark Longstreth

  

Director

   July 3, 2019

*

Michael C. Morgan

  

Director

   July 3, 2019

*

C. Park Shaper

  

Director

   July 3, 2019

*

Scott D. Steimer

  

Director

   July 3, 2019

/s/ William J. Berger

William J. Berger

  

As Attorney-in-fact

   July 3, 2019

 

*

William J. Berger hereby signs this Amendment No. 1 to the Registration Statement on behalf of the indicated person for whom he is attorney-in-fact pursuant to powers of attorney previously included with the Registration Statement on Form S-1 of Sunnova International Inc. filed on June 27, 2019 with the Securities and Exchange Commission.

 

II-10

EX-3.1 2 d709190dex31.htm EX-3.1 EX-3.1

Exhibit 3.1

FORM OF SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

SUNNOVA ENERGY INTERNATIONAL INC.

Sunnova Energy International Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:

1. The name of this corporation is Sunnova Energy International Inc. The date of the filing of its original certificate of incorporation with the Secretary of State of the State of Delaware was April 1, 2019.

2. This Amended and Restated Certificate of Incorporation, which restates, integrates and further amends the certificate of incorporation of this corporation as heretofore amended and restated, has been declared advisable by the Board of Directors of the Corporation (the “Board”), duly adopted by the corporation in accordance with Sections 242 and 245 of the DGCL and has been adopted by the requisite vote of the stockholders of the corporation, acting by written consent in lieu of a meeting in accordance with Section 228 of the DGCL.

3. The certificate of incorporation of this corporation is hereby amended and restated in its entirety to read as follows:

ARTICLE I

The name of the corporation is “Sunnova Energy International Inc.” (hereinafter called the “Corporation”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.

ARTICLE III

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware or any applicable successor act thereto, as the same may be amended from time to time (the “DGCL”).

ARTICLE IV

(A) Classes of Stock. The total number of shares of all classes of capital stock that the Corporation is authorized to issue is              shares, which shall be divided into two classes of stock to be designated “Common Stock” and “Preferred Stock”. The total number of shares of Common Stock that the Corporation is authorized to issue is              shares, par value $0.0001 per share. The total number of shares of Preferred Stock that the Corporation is authorized to issue is              shares, par value $0.0001 per share. Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of any of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding)

 

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by the affirmative vote of the holders of a majority in voting power of the outstanding shares of stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or Preferred Stock voting separately as a class shall be required therefor.

(B) Common Stock. The powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions of the Common Stock are as follows:

1. Ranking. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any series as may be designated by the Board of Directors of the Corporation (the “Board”) upon any issuance of the Preferred Stock of any series.

2. Voting. Except as otherwise provided by law or by the resolution or resolutions providing for the issue of any series of Preferred Stock, the holders of outstanding shares of Common Stock shall have the exclusive right to vote for the election and removal of directors and for all other purposes. Notwithstanding any other provision of this Amended and Restated Certificate of Incorporation (as the same may be amended and/or restated from time to time, including the terms of any Preferred Stock Designation (as defined below), this “Certificate of Incorporation”) to the contrary, the holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) or the DGCL.

3. Dividends. Subject to the rights of the holders of Preferred Stock, holders of shares of Common Stock shall be entitled to receive such dividends and distributions and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board from time to time out of assets or funds of the Corporation legally available therefor.

4. Liquidation. Subject to the rights of the holders of Preferred Stock, shares of Common Stock shall be entitled to receive the assets and funds of the Corporation available for distribution in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary. A liquidation, dissolution or winding up of the affairs of the Corporation, as such terms are used in this Section B(4), shall not be deemed to be occasioned by or to include any consolidation or merger of the Corporation with or into any other person or a sale, lease, exchange or conveyance of all or a part of its assets.

(C) Preferred Stock.

Shares of Preferred Stock may be issued from time to time in one or more series. The Board is hereby authorized to provide by resolution or resolutions from time to time for the issuance, out of the unissued shares of Preferred Stock, of one or more series of Preferred Stock, without stockholder approval, by filing a certificate pursuant to the applicable law of the State of Delaware (the “Preferred Stock Designation”), setting forth such resolution and, with respect to each such series, establishing the number of shares to be included in such series, and fixing the voting powers, full or limited, or no voting power of the shares of such series, and the designations and powers, preferences, privileges and relative, participating, optional or other special rights, if any, of the shares of each such series and any qualifications, limitations or restrictions thereof.

 

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The designations and powers, preferences, privileges and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, the determination of the following:

1. the designation of the series, which may be by distinguishing number, letter or title;

2. the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);

3. the dividend rate, whether dividends are payable or issuable in cash, stock of the Corporation or other property, the conditions upon which and the times when such dividends are payable or issuable, the preference to or the relation to the payment or issuance of dividends payable or issuable on any other class(es) or series of stock, whether such dividends shall be cumulative or noncumulative, and if cumulative, the date or dates from which such dividends shall cumulate, and whether such dividends shall be compounded and if so the rate of such compounding;

4. the dates on which dividends, if any, shall be payable;

5. whether the shares of any series shall be redeemable at the option of the Corporation or the holders thereof or upon the happening of any specified event, and, if redeemable, the redemption price or prices (which may be payable or issuable in the form of cash, notes, securities or other property), and the time or times at which, and the terms and conditions upon which, such shares shall be redeemable and the manner of redemption;

6. the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of the series;

7. the amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of, or upon any distribution of the assets of, the Corporation;

8. whether the shares of the series shall be convertible into or exchangeable for, shares of any other class(es) or series, or any other security or other property, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices, ratio or ratios or rate or rates at which such conversion or exchange may be made, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;

9. restrictions on the issuance of shares of the same series or any other class or series;

10. whether the series is to have voting powers, full, special or limited, whether generally or upon specified events, or is to be without voting powers, and whether such series is to be entitled to vote as a separate series either alone or together with the holders of one or more other classes or series of stock; and

 

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11. any other designations and powers, preferences, privileges and relative, participating, optional or other special rights of each series of Preferred Stock, and any qualifications, limitations or restrictions thereof, all as may be determined from time to time by the Board and stated in the resolution or resolutions providing for the issuance of such Preferred Stock.

Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law.

ARTICLE V

This Article V is inserted for the management of the business and for the conduct of the affairs of the Corporation.

(A) General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as otherwise provided by law.

(B) Number of Directors; Election of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors, the number of the directors of the Corporation shall be fixed from time to time exclusively pursuant to a resolution adopted by the affirmative vote of a majority of the Whole Board. “Whole Board” shall mean the total number of authorized directors whether or not there exist any vacancies or unfilled seats in previously authorized directorships (provided for the avoidance of doubt that voting power shall be attributed to any such vacancies or unfilled seats).

(C) Classes of Directors. Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one third of the total number of directors constituting the entire Board. The Board is authorized to assign members of the Board already in office to Class I, Class II or Class III at the time such classification becomes effective.

(D) Terms of Office. Subject to the rights of holders of any series of Preferred Stock to elect directors pursuant to this Certificate of Incorporation (including any Preferred Stock Designation hereunder), each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders at which such director was elected; provided that each director initially assigned to Class I shall serve for a term expiring at the Corporation’s first annual meeting of stockholders held following the time at which the initial classification of the Board becomes effective; each director initially assigned to Class II shall serve for a term expiring at the Corporation’s second annual meeting of stockholders held following the time at which the initial classification of the Board becomes effective; and each director initially assigned to Class III shall serve for a term expiring at the Corporation’s third annual meeting of stockholders held following the time at which the initial classification of the Board becomes effective; provided further, that the term of each director shall continue until the election and qualification of his or her successor and be subject to his or her earlier death, disqualification, resignation or removal. The annual meeting of stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held on such date, and at such time as the Board of Directors shall fix.

 

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(E) Quorum. The greater of (1) a majority of the directors at any time in office and (2) one-third of the number of directors fixed pursuant to Section B of this Article V shall constitute a quorum of the Board of Directors. If at any meeting of the Board of Directors there shall be less than such a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present

(F) Vacancies. Subject to applicable law and the rights of holders of any series of Preferred Stock pursuant to this Certificate of Incorporation (including any Preferred Stock Designation hereunder), any newly created directorship that results from an increase in the number of directors or any vacancy on the Board that results from the death, disability, resignation, disqualification or removal of any director or from any other cause shall be filled solely by the affirmative vote of a majority of the total number of directors then in office, even if less than a quorum, or by a sole remaining director, and shall not be filled by the stockholders. Any director elected in accordance with the preceding sentence shall, in the case of a newly created directorship, hold office for the full term of the class in which the newly created directorship was created or, in the case of a vacancy, hold office for the remaining term of his or her predecessor and in each case until his or her successor shall be elected and qualified, subject to his or her earlier death, disqualification, resignation or removal. No decrease in the number of authorized directors constituting the Board shall shorten the term of any incumbent director.

(G) Removal. Subject to the rights of the holders of any series of Preferred Stock, if any, to elect additional directors pursuant to this Certificate of Incorporation (including any Preferred Stock Designation hereunder), any director or the entire Board may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of shares representing at least sixty-six and two-thirds percent (66-2/3%) of the votes which all the stockholders would be entitled to cast in the election of directors generally, voting together as a single class and acting at a duly held meeting of the stockholders in accordance with the DGCL, this Restated Certificate of Incorporation and the Bylaws.

(H) Stockholder Nominations and Introduction of Business. Advance notice of stockholder nominations for election of directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the Bylaws.

(I) Preferred Stock Directors. During any period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant to the provisions of Article IV hereof or any Preferred Stock Designation, then upon commencement and for the duration of the period during which such right continues: (1) the then otherwise total number of authorized directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions, and (2) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his earlier death, disqualification, resignation or removal. Except as otherwise provided for or fixed pursuant to the provisions of Article IV hereof or any Preferred Stock Designation, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate and the total authorized number of directors of the Corporation shall be reduced accordingly.

 

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ARTICLE VI

Unless and except to the extent that the Bylaws shall so require, the election of directors of the Corporation need not be by written ballot.

ARTICLE VII

To the fullest extent permitted by the DGCL as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that nothing contained in this Article VII shall eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to the provisions of Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. In addition to the circumstances in which a director of the Corporation is not personally liable as set forth in the preceding sentence, if the DGCL is amended to permit further elimination or limitation of the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended. No amendment, alteration, change or repeal of this Article VII or adoption of any other provision of this Certificate of Incorporation shall apply to or have any adverse effect on any right or protection of, or any limitation of the liability of, a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such amendment, alteration, change, repeal or adoption.

ARTICLE VIII

The Corporation may indemnify, and advance expenses to, to the fullest extent permitted by law, any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (and any other persons to which applicable law permits the Company to provide indemnification).

ARTICLE IX

Subject to the terms of any series of Preferred Stock with respect to such series, any action required or permitted to be taken by the stockholders of the Corporation must be taken at a duly held annual or special meeting of the stockholders and may not be taken or otherwise effected by any consent in writing in lieu of a meeting of such stockholders.

ARTICLE X

Special meetings of stockholders for any purpose or purposes may be called at any time by the Whole Board, the Chairman of the Board or the Chief Executive Officer of the Corporation, and may not be called by another other person or persons. The Board shall fix the date, time and place, if any, of such special meeting. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. The Board may postpone, recess, reschedule or cancel any previously scheduled special meeting of stockholders.

 

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ARTICLE XI

The Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the DGCL may be added or inserted, in any manner now or hereafter provided by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right of the Corporation reserved in this Article XI. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) in voting power of the stock of the Corporation entitled to vote thereon shall be required to amend, alter, change or repeal, or adopt any provision inconsistent with, any of Article V, Article VII, Article VIII, Article IX, Article X, Article XII, Article XIII, and this sentence of this Certificate of Incorporation, or in each case, the definition of any capitalized terms used therein or any successor provision (including, without limitation, any such article or section as renumbered as a result of any amendment, alteration, change, repeal or adoption of any other provision of this Certificate of Incorporation). Any amendment, repeal or modification of any of Article VII, Article VIII and this sentence shall not adversely affect any right or protection of any person existing thereunder with respect to any act or omission occurring prior to such repeal or modification.

ARTICLE XII

In furtherance and not in limitation of the powers conferred upon it by law, the Board is expressly authorized and empowered to adopt, amend and repeal the Bylaws by the affirmative vote of a majority of the Whole Board or by written consent. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the Bylaws may also be amended, altered or repealed and new Bylaws may be adopted by the stockholders of the Corporation only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) in voting power of the outstanding stock of the Corporation entitled to vote thereon. No bylaws hereafter made or adopted, nor any repeal of or amendment thereto, shall invalidate any prior act of the Board that was valid at the time it was taken.

ARTICLE XIII

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for: (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, agent or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim against the Corporation, its directors, officers or employees or agents arising pursuant to any provision of the DGCL, this

 

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Certificate of Incorporation or the Bylaws, or (d) any action as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (e) any action governed by the internal affairs doctrine. This Article XIII shall not apply to suits brought to enforce a duty or liability created by the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts have exclusive jurisdiction.

To the fullest extent permitted by applicable law, the federal district courts of the United States will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act, subject to and contingent upon a final adjudication in the State of Delaware of the enforceability of this provision.

To the fullest extent permitted by applicable law, any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XIII.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed this     day of                     , 2019.

 

SUNNOVA ENERGY INTERNATIONAL INC.
By:  

 

Name:   William J. Berger
Title:   Chief Executive Officer

[Signature Page to Certificate of Incorporation]

EX-3.2 3 d709190dex32.htm EX-3.2 EX-3.2

Exhibit 3.2

FORM OF SECOND AMENDED AND RESTATED BYLAWS

OF

SUNNOVA ENERGY INTERNATIONAL, INC.

(Adopted on _______)

(Effective upon the closing of the Corporation’s initial public offering)


TABLE OF CONTENTS

 

         Page  

ARTICLE I STOCKHOLDERS

     1  

1.1

  Place of Meetings      1  

1.2

  Annual Meeting      1  

1.3

  Special Meetings      1  

1.4

  Notice of Meetings      1  

1.5

  Voting List      2  

1.6

  Quorum      3  

1.7

  Adjournments      3  

1.8

  Proxies      3  

1.9

  Action at Meeting      4  

1.10

  Notice of Stockholder Business and Nominations      4  

1.11

  Conduct of Meetings; Inspectors of Election      14  

ARTICLE II DIRECTORS

     15  

2.1

  General Powers      15  

2.2

  Number, Election, Term and Qualification      15  

2.3

  Chairperson of the Board; Vice Chairperson of the Board      16  

2.4

  Quorum      16  

2.5

  Action at Meeting      16  

2.6

  Removal      16  

2.7

  Newly Created Directorships; Vacancies      17  

2.8

  Resignation      17  

2.9

  Regular Meetings      17  

2.10

  Special Meetings      17  

2.11

  Notice of Special Meetings      17  

2.12

  Meetings by Conference Communications Equipment      17  

2.13

  Action by Consent      17  

2.14

  Committees      18  

2.15

  Compensation of Directors      18  

ARTICLE III OFFICERS

     18  

3.1

  Titles      18  

3.2

  Election      19  

3.3

  Qualification      19  

3.4

  Tenure      19  

3.5

  Resignation and Removal      19  

3.6

  Vacancies      19  

3.7

  President; Chief Executive Officer      19  

3.8

  Chief Financial Officer      20  

3.9

  Vice Presidents      20  

3.10

  Secretary and Assistant Secretaries      20  

3.11

  Treasurer and Assistant Treasurers      21  

3.12

  Salaries      21  

3.13

  Delegation of Authority      21  

 

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ARTICLE IV CAPITAL STOCK

     21  

4.1

  Stock Certificates; Uncertificated Shares      21  

4.2

  Transfers      23  

4.3

  Lost, Stolen or Destroyed Certificates      23  

4.4

  Record Date      23  

4.5

  Regulations      24  

ARTICLE V GENERAL PROVISIONS

     24  

5.1

  Fiscal Year      24  

5.2

  Corporate Seal      24  

5.3

  Waiver of Notice      24  

5.4

  Voting of Securities      25  

5.5

  Evidence of Authority      25  

5.6

  Certificate of Incorporation      25  

5.7

  Severability      25  

5.8

  Pronouns      25  

5.9

  Electronic Transmission      25  

ARTICLE VI AMENDMENTS

     25  

ARTICLE VII INDEMNIFICATION AND ADVANCEMENT

     26  

7.1

  Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation      26  

7.2

  Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation      26  

7.3

  Authorization of Indemnification      27  

7.4

  Right of Claimant to Bring Suit      27  

7.5

  Expenses Payable in Advance      28  

7.6

  Nonexclusivity of Indemnification and Advancement of Expenses      28  

7.7

  Insurance      28  

7.8

  Certain Definitions      29  

7.9

  Survival of Indemnification and Advancement of Expenses      29  

7.10

  Limitation on Indemnification      29  

7.11

  Contract Rights      30  

 

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ARTICLE I

STOCKHOLDERS

1.1 Place of Meetings. All meetings of stockholders shall be held at such place, if any, as may be designated from time to time by the Board of Directors (the “Board”) of Sunnova Energy International Inc. (the “Corporation”), the Chairperson of the Board or the Chief Executive Officer or, if not so designated, at the principal office of the Corporation. The Board may, in its sole discretion, determine that a meeting shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”).

1.2 Annual Meeting. The annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws shall be held on a date and at a time designated by the Board, the Chairperson of the Board or the Chief Executive Officer. The Board or the chairperson of the meeting may postpone, recess, reschedule or cancel any previously scheduled annual meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders.

1.3 Special Meetings. Special meetings of stockholders for any purpose or purposes may be called only in the manner provided in the Certificate of Incorporation. The Board or the chairperson of the meeting may postpone, recess, reschedule or cancel any previously scheduled special meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders. Business to be conducted at a special meeting of stockholders shall be limited to the purposes stated in the notice of meeting. Nothing contained in this Section 1.3 shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the Board may be held.

1.4 Notice of Meetings. Except as otherwise provided by law, notice of each meeting of stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting. Without limiting the manner by which notice otherwise may be given to stockholders, any notice to stockholders given by the Corporation shall be effective if given by electronic transmission in accordance with applicable law. The notices of all meetings shall state the place, if any, date and

 


time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting). The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called. If notice is given by mail, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. If notice is given by electronic transmission, such notice shall be deemed given at the time specified in Section 232 of the DGCL.

1.5 Voting List. The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, then such list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then such list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, such list shall presumptively determine the identity of the stockholders entitled to examine the list of stockholders required by this Section 1.5 and vote at the meeting and the number of shares held by each of them. To the fullest extent permitted by applicable law, the failure to comply with any requirements of this Section 1.5 shall not affect the validity of any action taken at such meeting.

 

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1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders the presence of the holders of a majority in voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person or represented by proxy, shall constitute a quorum with respect to the vote on such matter. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.

1.7 Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time to any other time and to the same or some other place at which a meeting of stockholders may be held under these Bylaws by the Board, the chairperson of the meeting or, if directed to be voted on by the chairperson of the meeting, by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, although less than a quorum. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.

1.8 Proxies. Each stockholder of record entitled to vote at a meeting of stockholders may authorize another person or persons to vote for such stockholder by proxy. Any copy, facsimile transmission or other reliable reproduction of the document authorizing a person to vote by proxy may be substituted or used in lieu of the original document for any and all purposes for which the original document could be used; provided that such copy, facsimile transmission or other reproduction shall be a complete reproduction of the entire document. Any electronic transmission authorizing a person to vote by proxy must set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder. No such proxy shall be voted upon after three (3) years from its date, unless the proxy provides for a longer period.

 

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1.9 Action at Meeting. When a quorum is present at any meeting, any matter other than the election of directors to be voted upon by the stockholders at such meeting shall be decided by a majority of the votes cast by the holders of all of the shares of stock present in person or represented by proxy at the meeting and voting affirmatively or negatively on such matter (or if one or more class, classes or series of stock are entitled to vote as a separate class or series, then a majority of the votes cast by the holders of the shares of stock of such class, classes or series entitled to vote as a separate class or series present in person or represented by proxy at the meeting and voting affirmatively or negatively on such matter), except when a different vote is required by express provision of applicable law, regulation applicable to the Corporation or its securities, the rules or regulations of any stock exchange applicable to the Corporation, the Certificate of Incorporation or these Bylaws, in which case such express provision shall govern. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect directors.

1.10 Advance Notice Procedures.

(a) Nomination of Directors at Annual Meetings.

(i) Except for any directors entitled to be elected by the holders of Preferred Stock, only persons who are nominated in accordance with the procedures in this Section 1.10 shall be eligible for election or re-election as directors. Nomination for election to the Board at an annual meeting of stockholders may be made only (A) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or any duly authorized committee thereof or (C) by a stockholder of the Corporation who (1) timely complies in proper form in writing with the notice procedures in Section 1.10(a), (2) is a stockholder of record on the date of the giving of notice to the Secretary of the Corporation required by this Section 1.10(a), on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at such meeting and (3) is entitled to vote at such meeting upon such election of directors. For any nominations to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of this Section 1.10(a)(i), the stockholder must have given timely notice thereof in proper form, and must timely provide any updates and supplements to such notice thereof, in writing to the Secretary of the Corporation at such times and in such forms provided by this Section 1.10(a).

 

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(ii) To be timely, a stockholder’s notice required by Section 1.10(a)(i)(C) must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is scheduled for a date that is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the close of business on the one hundred twentieth (120th) day prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than one hundred (100) days prior to the date of such annual meeting, the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation. For purposes of these Bylaws, for the first annual meeting following the initial public offering of the Common Stock of the Corporation, the date of the first anniversary of the preceding year’s annual meeting shall be deemed to be __________, 2019. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(iii) To be in proper form for purposes of this Section 1.10(a), a stockholder’s notice to the Secretary must set forth: (A) as to each person whom the stockholder proposes to nominate for election as a director (1) the name, age, business and residence address of the nominee, (2) the principal occupation or employment of the nominee (presently and for the past five (5) years), (3) all other information relating to such nominee that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, (4) a reasonably detailed description of all direct and indirect compensatory, payment or other financial agreements, arrangements and understandings during the past three years that such nominee

 

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has with any other person or entity other than the Corporation including the amount of any payment or payments received or receivable thereunder, in each case in connection with candidacy or service as a director of the Corporation, and any other material relationships, between or among such stockholder and Stockholder Associated Person, if any, and their respective affiliates and associates, or other person or entity acting in concert therewith, on the one hand, and such proposed nominee and his or her respective affiliates and associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person or entity acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (5) such nominee’s written consent to being named in the Corporation’s proxy statement as a nominee of such stockholder and to serving as a director if elected, which shall state his or her intention to serve a full term as a director if elected, (6) all information with respect to such nominee that would be required to be set forth in a stockholder’s notice pursuant to this Section 1.10 if such nominee were the stockholder giving notice hereunder (the information required by this Section 1.10(a)(iii) is referred to herein as the “Nominee Information”); and (B) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made (1) the name and address of such stockholder, as they appear on the Corporation’s books, and of such stockholder’s Stockholder Associated Person, (2) the class or series and number of shares of each such class or series of capital stock of the Corporation which are, directly or indirectly, owned beneficially (within the meaning of Rule 13d-3 under the Exchange Act) or of record by such stockholder and such Stockholder Associated Person (provided, that such stockholder and the Stockholder Associated Person, if any, on whose behalf the nomination is made shall in all events be deemed to beneficially own any shares of any class or series and number of shares of capital stock of the Corporation as to which such stockholder or Stockholder Associated Person, if any, has a right to acquire beneficial ownership at any time in the future), (3) a complete and accurate description of all Derivative Transactions (as defined below), whether or not subject to settlement in underlying shares of capital stock of the Corporation or otherwise, by such stockholder or by any Stockholder Associated Person during the previous twelve (12) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions, (4) a complete and accurate description of any agreement, arrangement or understanding with respect to the nomination (and any related business proposal) between or among such stockholder and/or such stockholder’s

 

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Stockholder Associated Person, any of their respective affiliates or associates, and any other person or entity (including their names) acting in concert with any of the foregoing, including the name and address of any other person(s) or entity or entities known to the stockholder or any Stockholder Associated Person to support such nomination, (5) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting upon such nomination and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice, (6) a representation as to whether the stockholder and/or any Stockholder Associated Person intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock reasonably believed by the stockholder or Stockholder Associated Person to be sufficient to elect such nominee (and such representation shall be included in any such proxy statement and form of proxy) and/or (y) otherwise to solicit proxies or votes from stockholders in support of such nomination (and such representation shall be included in any such solicitation materials) (such information provided and statements made as required by clauses (x) and (y) above, a “Nominee Solicitation Statement”), and (7) any other information relating to such stockholder and Stockholder Associated Person, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. The Corporation may require any proposed nominee to furnish such other information as the Corporation may reasonably require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could reasonably be expected to be material to a stockholders’ understanding of whether such nominee would be independent under applicable Securities and Exchange Commission and stock exchange rules and the Corporation’s publicly disclosed corporate governance guidelines, as applicable.

In addition, to be in proper written form, a stockholder’s notice to the Secretary must be supplemented by such stockholder not later than ten (10) days after the record date for determining the stockholders entitled to notice of the meeting to disclose the information specified in clause (1) through (4) of Section 1.10(a)(iii)(A) as of such record date. Additionally, a nominee shall not be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Nominee Solicitation Statement applicable to such nominee or in any other notice to the Corporation or if the Nominee Solicitation Statement applicable to such nominee or any other relevant notice contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading.

 

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Notwithstanding anything in the first sentence of Section 1.10(a)(ii) to the contrary, in the event that the number of directors to be elected to the Board at the annual meeting is increased effective after the time period for which nominations would otherwise be due under Section 1.10(a)(ii) and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 1.10(a) shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.

(b) Notice of Business at Annual Meetings.

(i) At any annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business other than the election of directors must be (A) specified in the notice of meeting (or any supplement thereto), (B) otherwise brought by or at the direction of the Board or any duly authorized committee thereof or (C) properly brought before the meeting by a stockholder in accordance with this Section 1.10(b).

(ii) For business other than the election of directors to be properly brought before an annual meeting by a stockholder pursuant to Section 1.10(b)(i)(C), the business must constitute a proper matter under Delaware law for stockholder action and the stockholder must (A) have given timely notice thereof in proper form in writing to the Secretary of the Corporation (and must timely provide any updates or supplements to such notice at such times and in such forms provided by this Section 1.10(b)), (B) be a stockholder of record on the date of the giving of such notice, on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at such annual meeting and (C) be entitled to vote at such annual meeting and on such proposal.

(iii) To be timely, a stockholder’s notice required by Section 1.10(b)(ii) must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual

 

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meeting; provided, however, that in the event that the date of the annual meeting is scheduled for a date that is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the close of business on the one hundred twentieth (120th) day prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to the date of such annual meeting or, if the first public announcement by the Corporation of the date of such annual meeting is less than one hundred (100) days prior to the date of such annual meeting, the tenth (10th) day following the day on which the Corporation first makes a public announcement of the date of such meeting at which directors are to be elected. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(iv) To be in proper form for purposes of this Section 1.10(b), such stockholder’s notice to the Secretary must set forth: (A) as to each matter of business the stockholder intends to bring before the annual meeting (1) a reasonably detailed description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any direct or indirect material interest in such business of such stockholder and any Stockholder Associated Person in such business, (2) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the these Bylaws, the language of the proposed amendment), (3) a complete and accurate description of all agreements, arrangements and understandings between or among such stockholder and such stockholder’s Stockholder Associated Person, if any, and the name and address of any other person(s) or entity or entities in connection with the proposal of such business by such stockholder, and (4) such other information relating to any proposed item of business as the Corporation may reasonably require to determine whether such proposed item of business is a proper matter for stockholder action; and (B) as to the stockholder giving the notice and any Stockholder Associated Person (1) the information required to be provided pursuant to clause (1) through (4) of Section 1.10(a)(iii)(A) above (except that the references to “nominee” or “nomination” in such clauses shall instead refer to “business proposal” for purposes of this paragraph), (2) a representation whether the stockholder and/or any Stockholder Associated Person intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required under applicable law to approve or adopt the proposal (and such representation shall be included in any such proxy statement and form of

 

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proxy) and/or (y) otherwise to solicit proxies or votes from stockholders in support of such proposal (and such representation shall be included in any such solicitation materials), (such information provided and statements made as required by clauses (x) and (y), a “Business Solicitation Statement”); (3) any other information relating to such stockholder and Stockholder Associated Person, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal pursuant to Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder.

In addition, to be in proper written form, a stockholder’s notice to the Secretary must be supplemented by such stockholder not later than ten (10) days after the record date for determining the stockholders entitled to notice of the meeting to disclose the information specified in clause (1) of Section 1.10(b)(iv)(B) as of such record date. Also, stockholder seeking to bring business before the annual meeting (other than the election of directors) shall promptly provide any other information reasonably requested by the Corporation. Additionally, business proposed to be brought by a stockholder may not be brought before the annual meeting if such stockholder or a Stockholder Associated Person, as applicable, takes action contrary to the representations made in the Business Solicitation Statement applicable to such business or if the Business Solicitation Statement applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading.

Notwithstanding anything in this Section 1.10(b) to the contrary, the foregoing notice requirements of this Section 1.10(b) shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Corporation of his, her or its intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting.

(c) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only (i) by or at the direction of the Board or any duly authorized committee thereof or (ii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (A) is a stockholder of record at the time the notice provided for in this Section 1.10 is received by the Secretary of the Corporation, on the

 

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record date for the determination of stockholders entitled to notice of the special meeting and on the record date for the determination of stockholders entitled to vote at such special meeting, (B) is entitled to vote at the meeting and upon such election and (C) complies with the notice procedures set forth in this Section 1.10(c) (including, without limitation, as to timely notice and as to proper form, which notice shall include the information, agreements, consents and representations set forth in Section 1.10(a) except that the references to “annual meeting” in Section 1.10(a) shall instead refer to such “special meeting”) and applicable law. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (a)(iii) of this Section 1.10 with respect to each such nomination (including, without limitation, all Nominee Information) shall be received by the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to the date of such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or, if the first public announcement of the date of such special meeting at which directors are to be elected is less than one hundred (100) days prior to the date of such special meeting, the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting by the Corporation. In no event shall any adjournment, recess, cancellation, rescheduling or postponement of a special meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(d) General. (i) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 1.10 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.10. Except as otherwise provided by law, the chairperson of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.10 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the case

 

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may be, proxies or votes in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (A)(2)(c)(vi) of this Section 1.10) and (b) if any proposed nomination or business was not made or proposed in compliance with this Section 1.10, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Except as otherwise required by law, nothing in this Section 1.10 shall obligate the Corporation or the Board to include in any proxy statement or other stockholder communication distributed on behalf of the Corporation or the Board information with respect to any nominee for director submitted by a stockholder. Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 1.10, to be considered a qualified representative of the stockholder, a person or entity must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person or entity must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

(ii) For purposes of these Bylaws:

affiliate” has the meaning in Rule 12b-2 under the Exchange Act.

associate” has the meaning in Rule 12b-2 under the Exchange Act.

beneficial ownership,” including the correlative terms “beneficially own” and “beneficial owner,” has the meaning in Rule 13d-3 under the Exchange Act, except that a person shall in all events be deemed to beneficially own any shares of any class or series of capital stock of the Corporation as to which such person has a right to acquire (by conversion, exercise of otherwise) beneficial ownership currently or at any time in the future.

 

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Derivative Transaction” shall mean any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, the stockholder or beneficial owner or any of its affiliates or associates, whether record or beneficial:

 

  (w)

the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the Corporation,

 

  (x)

which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the Corporation,

 

  (y)

the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or

 

  (z)

which provides the right to vote or increase or decrease the voting power of, such stockholder or beneficial owner, or any of its affiliates or associates, with respect to any securities of the Corporation,

which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such stockholder or beneficial owner in the securities of the Corporation held, directly or indirectly, by any general or limited partnership, limited liability company or similar entity of which such stockholder or beneficial owner is or, directly or indirectly, owns an interest in a general partner or managing member of such entity.

public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

Stockholder Associated Person” shall mean, for any stockholder, (x) any person or entity controlling, directly or indirectly, or acting in concert with, such stockholder, (y) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder or (z) any person or entity controlling, controlled by or under common control with any person or entity referred to in the preceding clauses (x) or (y).

 

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(iii) Notwithstanding the foregoing provisions of this Section 1.10, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth herein; provided, however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 1.10 (including paragraphs (a)(i)(C), (b)(i)(C) and (c) hereof), and compliance with paragraphs (a)(i)(B), (b)(i)(C) and (c) of this Section 1.10 shall be the exclusive means for a stockholder to make nominations or submit other business (other than business other than nominations brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in these Bylaws shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals or nominations in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

1.11 Conduct of Meetings; Inspectors of Election.

(e) Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in the Chairperson’s absence by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by the President, or in the absence of all of the foregoing persons by a chairperson designated by the Board. The Secretary shall act as secretary of the meeting, but in the Secretary’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

(f) The Board may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the Corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board, the chairperson of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairperson of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to

 

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stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

(g) The chairperson of the meeting shall announce at the meeting when the polls for each matter to be voted upon at the meeting will be opened and closed. After the polls close, no ballots, proxies or votes or any revocations or changes thereto may be accepted.

(h) The Corporation may, and if required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by law, inspectors may be officers, employees, agents or representatives of the Corporation. Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and, when the vote is completed, shall certify their determination of the result of the vote taken and of such other facts as may be required by law. Every vote taken by ballots shall be counted by a duly appointed inspector or duly appointed inspectors.

ARTICLE II

DIRECTORS

2.1 General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, who may exercise all of the powers of the Corporation except as otherwise provided by law or the Certificate of Incorporation.

2.2 Number, Election, Term and Qualification. The total number of directors constituting the Board shall be as fixed in, or in the manner provided by, the Certificate of Incorporation. Election of directors need not be by written ballot. The term of office of each director shall be as specified in the Certificate of Incorporation. Directors need not be stockholders of the Corporation.

 

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2.3 Chairperson of the Board. The Board may appoint from its members a Chairperson of the Board, and such person need not be an employee or officer of the Corporation. If the Board appoints a Chairperson of the Board, such Chairperson shall perform such duties and possess such powers as are assigned by the Board and, if the Chairperson of the Board is also designated as the Corporation’s Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in Section 3.7 of these Bylaws. Unless otherwise provided by the Board, the Chairperson of the Board shall preside at all meetings of the Board.

2.4 Quorum. The greater of (a) a majority of the directors at any time in office and (b) one-third of the Whole Board shall constitute a quorum of the Board. For purposes of these Bylaws, the term “Whole Board” shall mean the total number of authorized directors whether or not there exist any vacancies or unfilled seats in previously authorized directorships (provided for the avoidance of doubt that voting power shall be attributed to any such vacancies or unfilled seats). If at any meeting of the Board there shall be less than a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.

2.5 Action at Meeting. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number is required by law, the Certificate of Incorporation or these Bylaws.

2.6 Removal. Subject to the rights of holders of any series of Preferred Stock, directors of the Corporation may be removed only as expressly provided in the Certificate of Incorporation or by applicable law.

 

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2.7 Newly Created Directorships; Vacancies. Any vacancy or newly created directorship on the Board, however occurring, shall be filled only in accordance with the Certificate of Incorporation.

2.8 Resignation. Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event.

2.9 Regular Meetings. Regular meetings of the Board may be held without notice at such time and place as shall be determined from time to time by the Board; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board may be held without notice immediately after and at the same place as the annual meeting of stockholders.

2.10 Special Meetings. Special meetings of the Board may be called by the Chairperson of the Board, the Chief Executive Officer, the affirmative vote of a majority of the directors then in office, or by one director in the event that there is only a single director in office.

2.11 Notice of Special Meetings. Notice of the date, place and time of any special meeting of the Board shall be given to each director (a) in person, by telephone or by electronic transmission at least twenty-four (24) hours in advance of the meeting, (b) by delivering written notice by hand to such director’s last known business or home at least twenty-four (24) hours in advance of the meeting, or (c) by sending written notice by first-class mail to such director’s last known business or home address at least seventy-two (72) hours in advance of the meeting. Such notice may be given by the Secretary or by the Chairperson of the Board, the Chief Executive Officer or one of the directors calling the meeting. A notice or waiver of notice of a meeting of the Board need not specify the purposes of the meeting.

2.12 Meetings by Conference Communications Equipment. Directors may participate in meetings of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.

2.13 Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission.

 

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2.14 Committees. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation with such lawfully delegable powers and duties as the Board thereby confers, to serve at the pleasure of the Board. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board and subject to the provisions of law, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each such committee shall keep minutes and make such reports as the Board may from time to time request. Except as the Board may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board. Except as otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.

2.15 Compensation of Directors. Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings as the Board may from time to time determine. No such payment shall preclude any director from serving the Corporation or any of its parent or subsidiary entities in any other capacity and receiving compensation for such service.

ARTICLE III

OFFICERS

3.1 Titles. The officers of the Corporation may consist of a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer and a Secretary and such other officers with such other titles as the Board shall from time to time determine. The Board may appoint such other officers, including one or more Vice Presidents and one or more Assistant Treasurers or Assistant Secretaries, as it may deem appropriate from time to time.

 

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3.2 Election. The officers of the Corporation shall be elected by the Board.

3.3 Qualification. No officer need be a stockholder. Any two or more offices may be held by the same person.

3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until such officer’s successor is duly elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until such officer’s earlier death, resignation, disqualification or removal.

3.5 Resignation and Removal. Any officer may resign by delivering a resignation in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the Whole Board. Except as the Board may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer’s resignation or removal, or any right to damages on account of such removal, whether such officer’s compensation be by the month or by the year or otherwise, unless such compensation is expressly provided for in a duly authorized written agreement with the Corporation

3.6 Vacancies. The Board may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled, for such period as it may determine, any offices. Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is duly elected and qualified, or until such officer’s earlier death, resignation, disqualification or removal.

3.7 President; Chief Executive Officer. Unless the Board has designated another person as the Corporation’s Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The Chief Executive Officer shall have general charge and supervision of the business of the Corporation subject to the direction of the Board, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are

 

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delegated to such officer by the Board. The President shall perform such other duties and shall have such other powers as the Board or the Chief Executive Officer (if the President is not the Chief Executive Officer) may from time to time prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer or the President (if the President is not the Chief Executive Officer), the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board) shall perform the duties of the Chief Executive Officer and when so performing such duties shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.

3.8 Chief Financial Officer. Unless the Board has designated another person as the Corporation’s Chief Financial Officer, the Treasurer shall be the Chief Financial Officer of the Corporation. The Chief Financial Officer shall perform such duties and possess such powers as the Board or the Chief Executive Officer may from time to time prescribe.

3.9 Vice Presidents. Each Vice President shall perform such duties and possess such powers as the Board or the Chief Executive Officer may from time to time prescribe. The Board may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board.

3.10 Secretary and Assistant Secretaries. The Secretary shall perform such duties and shall have such powers as the Board or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board, to attend all meetings of stockholders and the Board and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.

Any Assistant Secretary shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board) shall perform the duties and exercise the powers of the Secretary.

The chairperson of any meeting of the Board or of stockholders may designate a temporary secretary to keep a record of any meeting.

 

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3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the Corporation, to deposit funds of the Corporation in depositories selected in accordance with these Bylaws, to disburse such funds as ordered by the Board, to make proper accounts of such funds, and to render as required by the Board statements of all such transactions and of the financial condition of the Corporation.

The Assistant Treasurers shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board) shall perform the duties and exercise the powers of the Treasurer.

3.12 Salaries. Officers of the Corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board.

3.13 Delegation of Authority. The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.

ARTICLE IV

CAPITAL STOCK

4.1 Stock Certificates; Uncertificated Shares. The shares of the Corporation shall be uncertificated shares, provided that the resolution of the Board that the shares of capital stock of the Corporation shall be uncertificated shares shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation (or the transfer agent or registrar, as the case may be). Notwithstanding the foregoing, the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be certificated shares. Every holder of stock of the Corporation represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board, representing the number of shares held by such holder registered in certificate form. Each such certificate shall be signed by or in the name of the Corporation by any two authorized officers of the Corporation and each of the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer and any Assistant Treasurer are duly authorized to sign such certificates

 

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by, or in the name of, the Corporation, unless otherwise expressly provided in the resolution of the Board electing such officer. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue

Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws, applicable securities laws or any agreement among any number of stockholders or among such holders and the Corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.

If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

Within a reasonable time after the issuance or transfer of uncertificated shares, the registered owner thereof shall be given a notice, in writing or by electronic transmission, containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL or, with respect to Section 151 of DGCL, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

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4.2 Transfers. Shares of stock of the Corporation shall be transferable in the manner prescribed by law, the Certificate of Incorporation and in these Bylaws. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation or by transfer agents designated to transfer shares of stock of the Corporation. Subject to applicable law, shares of stock represented by certificates shall be transferred only on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the Corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.

4.3 Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate or uncertificated shares in place of any previously issued certificate alleged to have been lost, stolen or destroyed, upon such terms and conditions as the Board may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity and posting of such bond sufficient to indemnify the Corporation or any transfer agent or registrar against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

4.4 Record Date. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to

 

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any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date, which shall not be more than sixty (60) days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

4.5 Regulations. The issue and registration of shares of stock of the Corporation shall be governed by such other regulations as the Board may establish.

ARTICLE V

GENERAL PROVISIONS

5.1 Fiscal Year. Except as from time to time otherwise designated by the Board, the fiscal year of the Corporation shall begin on the first day of January of each year and end on the last day of December in each year.

5.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by the Board.

5.3 Waiver of Notice. Whenever notice is required to be given by law, by the Certificate of Incorporation or by these Bylaws, a written waiver signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at or after the time of the event for which notice is to be given, shall be deemed equivalent to notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in any such waiver. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

 

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5.4 Voting of Securities. Except as the Board may otherwise designate, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer may waive notice, vote, consent, or appoint any person or persons to waive notice, vote or consent, on behalf of the Corporation, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for the Corporation (with or without power of substitution and re-substitution), with respect to the securities of any other entity which may be held by this Corporation.

5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.

5.6 Certificate of Incorporation. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and/or restated and in effect from time to time, including any certificate of designation relating to any outstanding series of Preferred Stock.

5.7 Severability. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.

5.8 Pronouns. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.

ARTICLE VI

AMENDMENTS

These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board or by the stockholders as expressly provided in the Certificate of Incorporation.

 

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ARTICLE VII

INDEMNIFICATION AND ADVANCEMENT

7.1 Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation. Subject to Section 7.3, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any person (a “Covered Person”) who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such Covered Person is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), liability and loss, judgments, fines and penalties and amounts paid in settlement actually and reasonably incurred or suffered by such Covered Person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

7.2 Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 7.3, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any Covered Person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such Covered Person is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such Covered Person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

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7.3 Authorization of Indemnification. Any indemnification under this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Covered Person is proper in the circumstances because such Covered Person has met the applicable standard of conduct set forth in Section 7.1 or Section 7.2, as the case may be. Such determination shall be made, with respect to a Covered Person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a Covered Person has been successful on the merits or otherwise in defense of any action, suit or proceeding set forth in Section 7.1 or Section 7.2 or in defense of any claim, issue or matter therein, such Covered Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

7.4 Right of Claimant to Bring Suit. Notwithstanding any contrary determination in the specific case under Section 7.3, and notwithstanding the absence of any determination thereunder, if (i) following the final disposition of the applicable proceeding, a claim for indemnification under Sections 7.1 or 7.2 of this Article VII is not paid in full by the Corporation within ninety (90) days after a written claim for indemnification has been received by the Corporation, or (ii) a claim for advancement of expenses under Section 7.5 of this Article VII is not paid in full by the Corporation within thirty (30) days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person may at any time thereafter (but not before) bring suit against the Corporation in the Court of Chancery in the State of Delaware to recover the unpaid amount of the claim, together with interest thereon, or to obtain advancement of expenses, as applicable. It shall be a defense to any such action brought to enforce a right to indemnification (but not in an action brought to enforce a right to an advancement of expenses) that the Covered Person has not met the standards of conduct which

 

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make it permissible under the DGCL (or other applicable law) for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither a contrary determination in the specific case under Section 7.3 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the claimant has not met any applicable standard of conduct. If successful, in whole or in part, the claimant shall also be entitled to be paid the expense of prosecuting such claim, including reasonable attorneys’ fees incurred in connection therewith, to the fullest extent permitted by applicable law.

7.5 Expenses Payable in Advance. Expenses, including without limitation attorneys’ fees, incurred by a Covered Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Covered Person to repay such amount if it shall ultimately be determined that such Covered Person is not entitled to be indemnified by the Corporation as authorized in this Article VII or otherwise.

7.6 Nonexclusivity of Indemnification and Advancement of Expenses. The rights to indemnification and advancement of expenses provided by or granted pursuant to this Article VII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that, subject to Section 7.10, indemnification of Covered Persons shall be made to the fullest extent permitted by law. The provisions of this Article VII shall not be deemed to preclude the indemnification of any person who is not specified in Section 7.1 or 7.2 but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL or otherwise.

7.7 Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power or the obligation to indemnify such person against such expense, liability or loss under the provisions of this Article VII.

 

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7.8 Certain Definitions. For purposes of this Article VII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents so that any person who is or was a director or officer of such constituent corporation, or, while a director or officer of such constituent Corporation, is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VII, references to “fines” shall include any excise taxes assessed on a person with respect of any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VII.

7.9 Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall continue as to a Covered Person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a Covered Person.

7.10 Limitation on Indemnification. Notwithstanding anything contained in this Article VII to the contrary, except for proceedings to enforce rights to indemnification or advancement of expenses (which shall be governed by Section 7.4), the Corporation shall not be obligated to indemnify any Covered Person in connection with an action, suit proceeding (or part thereof) initiated by such person unless such action, suit or proceeding (or part thereof) was authorized by the Board.

 

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7.11 Contract Rights. The obligations of the Corporation under this Article VII to indemnify, and advance expenses to, a Covered Person who is or was a director or officer of the Corporation shall be considered a contract between the Corporation and such Covered Person, and no modification or repeal of any provision of this Article VII shall affect, to the detriment of such Covered Person, such obligations of the Corporation in connection with a claim based on any act or failure to act occurring before such modification or repeal.

 

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EX-4.2 4 d709190dex42.htm EX-4.2 EX-4.2

Exhibit 4.2

FORM OF STOCKHOLDERS AGREEMENT

STOCKHOLDERS AGREEMENT (this “Agreement”), dated as of             , 2019, by and among SUNNOVA ENERGY INTERNATIONAL INC., a Delaware corporation (the “Corporation”), and each of the stockholders listed on Schedule A hereto. This Agreement shall become effective (the “Effective Date”) upon the closing of the IPO (as defined below).

WHEREAS, in order to set forth certain understandings between the Corporation, the ECP Stockholders (as defined below) and the Quantum Stockholders (as defined below), including with respect to certain governance matters, the ECP Stockholders, the Quantum Stockholders and the Corporation wish to enter into this Agreement in accordance with the terms set forth herein.

NOW, THEREFORE, in consideration of the promises and of the mutual consents and obligations hereinafter set forth, the parties hereto hereby agree as follows:

Section 1. Definitions; Interpretation.

(a) Definitions. As used herein, the following terms shall have the following respective meanings:

Affiliate” means as to any Person, any other Person or entity who directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person; provided that the term “Affiliate” shall not include at any time (i) any portfolio companies of the ECP Stockholders or (ii) any portfolio companies of the Quantum Stockholders. As used in this definition, the term “control,” including the correlative terms “controlling,” “controlled by” and “under common control with,” means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person.

Agreement” has the meaning set forth in the Preamble.

Annual Budget” has the meaning set forth in Section 3(a).

Beneficially Own” means that a specified person has or shares the right, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, to vote shares of capital stock of the Corporation.

Board” means the board of directors of the Corporation.

Business Day” means a day that is not a Saturday, Sunday or day on which banking institutions in New York City, New York are not required to be open.

Change of Control” means (i) the sale or disposition of all or substantially all of the assets of the Corporation and its Subsidiaries on a consolidated basis to any person or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), other than to the ECP Stockholders or their respective Affiliates; (ii) any transaction or series of related transactions (including, but not limited to, a merger or consolidation) that results in any person or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as


amended), other than the ECP Stockholders and their respective Affiliates, acquiring shares of Common Stock or other equity interest of the Corporation that represent more than 50% of the total voting power of the Corporation (or any resulting company after such transaction); or (iii) a “Change of Control” as defined in any of the Corporation’s or its Subsidiaries’ existing credit agreements.

Common Stock” means the common stock, par value $0.0001 per share, of the Corporation and any stock into which such Stock may hereafter be changed or for which such Common Stock may be exchanged, and shall also include any Common Stock of the Corporation of any class hereafter authorized.

Corporation Shares” means the shares of Common Stock or other equity securities of the Corporation and any securities into which such shares of Common Stock or other equity securities shall have been changed or any securities resulting from any reclassification or recapitalization of such shares of Common Stock or other equity securities.

Corporation” has the meaning set forth in the Preamble.

ECP Stockholder” means any of Energy Capital Partners III, LP, Energy Capital Partners III-A, LP, Energy Capital Partners III-B, LP, Energy Capital Partners III-C, LP, Energy Capital Partners III-D, LP, Energy Capital Partners III (Sunnova Co-Invest), LP and each of their respective Affiliates that owns any shares of Stock in the Corporation.

IPO” means an initial public offering of the shares of Common Stock in a firm commitment underwriting effected by the Corporation pursuant to a Registration Statement on Form S-1.

Person” means any natural person, corporation, partnership, limited liability company, firm, association, trust, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.

Quantum Stockholders” means QSIP LP and each of its Affiliates that owns any shares of Stock in the Corporation.

SEC” means the Securities and Exchange Commission or any successor governmental agency.

Stock” means (i) the outstanding shares of Common Stock, (ii) any additional shares of Common Stock that may be issued in the future and (iii) any shares of capital stock of the Corporation into which such shares may be converted or for which such shares may be exchanged.

Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, joint venture or other legal entity of which such Person (either above or through or together with any other Subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

Any capitalized term used in any Section of this Agreement that is not defined in this Section 1 shall have the meaning ascribed to it in such other Section.

 

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(b) Rules of Construction. For all purposes of this Agreement, unless otherwise expressly provided:

(1) the headings and captions of this Agreement are for convenience of reference only and shall not define, limit or otherwise affect any of the terms hereof;

(2) the term “including” is not limiting and means “including without limitation”; and

(3) whenever the context requires, the gender of all words used herein shall include the masculine, feminine and neuter, and the number of all words shall include the singular and plural.

Section 2. Board of Directors.

(a) Initial Composition of the Board. The Board is initially comprised of 9 directors, (A) four of which were designated by the ECP Stockholders: Rahman D’Argenio, Matthew DeNichilo, Doug Kimmelman, and Scott D. Steimer; (B) one of which is the Chief Executive Officer of the Corporation, William J. Berger; (C) one of which was designated by the Quantum Stockholders: Mark Longstreth; and (D) the remainder of which are Michael C. Morgan, C. Park Shaper and one vacancy to be filled by the Board.

(b) Nomination of Directors. (1) From and after the Effective Date, for as long as the ECP Stockholders collectively Beneficially Own the percentages of Common Stock set forth below, the ECP Stockholders shall have the right to nominate for election to the Board such number of directors that is equal to:

(i) such number of directors that would constitute a majority of the number of directors that the Corporation would have if there were no vacancies on the Board, so long as the ECP Stockholders collectively beneficially own at least 50% of the outstanding Common Stock;

(ii) such number of directors equal to one director fewer than that number that would constitute a majority of the number of directors that the Corporation would have if there were no vacancies on the Board, so long as the ECP Stockholders collectively Beneficially Own at least 30% of the outstanding Common Stock but less than 50% of the outstanding Common Stock;

(iii) the greater of (A) three directors and (B) 25% of the total number of directors that constitute the Board (rounded up to the next whole number), so long as the ECP Stockholders collectively beneficially own at least 20% of the outstanding Common Stock but less than 30% of the outstanding Common Stock;

(iv) the greater of (A) two directors and (B) 15% of the total number of directors that constitute the Board (rounded up to the next whole number), so long as the ECP Stockholders collectively beneficially own at least 10% of the outstanding Common Stock but less than 20% of the outstanding Common Stock; and

 

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(v) one director, so long as the ECP Stockholders collectively beneficially own at least 5% of the outstanding Common Stock but less than 10% of the outstanding Common Stock.

(2) From and after the Effective Date, for as long as the Quantum Stockholders collectively Beneficially Own at least 5% of the outstanding Common Stock, the Quantum Stockholders shall have the right to nominate one director for election to the Board.

(c) Election of Directors. The Corporation shall take all action within its power to cause all nominees nominated pursuant to Section 2(b) to be included in the slate of nominees recommended by the Board to the Corporation’s stockholders for election as directors at each annual meeting of the stockholders of the Corporation (and/or in connection with any election by written consent) and the Corporation shall use all reasonable best efforts to cause the election of each such nominee, including (i) voting or providing a written consent or proxy with respect to Corporation Shares (if practicable), and soliciting proxies in favor of the election of such nominees, (ii) reasonable best efforts to cause the adoption of stockholders’ resolutions and amendments to the organizational documents of the Corporation, (iii) executing agreements and instruments, and (iv) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result.

(d) Replacement of Directors. In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of a director nominated by the ECP Stockholders or the Quantum Stockholders, as applicable, pursuant to Section 2(b) or designated by the ECP Stockholders or the Quantum Stockholders, as applicable, pursuant to this Section 2(d), or in the event of the failure of any such nominee to be elected, the ECP Stockholders or the Quantum Stockholders, as applicable, shall have the right to designate a replacement to fill such vacancy. The Corporation shall take all action within its power to cause such vacancy to be filled by the replacement so designated by the ECP Stockholders or the Quantum Stockholders, as applicable, and the Board shall promptly elect such designee to the Board. Upon the written request of the ECP Stockholders or the Quantum Stockholders, the Corporation shall take all actions necessary to remove, with or without cause, any director previously nominated by the ECP Stockholders or the Quantum Stockholders, as applicable, pursuant to Section 2(b) or designated by the ECP Stockholders or the Quantum Stockholders, as applicable, pursuant to this Section 2(d), and to elect any replacement director designated by the ECP Stockholders or the Quantum Stockholders, as applicable, as provided in the first sentence of this Section 2(d).

(e) Committees. So long as the ECP Stockholders have the right to nominate at least one director for election to the Board pursuant to Section 2(b) above, the Corporation shall take all action within its power to cause each committee of the Board to include in its membership at least one of the ECP Stockholders’ nominees, except to the extent that such membership would violate applicable securities laws or stock exchange or stock market rules.

(f) No Limitation. The provisions of this Section 2 are intended to provide the ECP Stockholders and the Quantum Stockholders with the minimum Board representation rights set forth herein. Nothing in this Agreement shall prevent the Corporation from having a greater number of nominees or designees of the ECP Stockholders or the Quantum Stockholders on the Board than otherwise provided herein. In addition, nothing in this Section 2 shall be construed to prevent the ECP Stockholders or the Quantum Stockholders from having a lesser number of nominees or designees than otherwise provided herein or pursuant to applicable law and the Corporation’s certificate of incorporation and bylaws.

 

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(g) Laws and Regulations. Nothing in this Section 2 shall be deemed to require that any party hereto, or any Affiliate thereof, act or be in violation of any applicable provision of law, regulation, legal duty or requirement or stock exchange or stock market rule.

Section 3. Information and Access Rights.

(a) Available Financial Information. Upon the written request of any director nominated by the ECP Stockholders or the Quantum Stockholders, respectively, pursuant to Section 2(b) or designated by the ECP Stockholders or the Quantum Stockholders, respectively, pursuant to Section 2(d), the Corporation will deliver, or will cause to be delivered, to such director an annual budget, a business plan and financial forecasts for the Corporation for the fiscal year of the Corporation (collectively, the “Annual Budget”), as soon as reasonably practicable after the approval thereof by the Board, in such manner and form as approved by the Board, which shall include at least a projection of income and a projected cash flow statement for each fiscal quarter in such fiscal year and a projected balance sheet as of the end of each fiscal quarter in such fiscal year, in each case prepared in reasonable detail, with appropriate presentation and discussion of the principal assumptions upon which such budgets and projections are based, and which shall be accompanied by the statement of the Chief Executive Officer or Chief Financial Officer or equivalent officer of the Corporation to the effect that such budget and projections are based on reasonable and good faith estimates and assumptions made by the management of the Corporation for the respective periods covered thereby. To the extent that there has been any material changes to the Annual Budget provided to any director pursuant to this Section 3(a), the Corporation will deliver, or will cause to be delivered, to such director a revised Annual Budget taking into account such material changes as soon as practicable after such changes have been approved by the Board.

(b) Other Information. Upon the written request of any director nominated by the ECP Stockholders or the Quantum Stockholders pursuant to Section 2(b) or designated by the ECP Stockholders or the Quantum Stockholders pursuant to Section 2(d), the Corporation will deliver, or will cause to be delivered, to such director such other information and data (including such information and reports made available to any lender of the Corporation or any of its Subsidiaries under any credit agreement or otherwise) with respect to the Corporation and each of its Subsidiaries and any such other information concerning the Corporation’s business or financial condition and the Corporation’s management as may be reasonably requested by such director, including such information as may be necessary to comply with regulatory, tax or other governmental filings.

(c) Access. The Corporation shall, and shall cause its Subsidiaries, officers, directors, employees, auditors, legal counsel and other agents to (a) afford each of the directors nominated by the ECP Stockholders and the Quantum Stockholders pursuant to Section 2(b) or designated by the ECP Stockholders and the Quantum Stockholders pursuant to Section 2(d), during normal business hours and upon reasonable notice, access to the Corporation’s and its Subsidiaries’ officers, employees,

 

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auditors, legal counsel, properties, offices and other facilities and books and records, and (b) afford each of the directors nominated by the ECP Stockholders and the Quantum Stockholders pursuant to Section 2(b) or designated by the ECP Stockholders and the Quantum Stockholders pursuant to Section 2(d) the opportunity to discuss the affairs, finances and accounts of the Corporation and its Subsidiaries with their respective officers from time to time as any such director may reasonably request.

(d) The rights to information and access set forth in Sections 3(a) through (c) above shall terminate with respect to directors nominated by the ECP Stockholders or the Quantum Stockholders at such time as the ECP Stockholders or the Quantum Stockholders, respectively, shall cease to collectively Beneficially Own at least 10% of the outstanding Common Stock.

Section 4. Certain Actions.

(a) Subject to the provisions of Section 4(b), without the approval of the ECP Stockholders, the Corporation shall not, and (to the extent applicable) shall not permit any Subsidiary of the Corporation to:

(1) enter into or agree to undertake any transaction that would constitute a Change of Control;

(2) issue additional Stock of the Corporation, other than any award under any stockholder approved equity compensation plan; or

(3) change the size of the Board.

(b) The approval rights set forth in Section 4(a) above shall terminate at such time as the ECP Stockholders no longer collectively Beneficially Own at least 30% of the outstanding Common Stock.

Section 5. Duration of Agreement.

(a) This Agreement shall terminate automatically upon the first to occur of the following: (1) the dissolution of the Corporation (unless the Corporation continues to exist after such dissolution as a limited liability company or in another form, whether incorporated in Delaware or another jurisdiction); and (2) upon written agreement by the Corporation, the ECP Stockholders and the Quantum Stockholders.

(b) At such time as the ECP Stockholders no longer collectively Beneficially Own at least 5% of the outstanding Common Stock, the ECP Stockholders shall have no further rights or privileges under this Agreement or otherwise be entitled to the benefits hereof.

(c) At such time as the Quantum Stockholders no longer collectively Beneficially Own at least 5% of the outstanding Common Stock, the Quantum Stockholders shall have no further rights or privileges under this Agreement or otherwise be entitled to the benefits hereof.

Section 6. Severability.

(a) If any provision of this Agreement shall be determined to be illegal and unenforceable by any court of law, the remaining provisions shall be severable and enforceable in accordance with their terms.

Section 7. Governing Law; Jurisdiction.

(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to its choice or conflict of law provisions or rules.

 

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(b) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may be brought against any of the parties in any federal court located in the State of Delaware or any Delaware state court, including the Delaware Chancery Courts located in Wilmington, Delaware, and each of the parties hereby consents to the exclusive jurisdiction of such court (and of the appropriate appellate courts) in any such suit, action or proceeding and waives any objection to venue laid therein. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each of the parties agrees that service of process upon such party at the address referred to in Section 13, together with written notice of such service to such party, shall be deemed effective service of process upon such party.

Section 8. Jury Trial.

BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND/OR ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHT OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS ENTERED INTO AMONG THE PARTIES HERETO IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN.

Section 9. Stock Dividends, Etc.

The provisions of this Agreement shall apply to any and all shares of capital stock of the Corporation or any successor or assignee of the Corporation (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for or in substitution for the shares of Stock, by reason of any stock dividend, split, reverse split, combination, recapitalization, reclassification, merger, consolidation or otherwise in such a manner and with such appropriate adjustments as to reflect the intent and meaning of the provisions hereof and so that the rights, privileges, duties and obligations hereunder shall continue with respect to the capital stock of the Corporation as so changed.

Section 10. Benefits of Agreement.

This Agreement shall be binding upon and inure to the benefit of the parties hereto, and each of their respective successors and assigns. Except as otherwise expressly provided herein, no Person not a party to this Agreement, as a third-party beneficiary or otherwise, shall be entitled to enforce any rights or remedies under this Agreement.

 

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Section 11. Notices.

All notices or other communications which are required or permitted hereunder shall be in writing and shall be deemed to have been given if (a) personally delivered or sent by facsimile or electronic mail transmission, (b) sent by nationally recognized overnight courier or (c) sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:

(i) If to the Corporation, to:

Sunnova Energy International Inc.

20 East Greenway Plaza, Suite 475

Houston, Texas 77046

Attention: General Counsel

Facsimile: (713) 229-2715

Email: notices@sunnova.com; treasury@sunnova.com

with copies (which shall not constitute notice) to:

Baker Botts L.L.P.

910 Louisiana Street

Houston, Texas 77002

Attention: Travis Wofford

Facsimile: (713) 229-2715

Email: travis.wofford@bakerbotts.com

(ii) If to any of the ECP Stockholders, to:

Energy Capital Partners, LLC

11943 El Camino Real, Suite 220

San Diego, California 92130

Facsimile: (858) 703-4401

Attention: Christopher Leininger

with copies (which shall not constitute notice) to:

David A. Kurzweil

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022-4834

Facsimile: (212) 751-4864

Email: david.kurzweil@lw.com

(iii) If to the Quantum Stockholders, to:

QSIP LP

c/o Strategic Capital Investment Partners, LP

390 Park Avenue, 10th Floor

New York, NY 10022

Attention David Taylor

with copies (which shall not constitute notice) to:

Soros Fund Management LLC

250 West 55th Street

New York, NY 10019

Attention: Thomas O’Grady

(iv) Any such communication shall be deemed to have been received (a) when delivered, if personally delivered or sent by facsimile or electronic mail transmission, (b) the next Business Day after delivery, if sent by nationally recognized, overnight courier and (c) on the third Business Day following the date on which the piece of mail containing such communication is posted, if sent by first-class mail.

 

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Section 12. Modification; Waiver.

This Agreement may be amended, modified or supplemented only by a written instrument duly executed by the Corporation, the ECP Stockholders and the Quantum Stockholders; provided that any such amendment, modification or supplement that only affects the rights of a party shall only require the consent of such affected party and the Corporation. No course of dealing between the Corporation or its Subsidiaries, the ECP Stockholders (or any of them) or the Quantum Stockholders (or any of them) or any delay in exercising any rights hereunder will operate as a waiver of any rights of any party to this Agreement. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

Section 13. Entire Agreement.

Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the parties in connection therewith, from and after the completion of the IPO.

Section 14. Specific Performance.

Each party to this Agreement acknowledges that a remedy at law for any breach or attempted breach of this Agreement will be inadequate, agrees that each other party to this Agreement shall be entitled to specific performance and injunctive and other equitable relief in case of any such breach or attempted breach, and further agrees to waive (to the extent legally permissible) any legal conditions required to be met for the obtaining of any such injunctive or other equitable relief (including posting any bond in order to obtain equitable relief).

Section 15. Counterparts.

This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts taken together shall constitute but one agreement.

Section 16. Further Assurances.

Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments and other documents as any other party hereto reasonably may request in order to carry out the provisions of this Agreement and the consummation of the transactions contemplated hereby.

Section 17. Director and Officer Actions.

No director or officer of the Corporation shall be personally liable to the Corporation, any ECP Stockholder or any Quantum Stockholder as a result of any acts or omissions taken under this Agreement in good faith.

[Signature Page to Follow]

 

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The parties have signed this agreement as of the date first written above.

 

SUNNOVA ENERGY CORPORATION
By:  

             

Name:   William J. Berger
Title:   Chief Executive Officer

[Signature Page to Stockholders Agreement]


STOCKHOLDERS:
By:  

 

  Name:  
  Title:  

 

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Schedule A

Stockholders

ENERGY CAPITAL PARTNERS III, LP

ENERGY CAPITAL PARTNERS III-A, LP

ENERGY CAPITAL PARTNERS III-B, LP

ENERGY CAPITAL PARTNERS III-C, LP

ENERGY CAPITAL PARTNERS III-D, LP

ENERGY CAPITAL PARTNERS III (SUNNOVA CO-INVEST), LP

QSIP LP

 

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EX-4.3 5 d709190dex43.htm EX-4.3 EX-4.3

Exhibit 4.3

FORM OF SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made as of                             , by and among Sunnova Energy International Inc., a Delaware corporation (the “Company”), and each of the shareholders listed on Schedule A hereto, each of which is referred to in this Agreement as a “Holder.”

RECITALS

WHEREAS, Sunnova Energy Corporation, a Delaware corporation (the “Predecessor Company”), and the Holders are party to that certain Amended and Restated Registration Rights Agreement, dated as of March 29, 2018 (the “Original Registration Rights Agreement”);

WHEREAS, pursuant to the Original Registration Rights Agreement, if the Predecessor Company elects to effect an underwritten registered offering of equity securities of a subsidiary or parent of the Predecessor Company (“Alternative IPO Entity”), rather than the equity securities of the Predecessor Company, including as a result of a reorganization, the parties to the Original Registration Rights Agreement will enter into an agreement providing registration rights with respect to the equity securities of the Alternative IPO Entity;

WHEREAS, on [DATE OF IPO CLOSING], the Predecessor Company effected a reorganization pursuant to which Sunnova Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“MergerSub”), merged with and into the Predecessor Company, with the Predecessor Company surviving as a wholly-owned subsidiary of the Company (the “Reorganization”); and

WHEREAS, as a result of the Reorganization, the Holders and the Company hereby agree that this Agreement shall govern the rights of the Holders to cause the Company to register Common Stock (as defined below) held or issuable to the Holders as set forth in this Agreement and all rights of the Holders under the Original Registration Rights Agreement shall be extinguished;

NOW, THEREFORE, the parties hereby agree as follows:

1. Definitions. For purposes of this Agreement:

1.1 “Adverse Disclosure” means public disclosure of material non-public information that, in the Board of Directors’ good faith judgment, after consultation with independent outside counsel to the Company, (a) would be required to be made in any Registration Statement or report filed with the SEC by the Company so that such Registration Statement from and after its effective date, does not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (b) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement or report; and (c) would have a material adverse effect on the Company or its business or on the Company’s ability to effect a material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction.

1.2 “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital or private equity fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person. For


purposes of this Agreement, (a) “Affiliates” of the GSO Funds shall (i) include any funds managed, advised or sub-advised by GSO Capital Partners LP or any of its Affiliates and (ii) exclude any portfolio companies in which any funds managed, advised or sub-advised by GSO Capital Partners LP or any of its Affiliates have invested; (b) “Affiliates” of the ECP Funds shall (i) include any funds managed, advised or sub-advised by Energy Capital Partners III, LLC or any of its Affiliates and (ii) exclude any portfolio companies in which any funds managed, advised or sub-advised by Energy Capital Partners III, LLC or any of its Affiliates have invested; and (c) “Affiliates” of the Quantum Investor shall (i) include any funds managed, advised or sub-advised by Soros Fund Management LLC or any of its Affiliates and (ii) exclude any portfolio companies in which any funds managed, advised or sub-advised by George Soros, Soros Fund Management LLC, SFM Participation II LP or any of their respective Affiliates have invested.

1.3 “Board of Directors” means the board of directors of the Company.

1.4 “Business Day” means any day of the year on which national banking institutions in Houston, Texas are open to the public for conducting business and are not required or authorized to close.

1.5 “Common Stock” means the common stock, par value $0.01 per share, of the Company.

1.6 “Damages” means any loss, damage, claim or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, claim or liability (or any action in respect thereof) arises out of or is based upon: (a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement of the Company, including any preliminary Prospectus or final Prospectus contained therein or any amendments or supplements thereto; (b) an omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (c) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.

1.7 “Demand Notice” has the meaning given to such term in Section 2.1(a).

1.8 “Demand Period” has the meaning given to such term in Section 2.1(d).

1.9 “Demand Suspension” has the meaning given to such term in Section 2.1(c).

1.10 “ECP Funds” means Energy Capital Partners III, LP, Energy Capital Partners III-A, LP, Energy Capital Partners III-B, LP, Energy Capital Partners III-C, LP, Energy Capital Partners III-D, LP and any Affiliated funds thereof

1.11 “ECP Holders” means the ECP Funds and any of their Affiliates.

1.12 “ECP Representative” means Energy Capital Partners GP III, LP or, upon written notice to the Company from any of the ECP Holders, any other Person appointed in lieu of Energy Capital Partners GP III, LP (or any subsequent ECP Representative) to be the “ECP Representative” by the ECP Holders.

1.13 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

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1.14 “Excluded Registration” means (a) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (b) a registration relating to an SEC Rule 145 transaction; (c) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (d) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.

1.15 “FINRA” means the Financial Industry Regulatory Authority, Inc.

1.16 “Free Writing Prospectus” shall mean any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act.

1.17 “Form S-1” means such form under the Securities Act as in effect on the date hereof, Form F-1 or any successor registration form thereto under the Securities Act subsequently adopted by the SEC.

1.18 “Form S-3” means such form under the Securities Act as in effect on the date hereof, Form F-3 or any registration form thereto under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.

1.19 “GSO Funds” means FS Investment Corporation, FS Investment Corporation II, FS Investment Corporation III and FS Energy and Power Fund and each of their respective Subsidiaries.

1.20 “GSO Holders” means the GSO Funds and any of their Affiliates.

1.21 “Holder” has the meaning given to such term in the preamble.

1.22 “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including, adoptive relationships, of a natural person referred to herein.

1.23 “Initiating Holders” means, collectively, Holders who properly initiate a registration request under this Agreement.

1.24 “IPO” means the Company’s first underwritten public offering of its Common Stock under the Securities Act, which closed on [DATE OF IPO CLOSING].

1.25 “Notice” has the meaning given to such term in Section 3.15.

1.26 “Other Registrable Securities” shall mean all Registrable Securities other than the Registrable Securities held by the ECP Holders, the GSO Holders or the Quantum Holders.

1.27 “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

1.28 “Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including pre- and post-effective amendments to such Registration Statement, and all other material incorporated by reference in such prospectus.

 

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1.29 “Quantum” means Quantum Strategic Partners Ltd.

1.30 “Quantum Affiliate” means (a) any Affiliate of Quantum, Soros Fund Management LLC, SFM Participation II LP or George Soros, (b) any Person that is managed by Soros Fund Management LLC or its Affiliates and (c) any Person that is a charitable organization or trust established by or on behalf of and controlled by any of the members of George Soros’ family, in each case excluding any portfolio company which is, has been or will be (during any time in which it owns Registrable Securities) engaged in any business that is competitive with the business of the Company and its Subsidiaries.

1.31 “Quantum Holders means Quantum and any Quantum Affiliate.

1.32 “Registrable Securities” means (a) any Common Stock owned by the Holders, (b) any Common Stock held by any Holder that may be issued or distributed or be issuable in respect of any such shares by way of conversion, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization or reclassification or similar transaction, (c) any Common Stock issued as a distribution with respect to, or in exchange for or in replacement of any of such shares, and (d) any Common Stock issued or transferred in exchange for or upon conversion of any of such shares as a result of a merger, consolidation, reorganization or otherwise (including, without limitation, any securities issued upon the conversion of the Company to a successor corporation) and any other securities issued to any of the Holder in connection with any such transaction; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Subsection 3.1, and excluding for purposes of Section 2 any Common Stock for which registration rights have terminated pursuant to Subsection 2.13 of this Agreement.

1.33 “Registrable Securities then outstanding” means the number of shares determined by adding the number of shares or units (as applicable) of outstanding Common Stock that are Registrable Securities and the number of shares or units (as applicable) of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/or convertible securities that are Registrable Securities.

1.34 “Registration Statement” means any registration statement of the Company filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

1.35 “Restricted Securities” means the securities of the Company required to be notated with the legend set forth in Subsection 2.12(a) hereof.

1.36 “SEC” means the Securities and Exchange Commission.

1.37 “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.

1.38 “SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.

1.39 “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

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1.40 “Selling Expenses” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Subsection 2.6.

1.41 “Underwritten Offering” means a sale of securities of the Company to an underwriter or underwriters for reoffering to the public.

1.42 “WKSI” means a “well known seasoned issuer” as defined in Rule 405 promulgated under the Securities Act.

2. Registration Rights. The Company covenants and agrees as follows:

2.1 Demand Registration.

(a) Form S-1 Demand. If at any time after one hundred eighty (180) days after the effective date of the Registration Statement for the IPO, the Company receives a request from either (i) the ECP Holders, (ii) the GSO Holders, (iii) the Quantum Holders or (iv) other Holders of at least forty percent (40%) of the Other Registrable Securities then outstanding, in each case that the Company file a Registration Statement on Form S-1 with respect to Registrable Securities having an anticipated aggregate offering price, net of Selling Expenses, in excess of $20 million, then the Company shall (1) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (2) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Registration Statement on Form S-1 under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within ten (10) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.

(b) Form S-3 Demand. If at any time when it is eligible to use Form S-3, the Company receives a request from either (i) the ECP Holders, (ii) the GSO Holders, (iii) the Quantum Holders or (iv) other Holders of at least thirty percent (30%) of the Other Registrable Securities then outstanding that the Company file a Registration Statement, including a shelf registration statement, and if the Company is a WKSI, an automatic shelf registration statement, on Form S-3 with respect to outstanding Registrable Securities of such Holders, then the Company shall (1) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (2) as soon as practicable, and in any event within thirty (30) days after the date such request is given by the Initiating Holders, file a Registration Statement on Form S-3 under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within ten (10) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.

(c) At any time, and from time-to-time, during the period during which a shelf registration statement is effective (the “Shelf Registration Effectiveness Period”) (except during a Demand Suspension, as defined below), any of (i) the ECP Holders, (ii) the GSO Holders, (iii) the Quantum Holders or (iv) other Holders of at least thirty percent (30%) of the Other Registrable Securities then outstanding may notify the Company in writing (the “Takedown Request”) of their intent to sell Registrable Securities covered by the Registration Statement (in whole or in part) in an offering (a “Shelf

 

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Offering”). Such Takedown Request shall specify the aggregate number of Registrable Securities requested to be registered in such Shelf Offering. Within ten (10) days after receipt by the Company of such Takedown Request, the Company shall deliver a written notice (a “Takedown Notice”) to each other Holder informing each such other Holder of its right to include Registrable Securities in such Shelf Offering. As soon as reasonably practicable and in any event no later than five (5) Business Days after receipt of a Takedown Notice (and no later than two (2) Business Days after the receipt of such Demand Notice in the case of a “bought deal,” a “registered direct offering” or an “overnight transaction” where no preliminary prospectus is used), each such other Holder shall have the right to request in writing that the Company include all or a specific portion of the Registrable Securities held by such other Holder in such Shelf Offering and the Company shall include such Registrable Securities in such Shelf Offering.

(d) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a Registration Statement or Takedown Request pursuant to this Subsection 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board of Directors it would be materially detrimental to the Company and its shareholders for such Registration Statement, including any shelf registration statement, to either become effective or remain effective for as long as such Registration Statement otherwise would be required to remain effective, or for the prospectus supplement, related the Registration Statement to be filed pursuant to the Takedown Request, to be filed because such action would: (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require the Company to make an Adverse Disclosure; (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act; or (iv) in the good faith judgment of the underwriters of such registration, otherwise be materially detrimental to the Company and its shareholders for such Registration Statement or prospectus supplement to be filed (a “Demand Suspension”), then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days (or thirty (30) days in the case of clause (iv) after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period, and at least thirty (30) days must elapse between each Demand Suspension. If a Demand Suspension is made because the Registration Statement or Takedown Request would require the Company to make an Adverse Disclosure, such Demand Suspension shall terminate at such time as the public disclosure of such information is made. The Company shall immediately notify the Holders upon the termination of any Demand Suspension, without any further request from a Holder.

(e) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a): (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such Registration Statement to become effective and may only exercise this right once in any twelve (12) month period; (ii) (A) in the case of the ECP Holders, after the Company has effected three (3) registrations requested by the ECP Holders pursuant to Subsection 2.1(a) (excluding the IPO), (B) in the case of the GSO Holders, after the Company has effected two (2) registrations requested by the GSO Holders pursuant to Subsection 2.1(a) (excluding the IPO), (C) in the case of the Quantum Holders, after the Company has effected two (2) registrations requested by the Quantum Holders pursuant to Subsection 2.1(a) (excluding the IPO) and (D) in the case of the other Holders, after the Company has effected two (2) registrations effected by such other Holders pursuant to Subsection 2.1(a) (excluding the IPO) or (iii) if the Initiating Holders propose to dispose of shares or units (as applicable) of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration or offering pursuant to Subsection 2.1(b) or Subsection 2.1(c), respectively, during the period that is thirty (30) days before the Company’s good faith estimate of

 

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the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration or Company Offering, provided that, in the case of Section 2.1(b), the Company is actively employing in good faith commercially reasonable efforts to cause such Registration Statement to become effective, or, in the case of Section 2.1(c), the Company is actively employing in good faith commercially reasonable efforts to cause such Company Offering to take place, and, in any case, the Company may only exercise this right once in any twelve (12) month period. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(e) until such time as the applicable Registration Statement has been declared effective by the SEC and, in the case of a registration pursuant to Subsection 2.1(a), remains effective for not less than (180) days (or such shorter period as shall terminate when all Registrable Securities covered by such Registration Statement have been sold or withdrawn), or if such Registration Statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriter or underwriters, a Prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer (the “Demand Period”). No registration pursuant to Subsection 2.1(a) shall be deemed to have been effected if (i) during the Demand Period such registration is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court or (ii) the conditions to closing specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied other than by reason of a wrongful act, misrepresentation or breach of such applicable underwriting agreement by the Initiating Holders.

(f) Any Holders that have requested its Registrable Securities be included in any registration pursuant to Subsection 2.1(a) may withdraw all or any portion of its Registrable Securities from such registration at any time prior to the effectiveness of the applicable Registration Statement or in the case of an underwritten public offering, prior to the Registration Statement’s latest effective date with regard to the registration (as determined for purposes of Rule 430B(f)(2) under the Securities Act). The Company shall continue all efforts to secure effectiveness of the applicable Registration Statement in respect of the Registrable Securities of any other Holder that has requested inclusion in the Demand Registration pursuant to Subsection 2.1(a) so long as Initiating Holders have requested and not withdrawn all of their Registrable Securities to be included in such registration; provided, however, if the Initiating Holders have requested for all of their Registrable Securities to be withdrawn from such registration, the Company shall immediately cease all efforts to secure effectiveness of the applicable Registration Statement, even if one or more other Holders have requested for Registrable Securities to be included in such applicable Registration Statement pursuant to Subsection 2.1(a) and such withdrawn registration shall not count towards the limitation on registrations set forth in Subsection 2.1(e) so long as the applicable Registration Statement has not been filed or submitted to the SEC.

(g) In the event any Holder requests to participate in a registration pursuant to this Subsection 2.1 in connection with a distribution of Registrable Securities to its partners or members, the registration shall provide for resale by such partners or members, if requested by the Holder.

(h) For purposes of this Section 2.1, the Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 for secondary sales and, during such time as the Company is so qualified, shall effect any registration of secondary sales on Form S-3 after such qualification.

2.2 Company Offering.

(a) If the Company proposes to offer (including, for this purpose, a registration effected by the Company for its shareholders other than the Holders) any of its securities under the Securities Act in connection with the public offering of such securities (including an “at-the market offering,” a “bought deal” or a “registered direct offering”) solely for cash (other than in an Excluded

 

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Registration), the Company shall, at such time, promptly give each Holder notice of such offering (a “Company Offering”). Such notice shall specify, as applicable, the amount of Common Stock to be registered, the proposed filing date of the registration statement or applicable prospectus supplement and the proposed minimum offering price of the Common Stock, in each case to the extent then known. In the case of an offering under a shelf registration statement previously filed or to be filed by the Company pursuant to Rule 415 under the Securities Act, including where the Company qualifies as a WKSI, such notice shall be sent as promptly as reasonably practicable and in any event no later than ten (10) days prior to the expected date of filing of such registration statement or commencement of marketing efforts for such offering (and no later than five (5) days prior in the case of a “bought deal,” a “registered direct offering” or an “overnight transaction” where no preliminary prospectus is used). In the case of a Company Offering under a registration statement to be filed that is not a shelf registration statement, such notice shall be given sent as promptly as reasonably practicable and in any event no later than ten (10) days prior to the expected date of filing of such registration statement. Upon the written request of each Holder given within five (5) Business Days after such notice is given by the Company (except that each Holder shall have two (2) Business Days after the Company gives such notice to request inclusion of Registrable Securities in the Company Offering in the case of a “bought deal,” a “registered direct offering” or an “overnight transaction” where no preliminary prospectus is used), the Company shall, subject to the provisions of Subsection 2.3, as promptly as reasonably practicable cause to be registered or include in the prospectus supplement, as applicable, all of the Registrable Securities that each such Holder has requested to be included in such registration. The Company shall have the right to terminate or withdraw any offering initiated by it under this Subsection 2.2 before the effective date of such offering, whether or not any Holder has elected to include Registrable Securities in such offering. The expenses (other than Selling Expenses) of such withdrawn offering shall be borne by the Company in accordance with Subsection 2.6.

(b) No offering of Registrable Securities effected pursuant to a request under this Subsection 2.2 shall be deemed to have been effected pursuant to Subsection 2.1 or shall relieve the Company of its obligations under Subsection 2.1.

(c) Each Holder shall be permitted to withdraw all or part of its Registrable Securities in an offering under this Subsection 2.2 by giving written notice to the Company of its request to withdraw; provided, that (i) such request must be made in writing prior to the effectiveness of such Registration Statement or, in the case of a public offering, at least five (5) Business Days prior to the earlier of the anticipated filing of the “red herring” Prospectus, if applicable, and the anticipated pricing or trade date and (ii) such withdrawal shall be irrevocable and, after making such withdrawal, the Holder shall no longer have any right to include Registrable Securities in such offering as to which such withdrawal was made.

2.3 Underwriting Requirements.

(a) If, pursuant to Subsection 2.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Subsection 2.1, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Initiating Holders and shall be reasonably acceptable to the Company. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Subsection 2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing

 

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that marketing factors require a limitation on the number of shares or units (as applicable) to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Securities held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.

(b) In connection with any offering involving an underwriting of shares or units (as applicable) of the Company’s capital stock pursuant to Subsection 2.2, the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the total number of securities, including Registrable Securities, requested by Holders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. Notwithstanding the foregoing, in no event shall (i) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering, or (ii) the number of Registrable Securities included in the offering be reduced below thirty percent (30%) of the total number of securities included in such offering. For purposes of the provision in this Subsection 2.3(b) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “selling Holder,” as defined in this sentence.

(c) For purposes of Subsection 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Subsection 2.3(a), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such Registration Statement are actually included.

(d) In the case of an underwritten offering under Subsection 2.1, the price, underwriting discount and other financial terms for the Registrable Securities shall be determined by the Initiating Holders and shall be reasonably acceptable to the Company. In addition, in the case of any underwritten offering under Subsection 2.2, each of the Holders may, subject to any limitations on withdrawal contained herein, withdraw all or part of their request to participate in the registration pursuant Subsection 2.2 after being advised of such price, discount and other terms and shall not be required to enter into any agreements or documentation that would require otherwise.

 

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2.4 Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(a) prepare and file a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective, and, to keep such Registration Statement effective for a period of up to one hundred eighty (180) days or, if earlier, until the distribution contemplated in the Registration Statement has been completed, provided, however, that (i) such one hundred eighty (180) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of an automatic Registration Statement on Form S-3, where the Company shall use its commercially reasonable efforts to keep such Registration Statement effective for three years from the date of effectiveness, which period may be extended, at the request of the Holders of a majority of the Registrable Securities registered thereunder, until the earlier of (i) the effective date of the new Registration Statement or (ii) 180 days after the third anniversary of the initial effective date of the prior automatic Registration Statement on Form S-3; in each case, subject to compliance with applicable SEC rules.

(b) (i) prepare and file with the SEC such amendments, including post-effective amendments, and supplements to such Registration Statement, and the Prospectus used in connection with such Registration Statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such Registration Statement through the applicable periods during which the Company is obligated to maintain the effectiveness of such Registration Statement, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 promulgated by the SEC under the Securities Act; and (iii) respond to any comments received from the SEC with respect to each Registration Statement or any amendment thereto;

(c) that, to the extent practicable, at least five (5) Business Days prior to filing any registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to the holders of the Registrable Securities covered by such registration statement and their counsel, copies of all such documents proposed to be filed;

(d) furnish to the selling Holders such numbers of copies of the signed Registration Statement, any post-effective amendment thereto, a Prospectus, including a preliminary Prospectus, as required by the Securities Act, any amendments or supplements thereto, any Free Writing Prospectus, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;

(e) use its commercially reasonable efforts to register and qualify the securities covered by such Registration Statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

(f) in the event of any underwritten public offering, (i) enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering and (ii) cooperate with the holders of Registrable Securities to be included in such registration and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends other than as may be required by applicable law, by the stock transfer agent, depositary or their nominee, if applicable) representing securities to be sold under such registration, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such holders may request;

 

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(g) cooperate with each Holder and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

(h) to the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any shelf Registration Statement, include in such shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment;

(i) use its commercially reasonable efforts to cause all such Registrable Securities covered by such Registration Statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;

(j) (i) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration, and (ii) cooperate with any selling Holders to facilitate the timely preparation and delivery of book-entry interests representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which book-entry interests shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities laws, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request in writing.

(k) (i) promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such Registration Statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, (ii) cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such Registration Statement and to conduct appropriate due diligence in connection therewith (as shall be necessary, in the opinion of such seller or underwriter’s legal counsel, to conduct a reasonable investigation with the meaning of Section 11(b)(3) of the Securities Act), and (iii) cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet with prospective investors in presentations, meetings and road shows.

(l) notify each selling Holder, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;

 

 

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(m) after such Registration Statement becomes effective, promptly notify each selling Holder of any (i) request by the SEC that the Company amend or supplement such Registration Statement or Prospectus or (ii) stop order or other order suspending the effectiveness of any registration statement, issued or threatened in writing by the SEC in connection therewith, and use its commercially reasonable efforts to prevent the entry of such stop order or to remove it or obtain withdrawal of it as soon as practicable if entered;

(n) use its commercially reasonable efforts to obtain:

(i) at the time of pricing of any underwritten offering (including an “at-the-market offering,” a “bought deal” or a “registered direct offering”) a “cold comfort letter” from the Company’s independent registered public accounting firm covering such matters of the type customarily covered by “cold comfort letters” as the Holders and the underwriters reasonably request; and

(ii) at the time of any sale in an underwritten offering pursuant to the registration statement, a “bring-down comfort letter,” dated as of the date of such sale, from the Company’s independent registered public accountants covering such matters of the type customarily covered by “bring-down comfort letters” as the Holders and the underwriters reasonably request;

(o) use its commercially reasonable efforts to obtain, at the time of effectiveness of each registration or, in the case of a shelf registration, at the time of pricing, and at the time of any sale pursuant to each registration, an opinion or opinions addressed to the holders of the Registrable Securities to be included in such registration and the underwriter or underwriters, if any, in customary form and scope from legal counsel for the Company (who may be its internal legal counsel);

(p) promptly notify each seller of Registrable Securities covered by such registration, upon discovery by an executive officer of the Company that the prospectus included in such registration, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly thereafter prepare and file with the SEC and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers or prospective purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they are made; and

(q) enter into such agreements (including underwriting agreements in customary form) and take such other actions as the Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including customary holdback / lock-up provisions.

In addition, the Company shall ensure that, at all times after any Registration Statement covering a public offering of securities of the Company under the Securities Act shall have become effective, its insider trading policy shall provide that the directors of the Company may implement a trading program under Rule 10b5-1 of the Exchange Act.

2.5 Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.

 

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2.6 Expenses of Registration. All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 2, including all registration, filing, and qualification fees (including fees and expenses (a) with respect to filings required to be made with the trading market and (b) in compliance with applicable state securities or “Blue Sky” laws); printers’ and accounting fees; all reasonable out-of-pocket expenses relating to marketing the sale of the Registrable Securities, including expenses related to conducting a “road show”; fees and disbursements of counsel, auditors and accountants for the Company; and the reasonable fees and disbursements of one counsel for the selling Holders (“Selling Holder Counsel”), shall be borne and paid by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Subsection 2.1 if the registration request is subsequently withdrawn at the request of the Initiating Holder(s) (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Initiating Holder(s) agree to forfeit their right to one registration pursuant to Subsection 2.1(a); provided further, that if, at the time of such withdrawal, the Holders shall have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information then the Holders shall not be required to pay any of such expenses and shall not forfeit their right to one registration pursuant to Subsection 2.1(a). All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.

2.7 Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

2.8 Indemnification. If any Registrable Securities are included in a Registration Statement under this Section 2:

(a) To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.

(b) To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its directors, each of its officers who has signed the Registration Statement, each Person (if any) who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such Registration Statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in

 

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conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided, further, that in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Subsections 2.8(b) and 2.8(d) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.

(c) Promptly after receipt by an indemnified party under this Subsection 2.8 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Subsection 2.8, give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Subsection 2.8, to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action. The failure to give notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Subsection 2.8.

(d) To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either: (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Subsection 2.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Subsection 2.8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Subsection 2.8, then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such Registration Statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided, further, that in no event shall a Holder’s liability pursuant to this Subsection 2.8(d), when combined with the amounts paid or payable by such Holder pursuant to Subsection 2.8(b), exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of willful misconduct or fraud by such Holder.

 

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(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

(f) Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Subsection 2.8 shall survive the completion of any offering of Registrable Securities in a registration under this Section 2, and otherwise shall survive the termination of this Agreement.

2.9 Reports Under Exchange Act. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company shall:

(a) make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after the effective date of the Registration Statement filed by the Company for the IPO;

(b) use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and

(c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the Registration Statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so qualifies); and (ii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).

2.10 Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders of a majority of the Registrable Securities then outstanding, enter into any agreement with any holder or prospective holder of any securities of the Company that would (a) allow such holder or prospective holder to include such securities in any registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that the inclusion of such securities will not reduce the number of the Registrable Securities of the Holders that are included; or (b) allow such holder or prospective holder to initiate a demand for registration of any securities held by such holder or prospective holder.

 

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2.11 “Market Stand-off Agreement. Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final Prospectus relating to the registration by the Company for its own behalf of shares or units (as applicable) of its Common Stock or any other equity securities under the Securities Act on a Registration Statement on Form S-1, or Form S-3, and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days in the case of the IPO), (a) lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares or units (as applicable) of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock held immediately before the effective date of the Registration Statement for such offering or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this Subsection 2.11 shall apply only to the IPO, shall not apply to the sale of any shares or units (as applicable) to an underwriter pursuant to an underwriting agreement, or the transfer of any shares or units (as applicable) to any trust for the direct or indirect benefit of the Holder or the immediate family of the Holder, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided, further, that any such transfer shall not involve a disposition for value, and shall be applicable to the Holders only if all officers and directors are subject to the same restrictions and the Company uses commercially reasonable efforts to obtain a similar agreement from all Holders individually owning more than one percent (1%) of the Company’s outstanding Common Stock (after giving effect to the conversion into Common Stock of any other outstanding securities of the Company). The underwriters in connection with such registration are intended third-party beneficiaries of this Subsection 2.11 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with such registration that are consistent with this Subsection 2.11 or that are necessary to give further effect thereto. Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply pro rata to all Holders subject to such agreements, based on the number of shares or units (as applicable) subject to such agreements.

2.12 Restrictions on Transfer.

(a) Each certificate, instrument, or book entry representing (i) the Common Stock, (ii) the Registrable Securities, and (iii) any other securities issued in respect of the securities referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Subsection 2.12(b)) be notated with a legend substantially in the following form:

THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES OR UNITS (AS APPLICABLE) MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.

 

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The Holders consent to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Subsection 2.12.

(b) The holder of such Restricted Securities, by acceptance of ownership thereof, agrees to comply in all respects with the provisions of this Section 2. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a Registration Statement under the Securities Act covering the proposed transaction, the Holder thereof shall give notice to the Company of such Holder’s intention to effect such sale, pledge, or transfer. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at such Holder’s expense by either (i) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration under the Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto; or (iii) any other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities Act, whereupon the Holder of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by the Holder to the Company. The Company will not require such a legal opinion or “no action” letter (x) in any transaction in compliance with SEC Rule 144; or (y) in any transaction in which such Holder distributes Restricted Securities to an Affiliate of such Holder for no consideration; provided that each transferee agrees in writing to be subject to the terms of this Subsection 2.12. Each certificate, instrument, or book entry representing the Restricted Securities transferred as above provided shall be notated with, except if such transfer is made pursuant to SEC Rule 144, the appropriate restrictive legend set forth in Subsection 2.12(a), except that such certificate instrument, or book entry shall not be notated with such restrictive legend if, in the opinion of counsel for such Holder and the Company, such legend is not required in order to establish compliance with any provisions of the Securities Act.

2.13 Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Subsections 2.1 or 2.2 shall terminate at such time as SEC Rule 144(b)(1) under the Securities Act (or any successor provision) is available for the sale of all of such Holder’s shares without any need to comply with the public information requirements of SEC Rule 144(b)(1) (or any successor provision) or any such shares are sold pursuant to SEC Rule 144.

3. Miscellaneous.

3.1 Successors and Assigns. The rights under this Agreement may be assigned (but only with all related obligations) by a Holder to a transferee of Registrable Securities that (a) is an Affiliate of a Holder; (b) is a Holder’s Immediate Family Member or trust for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members; or (c) after such transfer, holds at least one percent (1%) of the Company’s then outstanding Registrable Securities; provided, however, that (i) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and (ii) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement, including the

 

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provisions of Subsection 2.11. For the purposes of determining the number of shares or units (as applicable) of Registrable Securities held by a transferee, the holdings of a transferee (1) that is an Affiliate, member or stockholder of a Holder; (2) who is a Holder’s Immediate Family Member; or (3) that is a trust for the benefit of an individual Holder or such Holder’s Immediate Family Member shall be aggregated together and with those of the transferring Holder; provided, further, that all transferees who would not qualify individually for assignment of rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices, or taking any action under this Agreement. The terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

3.2 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

3.3 Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

3.4 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (a) personal delivery to the party to be notified; (b) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next Business Day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) Business Day after the Business Day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on Schedule A hereto, or to the principal office of the Company and to the attention of the Chief Executive Officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Subsection 3.4.

3.5 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company and the Holders of seventy-five percent (75%) of the Registrable Securities then outstanding; provided that the Company may in its sole discretion waive compliance with Subsection 2.12(b) (and the Company’s failure to object promptly in writing after notification of a proposed assignment allegedly in violation of Subsection 2.12(b) shall be deemed to be a waiver); and provided further, that any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. The Company shall give prompt notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, termination, or waiver. Any amendment, termination, or waiver effected in accordance with this Subsection 3.5 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision. Notwithstanding the foregoing, in no event may the demand registration rights granted to any Holder pursuant to Section 2.1 of this Agreement be removed without the prior written consent of such Holders.

 

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3.6 Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

3.7 Entire Agreement. This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof (other than any lock-up or similar agreement between any Holder and any underwriter), and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled. This Agreement hereby amends, restates and supersedes the Original Registration Rights Agreement in all respects.

3.8 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to the conflicts of law principles of such State. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the courts of the State of Delaware sitting in New Castle County and to the jurisdiction of the United States District Court sitting in Wilmington, Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the courts of the State of Delaware sitting in New Castle County or the United States District Court sitting in Wilmington, Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

3.9 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

3.10 Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

 

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3.11 Other Interpretive Matters. For purposes of this Agreement, (a) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period is excluded, and if the last day of such period is a non-Business Day, the period in question ends on the next succeeding Business Day, (b) unless the context otherwise requires, all references in this Agreement to any “Article,” “Section” or “Exhibit” are to the corresponding Article, Section or Exhibit of this Agreement, (c) the word “including,” or any variation thereof, means “including, without limitation” and does not limit any general statement that it follows to the specific or similar items or matters immediately following it, and (d) all references to dollar amounts are expressed in United States Dollars. As used herein, the singular shall include the plural, the plural shall include the singular and any use of the male or female gender shall include the other gender, all wherever the same shall be applicable and when the context shall admit or require.

3.12 No Recourse. Notwithstanding anything to the contrary that may be expressed or implied in this Agreement, and notwithstanding the fact that any Holder or its Affiliates or any of its or their successors or permitted assignees may be a partnership or a limited liability company, the Company, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no Person other than the Holders and their respective successors and permitted assignees shall have any obligation hereunder, and that it has no rights of recovery against, and no recourse hereunder against, any former, current or future director, officer, agent, advisor, attorney, representative, Affiliate, manager or employee of any Holder (or any of its successors or assignees), against any former, current or future general or limited partner, manager, member or stockholder of any Holder or any Affiliate thereof or against any former, current or future director, officer, agent, advisor, attorney, representative, employee, Affiliate, assignee, general or limited partner, stockholder, manager or member of any of the foregoing, whether by or through attempted piercing of the corporate veil, by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law.

3.13 Specific Performance. The rights of each party to consummate the transactions contemplated hereby are agreed to be unique, and recognizing that the remedy at law for any breach or threatened breach by a party hereto of the agreements and conditions set forth herein would be inadequate, and further recognizing that any such breach or threatened breach would cause immediate, irreparable and permanent damage to the parties, the extent of which would be impossible or difficult to ascertain, the parties hereto agree that in the event of any such breach or threatened breach, and in addition to any and all remedies at law or otherwise provided herein, any party hereto may specifically enforce the terms of this Agreement and may obtain temporary and/or permanent injunctive relief (including a mandatory injunction) without the necessity of proving actual damage or the lack of an adequate remedy at law and, to the extent permissible under applicable rules, provision and statutes, a temporary injunction may be granted immediately upon the commencement of any suit hereunder regardless of whether the breaching party or parties have actually received notice thereof. Such remedy shall be cumulative and not exclusive, and shall be in addition to any other remedy or remedies available to the parties.

3.14 ECP Representative. Each of the ECP Holders has designated the ECP Representative to act as its representative with respect to the making of, and the delivery and receipt of, all notices, elections, approvals, requests or other instructions or determinations (including as to whether any condition has been met to the satisfaction of such ECP Holder) (each, a “Notice”) and to otherwise act on behalf of any or all of the ECP Holders with respect to any Notices delivered in connection with

 

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this Agreement. The ECP Holders shall cause the ECP Representative to act at the direction of the ECP Holders holding a majority of Registrable Securities held by all of the ECP Holders with respect to all such Notices. The Company shall direct any Notice to be made to any ECP Holder to the ECP Representative and agree that any Notice delivered under this Agreement by the ECP Representative shall be deemed to be a Notice delivered by the ECP Holders. Any Notice made to the ECP Representative (referencing the ECP Holders) shall be deemed to have been made to the ECP Holders in the form and at the time made to the ECP Representative.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first written above.

 

COMPANY:

Sunnova Energy International Inc.

By: 

   

Name

 

Title

 

[Signature Page to Second Amended and Restated Registration Rights Agreement]


HOLDERS:

By: 

   
 

Name:

 
 

Title:

 

 

[Signature Page to Second Amended and Restated Registration Rights Agreement]


SCHEDULE A

Holders

 

Name

  

Address

  

Schedule A

EX-4.4 6 d709190dex44.htm EX-4.4 EX-4.4

Exhibit 4.4

FORM OF AMENDED AND RESTATED PIGGY-BACK REGISTRATION RIGHTS AGREEMENT

This AMENDED AND RESTATED PIGGY-BACK REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made as of                             , by and among Sunnova Energy International Inc., a Delaware corporation (the “Company”), and each of the shareholders listed on Schedule A hereto, each of which is referred to in this Agreement as a “Holder”.

RECITALS

WHEREAS, Sunnova Energy Corporation, a Delaware corporation (the “Predecessor Company”), and the Holders are party to that certain Amended and Restated Piggy-Back Registration Rights Agreement, dated as of August 30, 2018 (the “Original Piggy-back Registration Rights Agreement”);

WHEREAS, pursuant to the Original Piggy-back Registration Rights Agreement, if the Predecessor Company elects to effect an underwritten registered offering of equity securities of a subsidiary or parent of the Predecessor Company (“Alternative IPO Entity”), rather than the equity securities of the Predecessor Company, including as a result of a reorganization, the parties to the Original Piggy-back Registration Rights Agreement will enter into an agreement providing registration rights with respect to the equity securities of the Alternative IPO Entity;

WHEREAS, on                             , the Predecessor Company effected a reorganization pursuant to which Sunnova Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“MergerSub”), merged with and into the Predecessor Company, with the Predecessor Company surviving as a wholly-owned subsidiary of the Company (the “Reorganization”);

WHEREAS, certain other shareholders entered into that certain Second Amended and Restated Registration Rights Agreement with the Company, dated as of                              (the “Existing Registration Rights Agreement”); and

WHEREAS, as a result of the Reorganization the Holders and the Company hereby agree that this Agreement shall govern the rights of the Holders to cause the Company to register Common Stock (as defined below) held or issuable to the Holders as set forth in this Agreement and all rights of the Holders under the Original Piggy-back Registration Rights Agreement shall be extinguished;

NOW, THEREFORE, the parties hereby agree as follows:

1. Definitions. For purposes of this Agreement:

1.1 “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital or private equity fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person. For purposes of this Agreement, “Affiliates” of a Holder shall (a) include any funds managed, advised or sub-advised by a Holder or any of its Affiliates and (b) exclude any portfolio companies in which any funds managed, advised or sub-advised by a Holder or any of its Affiliates have invested.

1.2 “Board of Directors” means the board of directors of the Company.

 

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1.3 “Business Day” means any day of the year on which national banking institutions in Houston, Texas are open to the public for conducting business and are not required or authorized to close.

1.4 “Common Stock” means the common stock, par value $0.01 per share, of the Company.

1.5 “Damages” means any loss, damage, claim or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, claim or liability (or any action in respect thereof) arises out of or is based upon: (a) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement of the Company, including any preliminary Prospectus or final Prospectus contained therein or any amendments or supplements thereto; (b) an omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (c) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.

1.6 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

1.7 “Excluded Registration” means (a) a registration relating to the sale of securities to employees or directors of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (b) a registration relating to an SEC Rule 145 transaction; (c) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; (d) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered; or (e) in connection with any dividend or distribution reinvestment or similar plan.

1.8 “FINRA” means the Financial Industry Regulatory Authority, Inc.

1.9 “Free Writing Prospectus” shall mean any “free writing prospectus” as defined in Rule 405 promulgated under the Securities Act.

1.10 “Form S-1” means such form under the Securities Act as in effect on the date hereof, Form F-1 or any successor registration form thereto under the Securities Act subsequently adopted by the SEC.

1.11 “Form S-3” means such form under the Securities Act as in effect on the date hereof, Form F-3 or any registration form thereto under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.

1.12 “Holder” means any holder of Registrable Securities who is a party to this Agreement or a Joinder Agreement.

1.13 “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including, adoptive relationships, of a natural person referred to herein.

 

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1.14 “IPO” means the Company’s first underwritten public offering of its Common Stock under the Securities Act, which closed on                             .

1.15 “Joinder Agreement” means a Joinder Agreement substantially in the form attached hereto as Exhibit A.

1.16 “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

1.17 “Prospectus” means the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including pre- and post-effective amendments to such Registration Statement, and all other material incorporated by reference in such prospectus.

1.18 “Registrable Securities” means (a) any Common Stock held by the Holders, (b) any Common Stock held by the Holders that may be issued or distributed or be issuable in respect of any such shares by way of conversion, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization or reclassification or similar transaction, (c) any Common Stock issued as a distribution with respect to, or in exchange for or in replacement of any of such shares, and (d) any Common Stock issued or transferred in exchange for or upon conversion of any of such shares as a result of a merger, consolidation, reorganization or otherwise (including, without limitation, any securities issued upon the conversion of the Company to a successor corporation) and any other securities issued to the Holders in connection with any such transaction; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Subsection 3.1, and excluding for purposes of Section 2 any Common Stock for which registration rights have terminated pursuant to Subsection 2.13 of this Agreement.

1.19 “Registrable Securities then outstanding” means the number of shares determined by adding the number of shares or units (as applicable) of outstanding Common Stock that are Registrable Securities and the number of shares or units (as applicable) of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/or convertible securities that are Registrable Securities.

1.20 “Registration Statement” means any registration statement of the Company filed with, or to be filed with, the SEC under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

1.21 “Restricted Securities” means the securities of the Company required to be notated with the legend set forth in Subsection 2.12(a) hereof.

1.22 “SEC” means the U. S. Securities and Exchange Commission.

1.23 “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.

1.24 “SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.

1.25 “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

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1.26 “Selling Expenses” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Subsection 2.6.

1.27 “Underwritten Offering” means a sale of securities of the Company to an underwriter or underwriters for reoffering to the public.

1.28 “WKSI” means a “well known seasoned issuer” as defined in Rule 405 promulgated under the Securities Act.

2. Registration Rights. The Company covenants and agrees as follows:

2.1 [Reserved].

2.2 Company Offering.

(a) If the Company proposes to offer (including, for this purpose, a registration effected by the Company for shareholders other than the Holders) any of its shares of Common Stock under the Securities Act in connection with the public offering of such securities (including an “at-the market offering,” a “bought deal” or a “registered direct offering”) solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give each Holder notice of such offering (a “Company Offering”). Such notice shall specify, as applicable, the amount of Common Stock to be registered, the proposed filing date of the registration statement or applicable prospectus supplement and the proposed minimum offering price of the Common Stock, in each case to the extent then known. In the case of an offering under a shelf registration statement previously filed or to be filed by the Company pursuant to Rule 415 under the Securities Act, including where the Company qualifies as a WKSI, such notice shall be sent as promptly as reasonably practicable and in any event no later than ten (10) days prior to the expected date of filing of such registration statement or commencement of marketing efforts for such offering (and no later than five (5) days prior in the case of a “bought deal,” a “registered direct offering” or an “overnight transaction” where no preliminary prospectus is used). In the case of a Company Offering under a registration statement to be filed that is not a shelf registration statement, such notice shall be sent as promptly as reasonably practicable and in any event no later than ten (10) days prior to the expected date of filing of such registration statement. Upon the written request of each Holder given within five (5) Business Days after such notice is given by the Company (except that each Holder shall have two (2) Business Days after the Company gives such notice to request inclusion of Registrable Securities in the Company Offering in the case of a “bought deal,” a “registered direct offering” or an “overnight transaction” where no preliminary prospectus is used), the Company shall, subject to the provisions of Subsection 2.3, as promptly as reasonably practicable cause to be registered or include in the prospectus supplement, as applicable, all of the Registrable Securities that each such Holder has requested to be included in such registration. The Company shall have the right to terminate or withdraw any offering initiated by it under this Subsection 2.2 before the effective date of such offering, whether or not any Holder has elected to include Registrable Securities in such offering. The expenses (other than Selling Expenses) of such withdrawn offering shall be borne by the Company in accordance with Subsection 2.6.

(b) [Reserved].

(c) Each Holder shall be permitted to withdraw all or part of its Registrable Securities in an offering under this Subsection 2.2 by giving written notice to the Company of its request to withdraw; provided, that (i) such request must be made in writing prior to the effectiveness of such

 

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Registration Statement or, in the case of a public offering, at least five (5) Business Days prior to the earlier of the anticipated filing of the “red herring” Prospectus, if applicable, and the anticipated pricing or trade date and (ii) such withdrawal shall be irrevocable and, after making such withdrawal, the Holder shall no longer have any right to include Registrable Securities in such offering as to which such withdrawal was made.

2.3 Underwriting Requirements.

(a) If the Company Offering under which the Holders are entitled to registration rights pursuant to Subsection 2.2(a) hereof is a registration effected by the Company for shareholders pursuant to Subsection 2.1 of the Existing Registration Rights Agreement and the Initiating Holders (as defined in the Existing Registration Rights Agreement) intend to distribute the securities covered by their request by means of an underwriting, the Company shall include such information in its notice to the shareholders under Subsection 2.2(a). In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration pursuant to Subsection 2.2(a) shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting and any other participating shareholders, as appropriate. Notwithstanding any other provision of this Subsection 2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares or units (as applicable) to be underwritten, then the number of securities or Registrable Securities that may be included in the underwriting shall be allocated (a) first to the holders of securities that have registration rights under the Existing Registration Rights Agreement and the Company and (b) thereafter among the Holders and the holders of Common Stock other than Registrable Securities, in proportion (as nearly as practicable) to the number of Registrable Securities and the number of shares of Common Stock other than Registrable Securities (on a fully-diluted, as converted basis) owned by such holders or in such other proportion as shall mutually be agreed to by all such selling holders.

(b) In connection with any offering involving an underwriting of shares or units (as applicable) of the Company’s capital stock pursuant to Subsection 2.2(a), the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the total number of securities, including Registrable Securities, requested by holders to be included in such offering pursuant to Subsection 2.2(a) exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the securities requested to be registered can be included in such offering, then the securities that are included in such offering shall be allocated (i) first to holders of securities that have registration rights under the Existing Registration Rights Agreement and the Company and (ii) thereafter among the Holders and the holders of Common Stock other than Registrable Securities in proportion (as nearly as practicable to) the number of Registrable Securities and the number of shares of Common Stock other than Registrable Securities (on a fully diluted, as converted basis) owned by such holders or in such other proportions as shall mutually be agreed to by all such selling holders. For purposes of the provision in this Subsection 2.3 concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate

 

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Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “selling Holder,” as defined in this sentence.

(c) [Reserved].

(d) In the case of any underwritten offering under Subsection 2.2, each of the Holders may, subject to any limitations on withdrawal contained herein, withdraw all or part of their request to participate in the registration pursuant Subsection 2.2 after being advised of such price, discount and other terms and shall not be required to enter into any agreements or documentation that would require otherwise.

2.4 Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(a) prepare and file a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective, and, to keep such Registration Statement effective for a period of up to one hundred eighty (180) days or, if earlier, until the distribution contemplated in the Registration Statement has been completed, provided, however, that (i) such one hundred eighty (180) day period shall be extended for a period of time equal to the period the Holders refrain, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of an automatic Registration Statement on Form S-3, where the Company shall use its commercially reasonable efforts to keep such Registration Statement effective for three years from the date of effectiveness.

(b) (i) prepare and file with the SEC such amendments, including post-effective amendments, and supplements to such Registration Statement, and the Prospectus used in connection with such Registration Statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such Registration Statement through the applicable periods during which the Company is obligated to maintain the effectiveness of such Registration Statement, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 promulgated by the SEC under the Securities Act; and (iii) respond to any comments received from the SEC with respect to each Registration Statement or any amendment thereto;

(c) to the extent practicable, at least five (5) Business Days prior to filing any registration statement or prospectus or any amendments or supplements thereto, furnish to the holders of the Registrable Securities covered by such registration statement and their counsel, copies of all such documents proposed to be filed;

(d) furnish to the selling Holders such numbers of copies of the signed Registration Statement, any post-effective amendment thereto, a Prospectus, including a preliminary Prospectus, as required by the Securities Act, any amendments or supplements thereto, any Free Writing Prospectus, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;

(e) use its commercially reasonable efforts to register and qualify the securities covered by such Registration Statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

 

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(f) in the event of any underwritten public offering, (i) enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering and (ii) cooperate with the holders of Registrable Securities to be included in such registration and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends other than as may be required by applicable law, by the stock transfer agent, depositary or their nominee, if applicable) representing securities to be sold under such registration, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such holders may request;

(g) cooperate with each Holder and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

(h) to the extent the Company is eligible under the relevant provisions of Rule 430B under the Securities Act, if the Company files any shelf Registration Statement, include in such shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment;

(i) use its commercially reasonable efforts to cause all such Registrable Securities covered by such Registration Statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;

(j) (i) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case, not later than the effective date of such registration and (ii) cooperate with any selling Holders to facilitate the timely preparation and delivery of book-entry interests representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which book-entry interests shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities laws, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request in writing.

(k) (i) promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such Registration Statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, (ii) cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such Registration Statement and to conduct appropriate due diligence in connection therewith (as shall be necessary, in the opinion of such

 

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seller or underwriter’s legal counsel, to conduct a reasonable investigation with the meaning of Section 11(b)(3) of the Securities Act), and (iii) cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet with prospective investors in presentations, meetings and road shows.

(l) notify each selling Holder, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;

(m) after such Registration Statement becomes effective, promptly notify each selling Holder of any (i) request by the SEC that the Company amend or supplement such Registration Statement or Prospectus or (ii) stop order or other order suspending the effectiveness of any registration statement, issued or threatened in writing by the SEC in connection therewith, and use its commercially reasonable efforts to prevent the entry of such stop order or to remove it or obtain withdrawal of it as soon as practicable if entered;

(n) use its commercially reasonable efforts to obtain:

(i) at the time of pricing of any underwritten offering (including an “at-the-market offering,” a “bought deal” or a “registered direct offering”) a “cold comfort letter” from the Company’s independent registered public accounting firm covering such matters of the type customarily covered by “cold comfort letters” as the Holders and the underwriters reasonably request; and

(ii) at the time of any sale in an underwritten offering pursuant to the registration statement, a “bring-down comfort letter,” dated as of the date of such sale, from the Company’s independent registered public accountants covering such matters of the type customarily covered by “bring-down comfort letters” as the Holders and the underwriters reasonably request;

(o) use its commercially reasonable efforts to obtain, at the time of effectiveness of each registration or, in the case of a shelf registration, at the time of pricing, and at the time of any sale pursuant to each registration, an opinion or opinions addressed to the holders of the Registrable Securities to be included in such registration and the underwriter or underwriters, if any, in customary form and scope from legal counsel for the Company (who may be its internal legal counsel);

(p) promptly notify each seller of Registrable Securities covered by such registration, upon discovery by an executive officer of the Company that the prospectus included in such registration, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly thereafter prepare and file with the SEC and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers or prospective purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they are made; and

(q) enter into such agreements (including underwriting agreements in customary form) and take such other actions as the Holders shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including customary holdback / lock-up provisions.

 

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In addition, the Company shall ensure that, at all times after any Registration Statement covering a public offering of securities of the Company under the Securities Act shall have become effective, its insider trading policy shall provide that the directors of the Company may implement a trading program under Rule 10b5-1 of the Exchange Act.

2.5 Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself and the Registrable Securities held by it as is reasonably required to effect the registration of such Holder’s Registrable Securities.

2.6 Expenses of Registration. All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 2, including all registration, filing, and qualification fees (including fees and expenses (a) with respect to filings required to be made with the trading market and (b) in compliance with applicable state securities or “Blue Sky” laws); printers’ and accounting fees; all reasonable out-of-pocket expenses relating to marketing the sale of the Registrable Securities, including expenses related to conducting a “road show”; fees and disbursements of counsel, auditors and accountants for the Company; and the reasonable fees and disbursements of no more than one counsel for all selling Holders and other selling shareholders together (“Selling Holder Counsel”), shall be borne and paid by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Subsection 2.1 of the Existing Registration Rights Agreement if the registration request is subsequently withdrawn at the request of the Initiating Holder(s) (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Initiating Holder(s) agree to forfeit their right to one registration; provided further, that if, at the time of such withdrawal, the Holders shall have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information then the Holders shall not be required to pay any of such expenses. All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.

2.7 Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

2.8 Indemnification. If any Registrable Securities are included in a Registration Statement under this Section 2:

(a) To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.

 

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(b) To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its directors, each of its officers who has signed the Registration Statement, each Person (if any) who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such Registration Statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further, that in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Subsections 2.8(b) and 2.8(d) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.

(c) Promptly after receipt by an indemnified party under this Subsection 2.8 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Subsection 2.8, give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Subsection 2.8, to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action. The failure to give notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Subsection 2.8.

(d) To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either: (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Subsection 2.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Subsection 2.8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Subsection 2.8, then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other

 

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actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such Registration Statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided further, that in no event shall a Holder’s liability pursuant to this Subsection 2.8(d), when combined with the amounts paid or payable by such Holder pursuant to Subsection 2.8(b), exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of willful misconduct or fraud by such Holder.

(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

(f) Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Subsection 2.8 shall survive the completion of any offering of Registrable Securities in a registration under this Section 2, and otherwise shall survive the termination of this Agreement.

2.9 Reports Under Exchange Act. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company shall:

(a) make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after the effective date of the Registration Statement filed by the Company for the IPO;

(b) use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and

(c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the Registration Statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so qualifies); and (ii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).

 

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2.10 Limitations on Registration Rights. Notwithstanding anything to the contrary, the Holders have no right to, and shall not, (a) include any Registrable Securities in any registration except to the extent that the inclusion of such Registrable Securities will not reduce the number of securities of the parties to the Existing Registration Rights Agreement that are included; or (b) initiate a demand for registration of any Registrable Securities held by such Holder.

2.11 “Market Stand-off Agreement. Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final Prospectus relating to the registration by the Company for its own behalf of shares or units (as applicable) of its Common Stock or any other equity securities under the Securities Act on a Registration Statement on Form S-1, or Form S-3, and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days in the case of the IPO), (a) lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares or units (as applicable) of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock held immediately before the effective date of the Registration Statement for such offering or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this Subsection 2.11 shall apply only to the IPO, shall not apply to the sale of any shares or units (as applicable) to an underwriter pursuant to an underwriting agreement, or the transfer of any shares or units (as applicable) to any trust for the direct or indirect benefit of the Holder or the immediate family of the Holder, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further, that any such transfer shall not involve a disposition for value, and shall be applicable to the Holders only if all officers and directors are subject to the same restrictions and the Company uses commercially reasonable efforts to obtain a similar agreement from all Holders individually owning more than one percent (1%) of the Company’s outstanding Common Stock (after giving effect to conversion into Common Stock of any other outstanding securities of the Company). The underwriters in connection with such registration are intended third-party beneficiaries of this Subsection 2.11 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with such registration that are consistent with this Subsection 2.11 or that are necessary to give further effect thereto. Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply pro rata to all Holders subject to such agreements, based on the number of shares or units (as applicable) subject to such agreements.

2.12 Restrictions on Transfer.

(a) Each certificate, instrument, or book entry representing (i) the Common Stock, (ii) the Registrable Securities, and (iii) any other securities issued in respect of the securities referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Subsection 2.12 (b)) be notated with a legend substantially in the following form:

THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES OR UNITS (AS APPLICABLE) MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE

 

12


REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.

The Holders consent to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Subsection 2.12.

(b) The holder of such Restricted Securities, by acceptance of ownership thereof, agrees to comply in all respects with the provisions of this Section 2. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a Registration Statement under the Securities Act covering the proposed transaction, the Holder thereof shall give notice to the Company of such Holder’s intention to effect such sale, pledge, or transfer. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at such Holder’s expense by either (i) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration under the Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto; or (iii) any other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities Act, whereupon the Holder of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by the Holder to the Company. The Company will not require such a legal opinion or “no action” letter (x) in any transaction in compliance with SEC Rule 144; or (y) in any transaction in which such Holder distributes Restricted Securities to an Affiliate of such Holder for no consideration; provided that each transferee agrees in writing to be subject to the terms of this Subsection 2.12. Each certificate, instrument, or book entry representing the Restricted Securities transferred as above provided shall be notated with, except if such transfer is made pursuant to SEC Rule 144, the appropriate restrictive legend set forth in Subsection 2.12(a) except that such certificate instrument, or book entry shall not be notated with such restrictive legend if, in the opinion of counsel for such Holder and the Company, such legend is not required in order to establish compliance with any provisions of the Securities Act.

2.13 Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Subsection 2.2 shall terminate at such time as SEC Rule 144(b)(1) under the Securities Act (or any successor provision) is available for the sale of all of such Holder’s shares without any need to comply with the public information requirements of SEC Rule 144(b)(1) (or any successor provision) or any such shares are sold pursuant to SEC Rule 144.

3. Miscellaneous.

3.1 Successors and Assigns. The rights under this Agreement may be assigned (but only with all related obligations) by a Holder to a transferee of Registrable Securities that (a) is an Affiliate of a Holder; (b) is a Holder’s Immediate Family Member or trust for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members; or (c) after such transfer, holds at least one percent (1%) of the Company’s then outstanding Registrable Securities;

 

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provided, however, that (i) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and (ii) such transferee executes and delivers to the Company a Joinder Agreement or a counterpart signature page to this Agreement, pursuant to which such Person will thereupon become a party to, and be bound by and obligated to comply with, the terms and provisions of this Agreement. For the purposes of determining the number of shares or units (as applicable) of Registrable Securities held by a transferee, the holdings of a transferee (1) that is an Affiliate, member or stockholder of a Holder; (2) who is a Holder’s Immediate Family Member; or (3) that is a trust for the benefit of an individual Holder or such Holder’s Immediate Family Member shall be aggregated together and with those of the transferring Holder; provided further, that all transferees who would not qualify individually for assignment of rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices, or taking any action under this Agreement. The terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

3.2 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

3.3 Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

3.4 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (a) personal delivery to the party to be notified; (b) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next Business Day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) Business Day after the Business Day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on Schedule A hereto, or to the principal office of the Company and to the attention of the Chief Executive Officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Subsection 3.4.

3.5 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company and the Holders of seventy-five percent (75%) of the Registrable Securities then outstanding; provided that the Company may in its sole discretion enter into any number of Joinder Agreements with shareholders of the Company and, from time to time, update and distribute Schedule A to reflect any such updates; and provided further, that the Company may in its sole discretion waive compliance with Subsection 2.12(b) (and the Company’s failure to object promptly in writing after notification of a proposed assignment allegedly in violation of Subsection 2.12(b) shall be deemed to be a waiver); and provided further, that any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. The Company shall give prompt notice of any amendment or termination hereof or waiver

 

14


hereunder to any party hereto that did not consent in writing to such amendment, termination, or waiver. Any amendment, termination, or waiver effected in accordance with this Subsection 3.5 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

3.6 Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

3.7 Entire Agreement. This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof (other than any lock-up or similar agreement between any Holder and any underwriter), and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled. This Agreement hereby amends, restates and supersedes the Original Piggy-back Registration Rights Agreement in all respects.

3.8 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to the conflicts of law principles of such State. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the courts of the State of Delaware sitting in New Castle County and to the jurisdiction of the United States District Court sitting in Wilmington, Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the courts of the State of Delaware sitting in New Castle County or the United States District Court sitting in Wilmington, Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

3.9 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

3.10 Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting

 

15


party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

3.11 Other Interpretive Matters. For purposes of this Agreement, (a) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period is excluded, and if the last day of such period is a non-Business Day, the period in question ends on the next succeeding Business Day, (b) unless the context otherwise requires, all references in this Agreement to any “Section,” “Subsection” or “Exhibit” are to the corresponding Section, Subsection or Exhibit of this Agreement, (c) the word “including,” or any variation thereof, means “including, without limitation” and does not limit any general statement that it follows to the specific or similar items or matters immediately following it, and (d) all references to dollar amounts are expressed in United States Dollars. As used herein, the singular shall include the plural, the plural shall include the singular and any use of the male or female gender shall include the other gender, all wherever the same shall be applicable and when the context shall admit or require.

3.12 No Recourse. Notwithstanding anything to the contrary that may be expressed or implied in this Agreement, and notwithstanding the fact that the Holders or their Affiliates or any of their or their successors or permitted assignees may be a partnership or a limited liability company, the Company, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no Person other than the Holders and their respective successors and permitted assignees shall have any obligation hereunder, and that it has no rights of recovery against, and no recourse hereunder against, any former, current or future director, officer, agent, advisor, attorney, representative, Affiliate, manager or employee of any Holder (or any of its successors or assignees), against any former, current or future general or limited partner, manager, member or stockholder of any Holder or any Affiliate thereof or against any former, current or future director, officer, agent, advisor, attorney, representative, employee, Affiliate, assignee, general or limited partner, stockholder, manager or member of any of the foregoing, whether by or through attempted piercing of the corporate veil, by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law.

3.13 Specific Performance. The rights of each party to consummate the transactions contemplated hereby are agreed to be unique, and recognizing that the remedy at law for any breach or threatened breach by a party hereto of the agreements and conditions set forth herein would be inadequate, and further recognizing that any such breach or threatened breach would cause immediate, irreparable and permanent damage to the parties, the extent of which would be impossible or difficult to ascertain, the parties hereto agree that in the event of any such breach or threatened breach, and in addition to any and all remedies at law or otherwise provided herein, any party hereto may specifically enforce the terms of this Agreement and may obtain temporary and/or permanent injunctive relief (including a mandatory injunction) without the necessity of proving actual damage or the lack of an adequate remedy at law and, to the extent permissible under applicable rules, provision and statutes, a temporary injunction may be granted immediately upon the commencement of any suit hereunder regardless of whether the breaching party or parties have actually received notice thereof. Such remedy shall be cumulative and not exclusive, and shall be in addition to any other remedy or remedies available to the parties.

3.14 [Reserved].

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first written above.

 

COMPANY:
SUNNOVA ENERGY INTERNATIONAL INC.
By:    
Name:   William J. Berger
Title:   Chief Executive Officer

[Signature Page to Amended and Restated Piggy-Back Registration Rights Agreement]


HOLDERS:

 

By:                                                                                   

    THE PHOENIX INSURANCE COMPANY LTD.

Name:                                                                              

   

Title:                                                                                

   

 

[Signature Page to Amended and Restated Piggy-Back Registration Rights Agreement]


SCHEDULE A

Holders

 

Name

  

Address

 

 

Schedule A


EXHIBIT A

FORM OF JOINDER AGREEMENT

This JOINDER AGREEMENT (this “Agreement”), dated as of __________________________________, 20____, is entered into by and between Sunnova Energy International Inc., a Delaware corporation (the “Company”), and _____________________ (“Joining Party”).

All defined terms not otherwise defined herein have the meanings ascribed to such terms in the Piggy-Back Registration Rights Agreement (as hereinafter defined).

RECITALS

WHEREAS, the Company and certain other shareholders (the “Original Investors”) are parties to that certain Amended and Restated Piggy-Back Registration Rights Agreement dated as of [•], 2019, pursuant to which the Company granted the Original Investors certain registration rights (as amended, supplemented and/or restated, the “Piggy-Back Registration Rights Agreement”);

[WHEREAS, in accordance with the terms of the Piggy-Back Registration Rights Agreement, upon the transfer of any Registrable Securities, the transferee must join the Piggy-Back Registration Rights Agreement as a Holder thereunder in order to retain the registration rights associated with such Registrable Securities;]

WHEREAS, [Joining Party has purchased // _______________has transferred to Joining Party] Registrable Securities pursuant to [__________________]; and

WHEREAS, Joining Party desires to be bound by and enjoy the benefits of the Piggy-Back Registration Rights Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1. Joining Party acknowledges receipt of a copy of the Piggy-Back Registration Rights Agreement and, after review and examination thereof, agrees to be bound by the restrictions and agreements contained therein in the capacity of a “Holder”.

2. The Company hereby (a) accepts Joining Party’s agreement to be bound by the Piggy-Back Registration Rights Agreement and (b) agrees that Joining Party is hereby a party to the Piggy-Back Registration Rights Agreement and as such shall have all rights provided to Holders under the Piggy-Back Registration Rights Agreement.

 

Exhibit A


3. All notices to the Joining Party should be delivered to the following address:

[Name]

[Address]

Attention: [______________________]

Tel: [_____________]

Fax: [_____________]

E-mail: [___________]

4. The provisions of Section 3 of the Piggy-Back Registration Rights Agreement are hereby incorporated herein as if set forth herein.

*             *             *

 

Exhibit A


IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be duly executed by their respective authorized officers as of the date first set forth above.

 

SUNNOVA ENERGY INTERNATIONAL INC.
By:    
Name:    
Title:    

 

[JOINING PARTY]
By:    
Name:    
Title:    

 

Exhibit A

EX-4.11 7 d709190dex411.htm EX-4.11 EX-4.11

Exhibit 4.11

Execution Version

FIFTH SUPPLEMENTAL INDENTURE

This Fifth Supplemental Indenture (this “Supplemental Indenture”), dated as of June 26, 2019 and effective as of the Effective Date, is by and among Sunnova Energy Corporation (the “Issuer”) and Wilmington Trust, National Association, as trustee (the “Trustee”) relating to those certain 9.50% Senior Secured Convertible Notes due 2021 (each a “Note” and collectively, the “Notes”) of the Issuer, issued pursuant to the Indenture, dated as of April 24, 2017 (as amended by that certain First Supplemental Indenture, dated as of November 21, 2017, that certain Second Supplemental Indenture, dated May 31, 2018, that certain Third Supplemental Indenture, dated as of January 18, 2019, and that certain Fourth Supplemental Indenture dated as of April 5, 2019 and as otherwise amended, amended and restated, supplemented or otherwise modified from time to time, the “Indenture”), by and between the Issuer, the Trustee and Wilmington Trust, National Association, as collateral trustee.

INTRODUCTION

WHEREAS, the Board of Directors of the Issuer has approved, contingent upon the consent of the requisite parties, including the Noteholders, the Issuer’s incurrence of $15,000,000 in new subordinated indebtedness (together with any PIK payments in respect thereof, the “New Subordinated Indebtedness”) pursuant to the promissory note, which is convertible into “Series C Convertible Preferred Stock” of the Issuer in accordance with its terms;

WHEREAS, the Issuer desires to supplement the Indenture to permit the incurrence and performance of the New Subordinated Indebtedness;

WHEREAS, Section 9.02 of the Indenture provides that (i) Sections 4.07 and 11.01 of the Indenture, Section 9 of the Note and any definitions related thereto may be amended with the consent of the Issuer and the holders of at least a majority in principal amount of the Notes then outstanding and (ii) Sections 4.03 and 4.04 of the Indenture and any definitions related thereto may be amended with the consent of the Issuer and the holders of at least 66 2/3% in principal amount of the Notes then outstanding (such consents, the “Requisite Consents”);

WHEREAS, the Trustee has received the documents required to be delivered to it pursuant to the Indenture, including evidence of the Requisite Consents from the holders as evidenced by the consent of Cede & Co., nominee for The Depository Trust Company, to the execution and delivery of this Supplemental Indenture;

WHEREAS, Section 9.03 of the Indenture provides that an amendment to the Indenture and the Notes shall become effective upon the Requisite Consents, the receipt by the Trustee of the Opinion of Counsel and Officers’ Certificate required under Sections 9.05 and 14.04 of the Indenture and the execution by the Trustee of the Supplemental Indenture; and

WHEREAS, all actions and documents required for the execution and delivery by the Trustee of this Supplemental Indenture have been taken and/or provided and this Supplemental Indenture is authorized pursuant to the Indenture.

NOW, THEREFORE, the Issuer and the Trustee hereby agree as follows:

Section 1. Defined Terms; Other Definitional Provisions. As used in this Supplemental Indenture, each of the terms defined in the opening paragraph and the Recitals above shall have the meanings assigned to such terms therein. Each term defined in the Indenture and used herein without definition shall have the meaning assigned to such term in the Indenture, unless expressly provided to the


contrary. Article, Section, Schedule, and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this Supplemental Indenture, unless otherwise specified. The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Supplemental Indenture shall refer to this Supplemental Indenture as a whole and not to any particular provision of this Supplemental Indenture. The term “including” means “including, without limitation”. Paragraph headings have been inserted in this Supplemental Indenture as a matter of convenience for reference only and it is agreed that such paragraph headings are not a part of this Supplemental Indenture and shall not be used in the interpretation of any provision of this Supplemental Indenture.

Section 2. Amendment. Subject to the terms and conditions of this Supplemental Indenture, pursuant to Section 9.02 of the Indenture and in reliance on the Requisite Consents, upon the effectiveness of this Supplemental Indenture:

(a) Section 1.01 of the Indenture shall be amended by adding the following additional definition:

“2019 Subordinated Indebtedness” means that certain subordinated convertible promissory note in an amount not exceeding $15,000,000 (plus PIK interest amounts), effective as of June 28, 2019.

(b) Section 4.03(b)(x) of the Indenture shall be amended and restated as follows:

(x) the ECP Subordinated Indebtedness as in effect on January 18, 2019 and the 2019 Subordinated Indebtedness as in effect on June 28, 2019. For the avoidance of doubt, no refinancings, amendments, replacements or substitutions of the ECP Subordinated Indebtedness or the 2019 Subordinated Indebtedness shall be considered Permitted Indebtedness under this clause (x)”.

(c) Section 4.04(a) of the Indenture shall be amended by inserting “, and, in the case of clause (v) below, shall not permit any Subsidiary of the Issuer to,” in the first sentence, immediately after “The Issuer shall not”, by deleting the word “or” from the end of clause (iii) and replacing clause (iv) with the following:

(iv) make any Investment other than a Permitted Investment; or

(v) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, in cash the ECP Subordinated Indebtedness or 2019 Subordinated Indebtedness.

(d) Section 4.04(b)(ii) of the Indenture shall be amended and restated as follows:

(ii) the payment, defeasance, repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness (other than the ECP Subordinated Indebtedness or 2019 Subordinated Indebtedness) pursuant to provisions similar to those described in Section 4.06 and Section 4.08; provided, that, all Notes tendered by holders of the Notes in connection with a Change of Control Offer or required to be redeemed or purchased pursuant to Section 4.06(b) have been repurchased, redeemed or acquired for value;

 

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(e) Section 4.04(b)(viii) of the Indenture shall be amended and restated as follows:

(viii) so long as no Default or Event of Default has occurred and is continuing or would occur as a consequence thereof, other Restricted Payments (other than the Restricted Payments described in Section 4.04(a)(v)) in an aggregate amount not to exceed $3.0 million since the Original Notes Issuance Date; and

(f) Section 4.04(c) of the Indenture shall be amended and restated as follows:

(c) Subject to the last paragraph of Section 4.07, this covenant shall not restrict the ability of any Subsidiary of the Issuer to make any of the payments described in Section 4.04(a) (other than the Restricted Payments described in Section 4.04(a)(v))

(g) Section 4.07(b) of the Indenture shall be amended by deleting the word “and” from the end of clause (ix) and replacing clause (x) with the following:

(x) licenses of, or other grants of rights to use, intellectual property granted by the Issuer or any Subsidiary in the ordinary course of business or consistent with industry practice; and

(xi) the 2019 Subordinated Indebtedness.

(h) Section 11.01(c) of the Indenture shall be amended and restated as follows:

(c) Any Notes not converted pursuant to Section 11.01(a) shall be subject to mandatory redemption pursuant to Section 3.09 of this Indenture. Notwithstanding the foregoing, the Issuer shall not be obligated to redeem more than 50% of the outstanding principal amount of the Notes pursuant to this Section 11.01(c) if the IPO results in gross proceeds to the IPO Issuer of less than $225.0 million; provided, however, that the Issuer shall not be relieved of its obligation to redeem all of the outstanding Notes in the event that the ECP Subordinated Indebtedness and the 2019 Subordinated Indebtedness are not fully converted into Equity Interests of the Issuer prior to or substantially concurrently with the IPO; provided, further, however, that the Issuer may (but shall not be obligated to) redeem more than 50% of such Notes pursuant to Section 3.09 if it so elects.

(i) The first paragraph of Section 9 of the Form of Note attached as Exhibit A to the Indenture shall be amended and restated as follows:

Upon the closing of an IPO, the Issuer shall be required to redeem any Notes for which no Conversion Notice (as defined below) was delivered on or prior to the Conversion Deadline (as defined below) in accordance with the provisions of Article XI of the Indenture, at a redemption price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, together with an amount of cash equal to the cash value of the IPO Redemption Premium (calculated using the price to the public in the IPO) and all accrued and unpaid PIK Interest, to, but excluding, the mandatory redemption date, and will be payable in cash, to the date fixed for the mandatory redemption, in accordance with the procedures set forth in Section 3.09 of the Indenture. Notwithstanding the foregoing, the Issuer shall not be obligated to redeem more than 50% of the outstanding principal amount of the Notes pursuant to Section 11.01(c) of the Indenture if the IPO results in gross proceeds to the IPO Issuer of less than $225.0

 

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million; provided, however, that the Issuer shall not be relieved of its obligation to redeem all of the outstanding Notes in the event that the ECP Subordinated Indebtedness and the 2019 Subordinated Indebtedness are not fully converted into Equity Interests of the Issuer prior to or substantially concurrently with the IPO; provided, further, however, that the Issuer may (but shall not be obligated to) redeem more than 50% of such Notes pursuant to Section 3.09 of the Indenture if it so elects.

Section 3. Representations and Warranties.

(a) The Issuer hereby represents and warrants that: (i) the execution, delivery and performance of this Supplemental Indenture are within the corporate power and authority of the Issuer and have been duly authorized by appropriate corporate action and proceedings; (ii) this Supplemental Indenture constitutes the legal, valid, and binding obligation of the Issuer enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity; (iii) there are no governmental or other third party consents, licenses and approvals required in connection with the execution, delivery, performance, validity and enforceability of this Supplemental Indenture; and (iv) the security interests under the Security Documents are valid and subsisting and secure the Issuer’s obligations under the Note Documents.

Section 4. Conditions to Effectiveness. This Supplemental Indenture shall become effective and enforceable against the parties hereto upon the satisfaction of the following conditions precedent (such date, the “Effective Date”):

(a) the Trustee shall have received this Supplemental Indenture duly executed by the Issuer and the Trustee;

(b) the Issuer shall have paid on or prior to the Effective Date all costs and expenses which are payable pursuant to Section 7.07 of the Indenture; and

(c) the Trustee shall have received the documents required to be delivered to it pursuant to the Indenture, including evidence of the consent of Cede & Co., nominee for The Depository Trust Company on behalf of the Holders, constituting the Requisite Consents, to the execution and delivery of this Supplemental Indenture, and such Consents shall not have been properly revoked prior to the Expiration Time (as defined in the Solicitation of Consents Relating to the Indenture Governing the Notes, dated June 20, 2019).

The Issuer shall promptly notify the Trustee in writing of the Effective Date.

Section 5. Acknowledgments and Agreements.

(a) The Issuer does hereby adopt, ratify, and confirm the Indenture and the other Note Documents and acknowledges and agrees that the Indenture and the other Note Documents are and remain in full force and effect, and the Issuer acknowledges and agrees that its respective liabilities and obligations under the Indenture and the other Note Documents are not impaired in any respect by this Supplemental Indenture.

(b) The Issuer hereby also agrees and acknowledges that no course of dealing and no delay in exercising any right, power, or remedy conferred to the Trustee in the Indenture or in any other Note Documents or now or hereafter existing at law, in equity, by statute, or otherwise shall operate as a waiver of or otherwise prejudice any such right, power, or remedy.

 

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(c) For the avoidance of doubt, the Issuer hereby also agrees and acknowledges that Section 2 above shall not operate as a waiver of or otherwise prejudice any of the rights and remedies of the Trustee otherwise other than as expressly provided in Section 2. The Trustee hereby expressly reserves all of its rights, remedies, and claims under the Note Documents. Nothing in this Supplemental Indenture shall constitute a waiver or relinquishment of (i) any Default or Event of Default under any of the Note Documents, (ii) any of the agreements, terms or conditions contained in any of the Note Documents, (iii) any rights or remedies of the Trustee with respect to the Note or (iv) the rights of the Trustee to collect the full amounts owing under the Note Documents as and when such amounts are due and payable under the terms of the Note Documents.

(d) This Supplemental Indenture is a Note Document for the purposes of the provisions of the other Note Documents. Without limiting the foregoing, any breach of representations, warranties, and covenants under this Supplemental Indenture shall be a Default or Event of Default, as applicable, under the Indenture.

(e) The Issuer shall indemnify and hold harmless the Trustee from and against any and all damages, losses, costs, and expenses (including, without limitation, legal fees and expenses) relating to this Supplemental Indenture in accordance with Section 7.07 of the Indenture.

(f) The Issuer covenants and agrees to pay the Trustee’s fees and expenses in connection with the execution and delivery of this Supplemental Indenture.

Section 6. Reaffirmation of Liens. The Issuer (a) is party to the Security Documents securing and supporting the Obligations under the Note Documents, (b) represents and warrants that it has no defenses to the enforcement of the Security Documents and that according to their terms the Security Documents will continue in full force and effect to secure the Obligations under the Note Documents, as the same may be amended, supplemented, or otherwise modified, and (c) acknowledges, represents, and warrants that the liens and security interests created by the Security Documents are valid and subsisting and create an acceptable security interest in the collateral to secure the Obligations under the Note Documents, as the same may be amended, supplemented, or otherwise modified.

Section 7. Counterparts. This Supplemental Indenture may be signed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Transmission by facsimile or other electronic transmission of an executed counterpart of this Supplemental Indenture shall be deemed to constitute due and sufficient delivery of such counterpart.

Section 8. Successors and Assigns. This Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Purchase Agreement and Indenture.

Section 9. Invalidity. In the event that any one or more of the provisions contained in this Supplemental Indenture shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Supplemental Indenture.

 

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Section 10. Governing Law. This Supplemental Indenture shall be governed by and construed in accordance with the internal procedural and substantive laws of the State of New York, without giving effect to the choice of law provisions of such state that would cause the application of the laws of any other jurisdiction.

Section 11. Record Date. The Issuer informs the Trustee that the voting record date for purposes of this Supplemental Indenture shall be June 19, 2019 (the “Record Date”).

Section 12. Concerning the Trustee. Wilmington Trust, National Association is entering into this Supplemental Indenture solely in its capacity as Trustee under the Indenture, pursuant to the Requisite Consents and in reliance on the Officers’ Certificate and Opinion of Counsel delivered to the Trustee in connection herewith. The recitals contained herein shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same.

Section 13. Entire Agreement. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE AND THE OTHER NOTE DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

[The remainder of this page has been left blank intentionally.]

 

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ISSUER:
SUNNOVA ENERGY CORPORATION
By:    /s/ Robert L. Lane
Name:   Robert L. Lane
Title:   Executive Vice President and Chief Financial Officer

 

[Signature Page to Supplemental Indenture]


TRUSTEE:
WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustee
By:    /s/ Shawn P. Goffinet
Name:   Shawn P. Goffinet
Title:   Assistant Vice President

 

[Signature Page to Supplemental Indenture]

EX-5.1 8 d709190dex51.htm EX-5.1 EX-5.1

Exhibit 5.1

 

LOGO     

910 LOUISIANA

HOUSTON, TEXAS

77002-4995

 

TEL +1 713.229.1234

FAX +1 713.229.1522

BAKERBOTTS.COM

  

AUSTIN

BEIJING

BRUSSELS

DALLAS

DUBAI

HONG KONG

HOUSTON

  

LONDON

MOSCOW

NEW YORK

PALO ALTO

RIYADH

SAN FRANCISCO

WASHINGTON

                    , 2019

Sunnova Energy International Inc.

20 East Greenway Plaza

Suite 475

Houston, Texas 77046

Ladies and Gentlemen:

We have acted as counsel for Sunnova Energy International Inc., a Delaware Corporation (“Sunnova”), in connection with the proposed offer and sale (the “Offering”) by Sunnova of up to          shares of Common Stock, par value $0.0001 per share (the “Common Stock”), including up to          shares of Common Stock issuable upon exercise by the underwriters of an option to purchase additional shares of Common Stock, pursuant to a prospectus (the “Prospectus”) forming a part of a registration statement on Form S-1 (File No. 333-232393)(such Registration Statement, as amended at the effective date thereof, being referred to herein as the “Registration Statement”), originally filed with the Securities and Exchange Commission on June 27, 2019 under the Securities Act of 1933, as amended (the “Securities Act”), as described in the Registration Statement. The term “Common Stock” shall include any additional shares of common stock of the Company registered pursuant to Rule 462(b) under the Securities Act in connection with the offering contemplated by the Registration Statement.

In connection with this opinion and as a basis for the opinions herein after expressed, we have examined (i) the form of underwriting agreement filed as an exhibit to the Registration Statement, (ii) the form of Second Amended and Restated Certificate of Incorporation of Sunnova filed as an exhibit to the Registration Statement, (iii) the form of Second Amended and Restated Bylaws of Sunnova filed as an exhibit to the Registration Statement, (iv) originals, or copies certified or otherwise identified, of the corporate records of Sunnova, (v) originals, or copies certified or otherwise identified, of certificates of public officials and of representatives of Sunnova, (vi) the Registration Statement and the Prospectus and (vii) statutes and other instruments and documents as we have deemed necessary or advisable for purposes of this opinion.

In connection with this opinion, we have assumed that (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective; (ii) the Second Amended and Restated Certificate of Incorporation and the Second Amended and Restated Bylaws of Sunnova, in the forms filed as exhibits to the Registration Statement, will have become effective; (iii) all Common Stock will be issued and sold in the manner stated in the Registration Statement and the Prospectus; (iv) the Corporate Reorganization (as described in the Registration Statement and the Prospectus) will have been consummated in the manner described in the Registration Statement and the Prospectus; (v) a definitive


LOGO

 

Sunnova Energy International, Inc.   -2-                               , 2019

 

underwriting agreement, in the form filed as an exhibit to the Registration Statement, with respect to the sale of shares of Common Stock offered in the Offering will have been duly authorized and validly executed and delivered by Sunnova and the other parties thereto; (vi) the certificates, if any, for the Common Stock will conform to the specimens thereof examined by us and will have been duly countersigned by a transfer agent and duly registered by a registrar of the Common Stock, or, if uncertificated, valid book-entry notations will have been made in the stock register of Sunnova in accordance with the provisions of the governing documents of Sunnova; and (vii) each document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original and all signatures on each such document are genuine.

Based upon and subject to the foregoing, we are of the opinion that when such Common Stock has been issued and delivered in accordance with the terms of a definitive underwriting agreement approved by the Board of Directors of Sunnova upon payment of the consideration therefor provided for therein, such Common Stock will be duly authorized, validly issued, fully paid and nonassessable.

The opinion set forth above is limited in all respects to matters of the General Corporation Law of the State of Delaware, and applicable reported judicial decisions, rules and regulations interpreting and implementing those laws as in effect on the date hereof. We express no opinion as to the effect of the laws of any other jurisdiction.

We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to the Registration Statement. We also consent to the reference to us under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

 

EX-10.1 9 d709190dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

Execution Copy

NOTE PURCHASE AGREEMENT

dated March 28, 2019,

by and among

SUNNOVA RAYS I ISSUER, LLC,

as Issuer,

SUNNOVA RAYS I DEPOSITOR, LLC,

as Depositor,

SUNNOVA RAYS I MANAGEMENT, LLC,

as Facility Administrator, Manager and Servicer,

and

THE PURCHASERS NAMED HEREIN

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


THE PURCHASERS NAMED ON EXHIBIT A HERETO WITH RESPECT TO EACH CLASS OF NOTES (the “Initial Purchasers” and, together with any Additional Purchasers, the “Purchasers”)

March 28, 2019

Ladies and Gentlemen:

Sunnova RAYS I Issuer, LLC, a Delaware limited liability company (the “Issuer”), has duly authorized the issuance and sale of asset-backed notes (collectively, the “Notes”) to be authorized, issued and authenticated pursuant to an Indenture, dated as of the date hereof (together with any Indenture Supplement, the “Indenture”), by and among the Issuer and Wilmington Trust, National Association, as indenture trustee (in such capacity, the “Indenture Trustee”). Payments and transfers of the Notes will be subject to the terms and conditions of the Indenture and the Notes. Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Indenture, a copy of which has been provided to the Purchasers. Any reference in this Note Purchase Agreement, as supplemented by any Note Purchase Agreement Supplement substantially in the form of Exhibit C hereto (each a “NPA Supplement” and, collectively, this “Agreement”) to “herein”, “hereto”, “hereunder” or terms of similar import shall refer collectively to this Agreement, each NPA Supplement, and all schedules, exhibits and other attachments to this Agreement and each NPA Supplement. The Purchasers have agreed, severally but not jointly, to purchase the applicable Class of Notes from time to time as specified herein. The Notes purchased by the Purchasers hereunder will be represented by certificated Notes in definitive, fully registered form.

For good and valuable consideration, the Issuer hereby agrees with each Purchaser as follows:

Section 1. Purchase, Sale, Payment and Delivery of the Notes.

(a) At any time and from time to time, but in no event more than once per month and no more than two times in any calendar quarter, prior to the first anniversary of the date hereof, the Issuer may, at its option, offer Notes of any Class and Series for sale to the Purchasers under this Agreement in one or more issuances by delivering a draft NPA Supplement to the Purchasers no less than seven (7) Business Days prior to the Closing Date set forth in such NPA Supplement; provided that (i) the principal amount of any series of Class A Notes issued hereunder shall not be less than $25 million (or, if less, the maximum remaining amount of Notes available to be issued pursuant to clause (ii) of this paragraph (a)), (ii) the aggregate principal amount of Notes of all Series purchased hereunder shall not exceed $403,000,000 and (iii) either (A) such Notes will, for U.S. federal income tax purposes, have the same issue price and issue date as do any Notes that are Outstanding at that time, or (B) such Notes will have a CUSIP or private placement number different from that of any Notes that are Outstanding at that time (or other similar tracking condition).

(b) On the Closing Date set forth in such NPA Supplement, on the terms and subject to satisfaction of the conditions set forth in this Agreement (including Section 4), the Indenture and the other Transaction Documents, the Issuer shall issue and sell, and each Purchaser shall severally purchase its Pro Rata Share of, the Notes of the applicable Class and Series at the

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

1


time and place specified in the related NPA Supplement, for the Class A Notes, at the issuance price equal to 100% of the principal value of such Class A Notes, and for the Class B Notes, at the issuance price set forth in the related NPA Supplement; provided that, the aggregate principal amount of all Class A Notes or Class B Notes, as applicable, purchased by each Purchaser shall not exceed the amount set forth opposite such Purchaser’s name on Exhibit A hereto under “Maximum Class A Notes to be Purchased” or “Maximum Class B Notes to be Purchased”, as applicable. On any date of determination, a Purchaser’s “Pro Rata Share” shall, with respect to any Class of Notes, equal a percentage determined by dividing the amount set forth opposite such Purchaser’s name on Exhibit A hereto under “Maximum Class A Notes to be Purchased” or “Maximum Class B Notes to be Purchased”, as applicable, by the sum of the amounts set forth opposite the names of all Purchasers under Maximum Class A Notes to be Purchased” or “Maximum Class B Notes to be Purchased”, as applicable.

Section 2. Representations, Warranties and Covenants of the Sunnova Parties. Each of the Issuer, the Depositor and Sunnova RAYS I Management, LLC (collectively, the “Sunnova Parties”) represents, warrants, covenants and agrees with the Purchasers that, on the date hereof and as of the applicable Closing Date:

(a) Such Person is a limited liability company validly existing and in good standing under the laws of the jurisdiction of its organization, with limited liability company power and authority to execute, deliver and perform its obligations under each of the Transaction Documents to which it is a party. Such Person is duly qualified to do business as a foreign business entity and is in good standing in all jurisdictions in which the ownership or lease of property or the conduct of its business as currently conducted, or as contemplated under the Transaction Documents to which it is a party, requires such qualifications, except those jurisdictions in which failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.

(b) The execution, delivery and the performance by such Person of its obligations under the Transaction Documents to which it is a party have been duly authorized by all necessary limited liability company action on the part of such Person, and the related authorizing resolutions and such authorizations and approvals are in full force and effect and have not been amended, modified or rescinded except as may have been agreed in writing by the Purchasers. The Notes have been duly authorized by the Issuer and, when the Notes are authenticated, delivered and paid for pursuant to this Agreement, such Notes will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuer entitled to the benefits provided by the Indenture, and enforceable in accordance with terms and conditions therein, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general, and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity). When executed and delivered by each Sunnova Party, each of the Transaction Documents to which it is a party will constitute the legal, valid and binding obligation of such Person, enforceable in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general, and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity).

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

2


(c) No form of general solicitation or general advertising was used by any such Person in connection with the offer and sale of any Notes. No potential investors who were not institutional investors were solicited or otherwise approached by any Sunnova Party or any representative of any of them for the purpose of offering any Notes for sale. No such Person has offered or sold, or will offer or sell, any Notes in any manner that would render the issuance and sale of such Notes a violation of the Securities Act or state blue sky laws, or require registration pursuant thereto, nor has any such Person authorized, nor will any such Person authorize, any other Person to act in such manner.

(d) Assuming that the representations, warranties and covenants of each Purchaser contained in this Agreement are true and correct in all material respects and have been and will be complied with in all material respects and that the Notes are offered and sold in accordance with the applicable Transaction Documents, no registration of any Notes under the Securities Act is required for the offer, sale and delivery of the Notes at the time and in the manner contemplated by this Agreement and the Indenture.

(e) All of the representations and warranties made by such Person in the Transaction Documents to which it is a party are true and correct in all material respects as of each Closing Date, other than representations and warranties with respect to matters set forth on Schedule I of the Sale and Contribution Agreement that refer to the related Cut-Off Date or other matters that refer to a specific date, which shall be true and correct in all material respects on and as of such related Cut-Off Date or other specified date.

(f) None of the Sunnova Parties is in breach of or in default under, (i) any applicable constitutional provision, law or rule or regulation, (ii) its organizational documents, (iii) any applicable judgment, order or decree or (iv) any trust agreement, loan agreement, indenture, bond, note, resolution, ordinance, agreement or other instrument to which such Person is a party or to which such Person or any of its properties or other assets is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument, except, in each case, as would not reasonably be expected to have a Material Adverse Effect. The authorization, execution and delivery by each Sunnova Party of the Transaction Documents to which it is a party and performance by such Person of the obligations on its part to be performed under such Transaction Documents does not and will not (i) conflict with or constitute a material breach of or material default under (A) any applicable constitutional provision, law or rule or regulation, (B) such Person’s organizational documents, (C) any applicable judgment or decree or (D) any license, permit, trust agreement, loan agreement, indenture, bond, note agreement or other instrument to which such Person (or any of its officers in their respective capacities as such) is subject, or by which it or any of its properties is bound, or (ii) result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of its assets or properties or under the terms of any such law, regulation or instrument, except for Permitted Liens.

(g) All written information contained in the Transaction Documents and any other documents, reports, financial models or other written information provided to the Purchasers, in each case, prepared by such Person or was prepared by a third party on behalf of such Person in connection with the transactions contemplated by the Transaction Documents (collectively, the

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

3


Information”) fairly describe as of its respective date, in all material respects, the Transaction, the Trust Estate and the general nature of the business and principal assets of the Sunnova Parties (including the Financing Fund Documents but excluding any term sheet with respect to the Transaction Documents which are superseded by the Transaction Documents). The Information, taken as a whole, does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(h) There is no fact known to such Person that materially adversely affects or, so far as such Person can now reasonably foresee, will materially adversely affect the ability of such Person, any Managing Member or any Financing Fund to perform its respective obligations under any Transaction Document to which it is a party.

(i) Annex B to each NPA Supplement sets forth a complete and correct list of all Managing Member Interests contributed to the Issuer on the date thereof and the related Financing Funds, showing, as to each such Person, as of the date thereof, the name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by the Issuer or the related Managing Member, as applicable. There are no outstanding contracts, options, warrants, instruments, documents or agreements binding upon the Depositor or Issuer granting to any Person or group of Persons any right to purchase or acquire any Managing Member Membership Interests or any Financing Fund Interests, other than, with respect to any Financing Fund Interests, the related Financing Fund Documents made available to the Purchasers on or prior to the date the related NPA Supplement was delivered.

(j) All of the outstanding Managing Member Membership Interests of the Managing Members listed on Annex B to the NPA Supplements have been contributed and/or sold to the Issuer, free and clear of any Lien other than Permitted Liens. The related Managing Member owns all of the issued and outstanding Financing Fund Interests in each Financing Fund.

(k) All federal, state and local tax returns and reports of each Sunnova Entity required to be filed have been timely filed (or each such Person has timely filed for an extension and the applicable extension has not expired), and all Taxes, assessments, and other governmental charges (including any payments in lieu of Taxes) upon such Persons and upon its properties, assets, income, profits, businesses and franchises which are due and payable have been timely paid except (i) to the extent the same are being contested in accordance with Section 3.01(d) of the Indenture or (ii) to the extent the effect of the failure to file such tax return and reports or to pay such Taxes, assessments, and other governmental charges would not reasonably be expected to result in a Material Adverse Effect. None of the Issuer, any Managing Member nor any Financing Fund is responsible for material income or franchise tax (other than standard payments owed to Delaware or any other state where such Person is qualified to do business). The Issuer and each of the Managing Members is, and shall at all relevant times continue to be, a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 that is disregarded as separate from a United States person (within the meaning of Section 7701(a)(30) of the Code) for U.S. federal income tax purposes. None of the Issuer, Managing Members or Financing Funds is, nor shall become, an association, a publicly traded partnership or a taxable mortgage pool that is taxable as a corporation for U.S. federal income tax purposes. None of the Issuer, Managing Members or Financing Funds is, nor shall become, subject to any tax in any jurisdiction outside the United States.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

4


(l) There is no action, suit or proceeding at law or in equity, before or by any court, government agency, public board or body (collectively and individually, an “Action”) pending with respect to which any Sunnova Party has been served with process which could reasonably be expected to result in a Material Adverse Effect.

(m) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance by any Sunnova Party of any Transaction Document to which it is a party except (i) those that have been obtained, filed or made on or prior to the applicable Closing Date, (ii) such as may be required under state securities or blue sky laws in any jurisdiction in connection with the purchase and sale of the Notes by the Purchasers and (iii) if not required to be obtained, filed or recorded on or prior to the applicable Closing Date, that will be obtained, filed or made when required. No consent or approval of any other Person (including a Tax Equity Investor) is required in connection with the execution, delivery or performance by any Sunnova Party of any Transaction Document to which it is a party except those that have been obtained, filed or made on or prior to the applicable Closing Date.

(n) None of the Sunnova Parties is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds from the transactions contemplated hereby, directly or indirectly, will be used for a purpose that violates, or would be inconsistent with, Regulation T, U or X promulgated by the Federal Reserve Board from time to time. As used in this Section 3(n), the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.

(o) All Third-Party Diligence Reports are, as among the parties to this Agreement, deemed to have been obtained by the Issuer pursuant to Rule 15Ga-2 and Rule 17g-10 of the Exchange Act and all legal obligations with respect to any such Third-Party Diligence Report have been timely complied with and will continue to be timely complied with. “Third-Party Diligence Report” means any report generated by a third party with respect to due diligence services obtained by any Sunnova Party within the meaning of Rule 15Ga-2 and Rule 17g-10 of the Exchange Act.

(p) None of the Sunnova Parties has requested (or caused any Person to request) any third party due diligence services, other than the third party due diligence services relating to the Third-Party Diligence Report(s) set forth in Annex F to any NPA Supplement. True and complete copies of each Third-Party Diligence Report have been provided to each Purchaser prior to the furnishing or filing of such report or portion thereof with the U.S. Securities and Exchange Commission or on its 17g-5 website, as applicable.

(q) (i) The Issuer is the owner of the Conveyed Property contributed and sold to it by the Depositor free and clear of all Liens other than Permitted Liens. Each Managing Member is the owner of the related Financing Fund Interests free and clear of all Liens other than Permitted Liens. All assets included in the Trust Estate are free and clear of all Liens other than Permitted Liens. Any and all financing statements and other documents or instruments necessary

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

5


to perfect the Indenture Trustee’s Lien on the Trust Estate have been filed (or arrangements have been made for such filings to occur within the time permitted under the Indenture or the Managing Member Pledge Agreement) in each filing office necessary for such purpose, and all filing fees and taxes, if any, payable in connection with such filings have been paid in full; and

(ii) The Indenture and the other Transaction Documents create a valid Grant of a security interest to the Indenture Trustee for the benefit of the Noteholders in all right, title and interest of the Issuer in the Trust Estate owned by it that is of a type in which a security interest may be created under Article 9 of the New York UCC. To the extent the UCC does not apply to the perfection of such security interest, all notices, filings and other actions (including the delivery of certificates representing the Managing Member Membership Interests and the instruments of transfer executed in blank) required by all Applicable Law have been taken to perfect such security interest and lien in the assets of the Trust Estate subject to Permitted Liens.

(r) Immediately after giving effect to the purchase of any Notes, each Sunnova Party will be solvent.

(s) None of the Sunnova Parties has indebtedness for money borrowed by such entity other than such indebtedness incurred pursuant to the Transaction Documents.

(t) Neither the Depositor nor the Issuer has agreed or consented to cause or permit any of its property, whether now owned or hereafter acquired, to be subject to a Lien or to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien, in each case other than Permitted Liens.

(u) None of the Sunnova Parties is an “investment company” required to register under the 1940 Act.

(v) None of the Sunnova Parties is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, United States Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) (ii) an agent, department or instrumentality of, or is otherwise beneficially owned 5% or more (or, to any Sunnova Party’s knowledge, at a level less than 5%) by, controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC sanctions program, or (iii) otherwise blocked, subject to sanctions under or engaged in any activity in violation of other United States economic sanctions, including but not limited to, the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Comprehensive Iran Sanctions, Accountability and Divestment Act or any similar sanctions law or regulation with respect to Iran or any other country, the Sudan Accountability and Divestment Act, any OFAC sanctions program, or any economic sanctions regulations administered and enforced by the United States or any enabling legislation or executive order relating to any of the foregoing (collectively, “U.S. Economic Sanctions”) or Canadian Economic Sanctions Laws (each OFAC Listed Person, each Canada Blocked Person and each other Person, entity, organization and government of a country described in clause (i), clause (ii) or clause (iii), a “Blocked Person”). None of the Sunnova Parties has been notified that its name appears or may in the future appear on a state list of Persons that engage in investment or other commercial activities in Iran or any other country that is subject to U.S. Economic Sanctions or Canadian Economic Sanctions Laws.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(w) No part of the proceeds from the sale of the Notes hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by the Issuer, directly or indirectly, (i) in connection with any investment in, or any transactions or dealings with, any Blocked Person, or (ii) otherwise in violation of U.S. Economic Sanctions.

(x) None of the Sunnova Parties (i) has been found in violation of, charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act or any other United States, Canada or other law or regulation governing such activities (collectively, “Anti-Money Laundering Laws”) or any U.S. Economic Sanctions violations or violations of Canadian Economic Sanctions Laws, (ii) to any Sunnova Party’s knowledge or, after making due inquiry, is under investigation by any Governmental Authority for possible violation of Anti-Money Laundering Laws or any U.S. Economic Sanctions violations or violations of Canadian Economic Laws, (iii) has been assessed civil penalties under any Anti-Money Laundering Laws or any U.S. Economic Sanctions or Canadian Economic Sanctions Laws, or (iv) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. Each Sunnova Party has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that such Person is and will continue to be in compliance with all applicable current and future Anti-Money Laundering Laws and U.S. Economic Sanctions and Canadian Economic Sanctions Laws.

(y) (i) None of the Sunnova Parties (A) has been charged with, or convicted of bribery or any other anti-corruption related activity under any applicable law or regulation in a U.S. or any non-U.S. country or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010 (collectively, “Anti-Corruption Laws”), (B) to any Sunnova Party’s knowledge, after making due inquiry, is under investigation by any U.S. or non-U.S. Governmental Authority for possible violation of Anti-Corruption Laws, (C) has been assessed civil or criminal penalties under any Anti-Corruption Laws or (D) has been or is the target of sanctions imposed by the United Nations, the European Union or Canada; and (ii) to any Sunnova Party’s knowledge, after making due inquiry, such Person has not, within the last five years, directly or indirectly offered, promised, given, paid or authorized the offer, promise, giving or payment of anything of value to a Governmental Authority official or a commercial counterparty for the purposes of: (A) influencing any act, decision or failure to act by such Governmental Authority official in his or her official capacity or such commercial counterparty, (B) inducing a Governmental Authority official to do or omit to do any act in violation of the Governmental Authority official’s lawful duty, or (C) inducing a Governmental Authority official or a commercial counterparty to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity; in each case in order to obtain, retain or direct business or to otherwise secure an improper advantage in violation of any applicable Anti-Corruption Law or which would cause any holder to be in violation of any Anti-Corruption Law applicable to such holder.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(z) No part of the proceeds from the sale of the Notes will be used, directly or indirectly, for any unlawful payments, including bribes, to any Governmental Authority official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage in violation of applicable Anti-Corruption Law. Each Sunnova Party has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that such Person is and will continue to be in compliance with all applicable current and future Anti-Corruption Laws.

(aa) No Person (i) has acted, directly or indirectly, as a broker, finder or financial advisor, other than Whitehall Capital Markets LLC, for any Sunnova Party in connection with the transactions contemplated by this Agreement, or (ii) is entitled to any fee or commission or like payment in respect thereof for which, in respect of both clauses (i) and (ii), any Purchaser may be liable.

(bb) So long as any Note remains outstanding, the Issuer shall maintain and deliver or cause to be delivered annually on the anniversary of the date hereof to the Noteholders evidence of a monitored private placement rating for all outstanding Notes, issued by the Rating Agency. Such costs and expenses related to such rating shall be borne by the Servicer in accordance with the Indenture.

(cc) The principal office of the Issuer where the Issuer’s records are kept (unless then held by the Indenture Trustee) is 20 East Greenway Plaza, Suite 475, Houston, Texas 77046.

(dd) No proceeds of any Notes will be used by the Issuer to acquire any security in any transaction which is subject to Sections 13 or 14 of the Exchange Act.

(ee) None of the Sunnova Parties, Managing Members, Financing Funds nor any ERISA Affiliates thereof, maintains or contributes to, or has any obligation or liability (including any contingent liability) under, any Employee Benefit Plans which would reasonably be expected to result in a Material Adverse Effect.

(ff) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Sunnova Parties to each Purchaser in the first sentence of this Section 2(ff) is made in reliance upon and subject to the accuracy of each Purchaser’s representations in Section 3(i) and Section 3(j) as to the sources of the funds to be used to pay the purchase price of the Notes to be purchased by such Purchaser.

(gg) To the extent required to be delivered in accordance with the Beneficial Ownership Regulation (as defined below), the Beneficial Ownership Certificate (as defined below) of the Issuer most recently delivered to the Purchasers is true and correct in all respects.

(hh) The Issuer shall provide such information and documentation as may reasonably be requested by any Purchaser from time to time for purposes of compliance by each Sunnova Party with applicable laws and any policy or procedure implemented by the Issuer to comply with the 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”). To the extent required by the Beneficial Ownership Regulation, the Issuer shall, as soon as practicable, and in

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

8


any event within five (5) Business Days after an officer of the Issuer obtains knowledge thereof, notify the Purchasers of any change in the information provided in any Beneficial Ownership Certificate that would result in a change to the list of beneficial owners identified therein and, in connection with each such notice (and at the same time such notice is provided), deliver to the Purchasers a new Beneficial Ownership Certificate, in form and substance reasonably acceptable to the Purchasers.

Section 3. Representations, Warranties and Covenants of each Purchaser. Each Purchaser, severally and not jointly, represents and warrants to, and agrees with the Issuer, on each Closing Date, that:

(a) Such Purchaser (i) is sufficiently experienced in financial and business matters to be capable of evaluating the merits and risks involved in purchasing the Notes and to make an informed decision relating thereto, (ii) has the ability to bear the economic risk of such Purchaser’s investment in such Notes, (iii) has been furnished with, and has carefully reviewed, all materials that it considers relevant to an investment in such Notes and (iv) has had a full opportunity to ask questions of and receive answers from each Sunnova Party and any Persons acting on their behalf relating to such Notes and an investment therein.

(b) Such Purchaser acknowledges that no market for the Notes currently exists. Such Purchaser acknowledges that it may find it impossible to liquidate its investment in the Notes at a time when it may be desirable to do so, or at any other time.

(c) No Person (i) has acted, directly or indirectly, as a broker, finder or financial advisor for such Purchaser in connection with the transactions contemplated by this Agreement (as supplemented by the NPA Supplements), or (ii) is entitled to any fee or commission or like payment in respect thereof for which, in respect of both clauses (i) and (ii), the Depositor or the Issuer may be liable.

(d) Such Purchaser has the requisite power and authority to execute and deliver this Agreement (if such Closing Date is the initial Closing Date) and the related NPA Supplement, and to purchase the Notes in accordance herewith, has duly authorized such execution, delivery and purchase, and has duly executed and delivered this Agreement (if such Closing Date is the initial Closing Date) and such NPA Supplement.

(e) Such Purchaser is acquiring the Notes as principal for its own account (or for one or more accounts each holder of which is both a Qualified Purchaser (defined below) and an Institutional Accredited Investor (defined below), and with respect to which accounts the Purchaser has investment discretion) for investment and not with a view toward, or for sale in connection with any distribution thereof in violation of the registration requirements of the Securities Act.

(f) Such Purchaser understands that the Notes have not been and will not be registered under the Securities Act in reliance upon exemptions from the registration requirements thereof, and, if in the future it decides to offer, resell, pledge or otherwise transfer the Notes, such Notes may be offered, resold, pledged or otherwise transferred only in accordance with applicable state and federal securities laws, the provisions of the Indenture (as supplemented by the related

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

9


Indenture Supplements and any other supplemental indentures) and the restrictive legends that the Purchaser understands such Notes will bear on such Notes, including without limitation the requirement for written certifications. In particular, such Purchaser understands that the Notes may be transferred only to a person that is both a Qualified Purchaser (with respect to the Issuer) and an Institutional Accredited Investor. Such Purchaser acknowledges that no representation is made as to the availability of any exemption under the Securities Act or any state securities laws for resale of the Notes. Such Purchaser understands that the Issuer is relying upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth in this Agreement in order to determine the availability of such exemptions.

(g) Such Purchaser has a properly completed and signed Internal Revenue Service Form W-9, Form W-8BEN, W-8BEN-E, W-8ECI, or W-8IMY, as applicable (or applicable successor form) and has delivered it to the Indenture Trustee. By the purchase of the Notes or its acceptance of a beneficial interest therein, such Purchaser acknowledges and agrees that, for all tax purposes, it is entering into this Agreement with the intention that the Notes will be characterized as indebtedness and shall treat the Notes as indebtedness, unless otherwise required by applicable law. The Purchaser also acknowledges and agrees that interest on the Notes will be treated as United States source interest, and, as such, United States withholding tax may apply. Each Purchaser of a Class B Note, and any Person that has or will have a direct or indirect ownership interest in it, is not and will not become a Disqualified Entity.

(h) Such Purchaser is a “qualified purchaser” as defined in Section 2(a)(51) of the 1940 Act (“Qualified Purchaser”) and an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (“Institutional Accredited Investor”).

(i) Each Purchaser of a Class A Note severally represents that at least one of the following statements is an accurate representation as to each source of funds (a Source) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:

(i) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (PTE) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the NAIC Annual Statement)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

(ii) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

10


(iii) the Source is either (1) an insurance company pooled separate account, within the meaning of PTE 90-1 or (2) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (iii), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

(iv) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (1) the identity of such QPAM and (2) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (iv); or

(v) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Company and (1) the identity of such INHAM and (2) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (v); or

(vi) the Source is a governmental plan; or

(vii) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (vii); or

(viii) the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA.

As used in this Section 3(i), the terms employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

11


(j) Each Purchaser of a Class B Note represents that each Source being used to pay the purchase price for the Notes by such Purchaser, is not “plan assets” of (i) one or more “benefit plan investors” (as defined in Section 3(42) of ERISA), or (ii) any plan or arrangement that is subject to any law that is substantially similar to Title I of ERISA or Section 4975 of the Code.

Section 4. Conditions Precedent. The obligation of each Purchaser to purchase any Notes of a Series on any Closing Date and the performance by the parties hereto of their respective obligations hereunder are (unless waived in writing by the party or parties for which such condition is included herein) subject to the satisfaction of the following conditions precedent:

(a) On such Closing Date, each of the following documents and instruments (the “Transaction Documents”) shall have been duly authorized, executed and delivered in form and substance satisfactory to the Purchasers and, with respect to such Notes, authenticated by the parties thereto, and shall be in full force and effect and no default shall exist thereunder:

(i) the Notes issued on such Closing Date;

(ii) this Agreement;

(iii) the NPA Supplement with respect to such Series of Notes;

(iv) the Indenture;

(v) the Indenture Supplement with respect to such Series of Notes;

(vi) the Management Agreement;

(vii) the Sale and Contribution Agreement and any related supplemental schedules and Transfer Certificates;

(viii) the Servicing Agreement;

(ix) the Facility Administration Agreement;

(x) the Asset Management Agreement;

(xi) the Custodial Agreement;

(xii) the Managing Member Pledge Agreements;

(xiii) the Parent Guaranty;

(xiv) the Account Control Agreement;

(xv) the Tax Equity Consent to Collateral Assignment;

(xvi) the Financing Fund Documents; and

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

12


(xvii) any other document with respect to such Series of Notes specified in the related Indenture Supplement or NPA Supplement.

(b) On such Closing Date, the Purchasers shall have received opinions, in form and substance reasonably satisfactory to the Purchasers, dated as of such Closing Date, covering the matters set forth in Exhibit D and covering such other matters incident to the transactions contemplated hereby as any Purchaser or its counsel may reasonably request.

(c) All representations and warranties made by each Sunnova Party herein are, as of such Closing Date (except for those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date), true and correct in all material respects.

(d) At least two (2) Business Days prior to such Closing Date for such Notes, the Purchasers shall have received written instructions signed by a responsible officer of the Depositor on behalf of the Issuer on letterhead of the Depositor confirming the following information: (i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number, (iii) the account name and number into which the purchase price for such Notes is to be deposited, and (iv) the interest rate payable on such Notes, which shall be determined as set forth in Exhibit B hereto.

(e) The Purchasers shall have received a ratings letter from the Rating Agency, confirming the Notes to be issued on such Closing Date have received a rating of, with respect to the Class A Notes, at least A-(sf) and, with respect to the Class B Notes, at least BB(sf).

(f) The Rating Agency Condition shall have been satisfied with respect to the Notes of each then-outstanding Series.

(g) Each Sunnova Party shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by such Sunnova Party prior to or on such Closing Date.

(h) All conditions with respect to the issuance of such Notes under the Indenture and all conditions with respect to any asset acquisitions by the Issuer occurring on such Closing Date under the Sale and Contribution Agreement, in each case shall have been, or substantially concurrently therewith shall be, satisfied.

(i) Before and immediately after giving effect to the issuance and sale of such Notes (and the application of the proceeds thereof as contemplated by Section 15), no Default or Event of Default, Early Amortization Event, Facility Administrator Termination Event, Manager Termination Event or Servicer Termination Event shall have occurred and be continuing.

(j) The Issuer shall have delivered to the Purchasers a certificate, dated as of such Closing Date, certifying that the conditions specified in this Section 4 have been fulfilled.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

13


(k) Each Sunnova Party shall have delivered to the Purchasers a certificate, dated as of such Closing Date for such Notes, certifying as to (i) with respect to the Issuer, the resolutions attached thereto relating to the authorization, execution and delivery of such Notes, (ii) the resolutions attached thereto relating to the authorization, execution and delivery of this Agreement, the Indenture and any other Transaction Documents to which it is a party (or that such resolutions have not been amended, supplemented or modified since the most recent Closing Date, as applicable) and (iii) such Sunnova Party’s organizational documents as then in effect.

(l) The Issuer shall have delivered to the Purchasers a certificate, dated as of such Closing Date, regarding beneficial ownership with respect to itself in a form which satisfies the Beneficial Ownership Regulation (each, a “Beneficial Ownership Certificate”).

(m) On such Closing Date, each Purchaser’s purchase of the Notes shall (i) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, ii) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (iii) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by any Purchaser, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.

(n) A private placement number issued by CUSIP service bureau shall have been obtained for each Class of Notes issued on such date.

(o) The Issuer or Depositor, on behalf of the Issuer, shall have paid on such Closing Date the reasonable and documented fees, charges and disbursements of the Purchasers’ counsel for each Class of Notes to the extent reflected in a statement of such counsel rendered to the Issuer at least one (1) Business Day prior to such Closing Date, as contemplated in Section 7 hereof.

(p) At least ten (10) Business Days prior to such Closing Date, the Purchasers shall have received the Financing Fund Documents and any other documents reasonably requested by any Purchaser related to the applicable Financing Fund or to the applicable Solar Assets. Each Purchaser shall be reasonably satisfied with its due diligence review, including with respect to such Financing Funds and such Solar Assets.

(q) There shall have been no objection to the issuance of such Notes by Purchasers with more than 25% of the aggregate Pro Rata Share of the applicable Class of such Notes.

(r) The certificates evidencing the Managing Member Membership Interests along with instruments of transfer related thereto, executed in blank, shall have been delivered to the Indenture Trustee as required by the Transaction Documents.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

14


(s) The Issuer shall have delivered to the Purchasers the following schedules in form and substance reasonably acceptable to each Purchaser:

(i) a schedule (including all material assumptions) of the Scheduled Outstanding Note Balance for each subsequent Payment Date for (A) the Class A Notes and Class B Notes of such Series and (B) the Class A Notes and Class B Notes of all Series;

(ii) a schedule of (A) the Scheduled Financing Fund Expenses, (B) the Scheduled Tax Equity Investor Distributions and (C) the Scheduled Managing Member Distributions, in each case during each calendar year from and including the year of such Closing Date until the Final Maturity Date and assuming that the Purchase Option under each Financing Fund Documents is exercised at the respective Purchase Option Call Date and that no Distribution Variations occur;

(iii) a schedule of the aggregate of Scheduled Host Customer Payments (excluding past due amounts, if any) and Scheduled PBI Payments for all Host Customer Solar Assets, the aggregate of Scheduled Hedged SREC Payments for all Hedged SREC Solar Assets commencing as of the applicable Cut-Off Date for each Payment Date; and

(iv) a schedule of the Aggregate Discounted Solar Asset Balance of the Conveyed Property conveyed on such Closing Date.

(t) Each Purchasers shall have received evidence reasonably satisfactory to it, which may be an opinion of counsel (or a bring-down or reliance letter), that the security interests in and to the Trust Estate intended to be created under the Indenture (as supplemented by the related Indenture Supplement) on or prior to such Closing Date shall have been created in favor of the Indenture Trustee for the benefit of the Noteholders and are (or upon the filing of financing statements, will be) fully perfected and in full force and effect.

(u) After giving effect to the issuance of such Notes, the Collateral Test shall continue to be satisfied.

(v) All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be reasonably satisfactory to each Purchaser and its counsel, and each Purchaser and its counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such counsel may reasonably request.

(w) No Market Disruption Event shall have occurred and be continuing. For the purposes of this Section 4(w), “Market Disruption Event” shall mean (i) the indefinite closing of the domestic market for U.S. Treasury securities or derivatives, (ii) a general and indefinite suspension, material limitation, or significant disruption of trading in securities generally on the New York Stock Exchange or in the domestic market for U.S. Treasury securities or derivatives, (iii) reasonable and adequate means do not exist for ascertaining the BVCSUP10 Index and BVCSUP30 Index or (iv) any Purchaser reasonably determines (which determination shall be conclusive and binding absent manifest error) that the BVCSUP10 Index and BVCSUP30 Index does not adequately reflect the cost to such Purchasers for funding such Notes.

(x) Upon its satisfaction that all conditions precedent set forth herein, in the related NPA Supplement and in the Indenture have been completed, each Purchaser shall, pursuant to Section 5.01(a)(viii) of the Indenture, deliver a confirmation of the same (which confirmation may be by email) to the Indenture Trustee.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

15


Section 5. Limited Recourse. The obligations of the Sunnova Parties under this Agreement (including, without limitation, any claims arising under this Agreement) shall be limited in recourse to the proceeds of the Trust Estate (as defined in and applied in accordance with the Indenture) and to the extent such proceeds are insufficient to meet the obligations of the Sunnova Parties under this Agreement in full, the Issuer shall have no further liability and any outstanding obligations of the Sunnova Parties and all claims against the Sunnova Parties shall be extinguished. Following each Closing Date, all payments by any Sunnova Parties under this Agreement as supplemented by the related NPA Supplement are subject to the Priority of Payments as specified in Section 5.06 of the Indenture. The obligations of the Sunnova Parties and the Purchasers under this Agreement shall be solely the obligations of the applicable Sunnova Parties and the respective Purchasers, respectively, and no such Person shall have any recourse with respect to such obligations to any other Person, including without limitation the directors, officers, managers, shareholders, incorporators, partners, members, settlors, trustees or affiliates of the other party hereto with respect to any claims, losses, damages, liabilities, indemnities or other obligations in connection with the transactions contemplated hereby. This Section 6 shall survive any termination of this Agreement.

Section 6. Transaction Expenses. Whether or not the transaction contemplated hereby is consummated, the Issuer or Depositor, on behalf of the Issuer, will pay all reasonable and documented third party costs and expenses (including attorneys’ fees of a single counsel and single local counsel for each Class of Notes in each applicable jurisdiction retained by the Purchasers, except in the case of a conflict of interest) in connection with the negotiation of this Agreement and the other Transaction Documents and the closing of the transactions contemplated by the Transaction Documents as well as up to $5,000 per Series of expenses for required filings with the National Association of Insurance Commissioner in connection therewith.

Section 7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. All representations and warranties contained herein are made as of the applicable Closing Date and shall survive the execution and delivery of this Agreement and the issuance of Notes contemplated hereby. This Agreement, the Notes and the other Transaction Documents embody the entire agreement and understanding between the Purchasers and the Sunnova Parties and supersede all prior agreements and understandings relating to the subject matter hereof.

Section 8. Notice. Any notice or other communication required or permitted hereunder shall be in writing and may be delivered personally or by commercial overnight carrier, by facsimile or electronic mail, or mailed (postage prepaid via the U.S. Postal Service) to the applicable party at the addresses set forth on Exhibit A (or at such other address as the party may designate in writing from time to time); provided, however, any such notice or communication shall be deemed to be delivered only when actually received by the party to whom it is addressed.

Section 9. Successors. This Agreement (a) shall inure to the benefit of and shall be binding upon the Issuer, the Purchasers and their respective successors and assigns and (b) shall inure to the benefit of the Indenture Trustee; provided, however, that notwithstanding anything contained herein to the contrary, (i) the Issuer may not assign any of its rights or delegate any of

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

16


its duties hereunder or under any of the other Transaction Documents to which it is a party except as permitted pursuant to the terms thereof and (ii) no Purchaser may assign any of its rights or delegate any of its duties hereunder without the prior written consent of the Issuer; provided that, except as set forth below with respect to Benefit Plan Transfers (as defined below), no prior written consent of the Issuer shall be required with respect to any assignment (w) on and after the first anniversary of the date hereof, (x) by a Purchaser to any Affiliate of such Purchaser or to any investment fund or managed account that invests in similar debt instruments and that is managed by the same investment advisor as such Purchaser or an Affiliate of such investment advisor, (y) to another Purchaser named on Exhibit A or (z) after the occurrence and continuance of an Early Amortization Event or an Event of Default. Notwithstanding anything to the contrary, in no event may a Purchaser (or its successor or assign) transfer its rights or delegate any of its duties with respect to the Class B Notes to a transferee that will use “plan assets” of either (i) one or more “benefit plan investors” or (ii) any plan or arrangement subject to any law that is substantially similar to Title I of ERISA or Section 4975 of the Code to purchase Class B Notes (a “Benefit Plan Transfer”). Any Benefit Plan Transfer shall not be given effect and shall be void ab initio. The Indenture Trustee (x) is intended as, and shall be, a third-party beneficiary of the Sunnova Parties under this Agreement and (y) shall be entitled to enforce their rights, remedies and claims hereunder directly against the other parties as though it were a signatory of this Agreement, but shall not be deemed to have, or to have assumed, any obligation or liability hereunder. Nothing expressed herein is intended or shall be construed to give any Person (other than the Persons referred to in the preceding two sentences, in each case, to the extent provided therein or elsewhere in this Agreement) any legal or equitable right, remedy or claim under or in respect of this Agreement or any other agreement or instrument or against any party hereto or thereto or beneficiary hereof or thereof. Notwithstanding anything to the contrary in this Agreement, (i) no Purchaser (including its successors and assigns) may assign any of its rights in and to Class B Notes hereunder to the extent that the Issuer reasonably determines that such assignment may result in the issuance of more than ninety-nine (99) Class B Notes under the Indenture and (ii) no Purchaser (including its successors and assigns) may transfer its rights or delegate any of its duties with respect to the Class B Notes to any Person that is or will become a Disqualified Entity or any Person in which a direct or indirect ownership interest is held or will be held by a Person that is or will become a Disqualified Entity.

Section 10. Applicable Law; Submission to Jurisdiction, Etc.

(a) THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT WITHOUT REGARD TO CONFLICT OF LAWS RULES OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

(b) EACH PARTY HERETO IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED STATES FEDERAL COURT IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS AGREEMENT.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

17


(c) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY LEGALLY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY ACTION OR PROCEEDING BY THE MAILING OR DELIVERY OF COPIES OF SUCH PROCESS TO IT AT SUCH PARTY’S ADDRESS SET FORTH ON EXHIBIT A HERETO. EACH PARTY HERETO AGREES 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.

(d) EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 11. Amendments. Except as set forth in Section 17 hereof, no modification, supplement, amendment or waiver of any provision of this Agreement shall in any event be effective unless the same shall be in writing and signed by the Issuer, the Depositor and the Purchasers representing at least a majority of the unissued aggregate principal amount of each Class of Notes set forth on Exhibit A, and then any such waiver or consent shall be effective only in the specific instance and for the purpose for which given; provided that no amendment or waiver (a) of any of the provisions of Section 1, 2, 3, 4, 5, 6, 9 or this Section 11, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing or (b) may without the written consent of each Purchaser change the percentage of the Purchasers that are required to consent to any amendment or waiver.

Section 12. Severability of Provisions. In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 13. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such respective counterparts shall together constitute but one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission (including, without limitation, via portable document format or “PDF”) shall be as effective as delivery of a manually executed counterpart hereof.

Section 14. Use of Proceeds. The Issuer shall use the proceeds of the Notes (a) to repay any financing secured by the ownership interests in any Managing Members or Financing Funds, as applicable, certain Financing Fund assets and related rights under the respective Financing Fund Documents, (b) pay certain expenses incurred in connection with the issuance of the Notes (including payment of premiums for the Tax Loss Insurance Policy, if any), (c) make any required deposits into the Liquidity Reserve Account and the Lockbox Account and (d) make distributions of remaining proceeds to or as directed by the Depositor, as member of the Issuer.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

18


Section 15. Treatment as Indebtedness. Subject to Section 2.13 of the Indenture, each of the Sunnova Parties and the Purchasers hereby confirm that it will enter into this Agreement (as applicable) and any related NPA Supplement and the Transaction Documents to which it is a party with the intention that the Notes will qualify under applicable tax law as indebtedness. Each of the Sunnova Parties and the Purchasers agree with respect to any Notes (a) to treat and shall treat the Notes as indebtedness for all tax purposes and (b) to take no action or fail to take any action, which could reasonably be expected to prevent the Notes from being treated as indebtedness for tax purposes unless otherwise required by Applicable Law.

Section 16. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Transaction Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Transaction Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b) the effects of any Bail-in Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Transaction Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon this Agreement will become a binding agreement between the undersigned in accordance with its terms.

Section 17. Additional Purchasers. Any Person (an “Additional Purchaser”) may, with the consent of the Issuer, but without the consent of any existing Purchaser, become party to this Agreement as a “Purchaser” hereunder solely with respect to the Class B Notes by executing and delivering to the Issuer a Purchaser Joinder Agreement in substantially the form set forth on Exhibit E hereto; provided that, (a) no Additional Purchaser may provide a commitment to purchase Class B Notes (a “Class B Note Purchase Commitment”) unless such Class B Note Purchase Commitment shall first have been offered to BlackRock Financial Management, Inc., for purchase by one of its managed accounts or funds, on identical terms, and it shall have rejected such Class B Note Purchase Commitment, or failed to execute and deliver a Purchaser Joinder Agreement accepting such Class B Note Purchase Commitment within seven (7) Business Days

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

19


of notification of the terms thereof by the Issuer in writing and (b) such Class B Note Purchase Commitment, when exercised, would not result in such Additional Purchaser failing to be able to make the representations set forth in Section 2.06(n)(xi) of the Indenture. Notwithstanding anything to the contrary in this Agreement, a Purchaser Joinder Agreement may only be entered into in compliance with the limitations on the aggregate principal amount of Notes set forth in Section 1(a) of this Agreement. Upon execution and delivery of such Purchaser Joinder Agreement, any reference to the Purchasers in this Agreement shall be deemed to include such Additional Purchaser, and Exhibit A to this Agreement shall be deemed amended to include the information set forth on Schedule A to such Purchaser Joinder Agreement.

[Signature Pages Follow]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

20


Very truly yours,

SUNNOVA RAYS I ISSUER, LLC,

a Delaware limited liability company,

as Issuer

By:    /s/ Christopher Smith
Name:   Christopher Smith
Title:  

Senior Vice President, Head of Finance

and Treasurer

 

SUNNOVA RAYS I DEPOSITOR, LLC

a Delaware limited liability company,

as Depositor

By    /s/ Christopher Smith
Name:   Christopher Smith
Title:  

Senior Vice President, Head of Finance

and Treasurer

Signature Page to Note Purchase Agreement

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


The foregoing Note Purchase Agreement is hereby confirmed and accepted:

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,

a New York domiciled life insurance company

 

By:   Nuveen Alternative Advisors LLC,
a Delaware limited liability company,
its investment manager
By:  

/s/ Chris Miller

  Name:  

Chris Miller

  Title:  

Director

Signature Page to Note Purchase Agreement

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


NEW YORK LIFE INSURANCE COMPANY,

By: NYL Investors LLC, as Investment Manager

 

By:   /s/ Scott R. Seewald
  Name:   Scott R. Seewald
  Title:   Vice President

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,

By: NYL Investors LLC, as Investment Manager

 

By:   /s/ Scott R. Seewald
  Name:   Scott R. Seewald
  Title:   Vice President

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT (BOLI 30C),

By: NYL Investors LLC, as Investment Manager

 

By:   /s/ Scott R. Seewald
  Name:   Scott R. Seewald
  Title:   Vice President

THE BANK OF NEW YORK MELLON, A BANKING CORPORATION ORGANIZED UNDER THE LAWS OF NEW YORK, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE UNDER THAT CERTAIN TRUST AGREEMENT DATES AS OF JULY 1ST, 2015 BETWEEN NEW YORK LIFE INSURANCE COMPANY, AS GRANTOR, JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.), AS BENEFICIARY, JOHN HANCOCK LIFE INSURANCE COMPANY OF NEW YORK, AS BENEFICIARY, AND THE BANK OF NEW YORK MELLON, AS TRUSTEE

By: New York Life Insurance Company, as attorney-in-fact

 

By:   /s/ Scott R. Seewald
  Name:   Scott R. Seewald
  Title:   Vice President

Signature Page to Note Purchase Agreement

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ALLIANZ LIFE INSURANCE CO. OF NORTH AMERICA,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:   Director

PROTECTIVE LIFE INSURANCE COMPANY,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:   Director

THE SAVINGS BANK LIFE INSURANCE COMPANY OF MASSACHUSETTS,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:   Director

JACKSON NATIONAL LIFE INSURANCE COMPANY,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:   Director

RIMAC SEGUROS Y REASEGUROS,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:   Director

Signature Page to Note Purchase Agreement

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


HR US INFRA DEBT LP,

By: HR US Infra Debt (GenPar), LLC, its general partner

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ Jeetu Balchandani
  Name:   Jeetu Balchandani
  Title:   Managing Director

USD IG INFRASTRUCTURE DEBT (IRELAND) DAC,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ Jeetu Balchandani
  Name:   Jeetu Balchandani
  Title:   Managing Director

AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:   Director

Signature Page to Note Purchase Agreement

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


RGA REINSURANCE COMPANY,

By: BlackRock Financial Management, Inc.,

as Investment Manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:  

Director

COUNTRY LIFE INSURANCE CO.,

By: BlackRock Financial Management, Inc.,

its investment manager

 

By:   /s/ James Anderson
  Name:   James Anderson
  Title:  

Director

Signature Page to Note Purchase Agreement

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


EXHIBIT A

1. Purchasers

 

Purchaser

  

Commitment to
Purchase Class A
Notes

  

Commitment to
Purchase Class B
Notes

Teachers Insurance and Annuity Association of America

730 Third Avenue

New York, New York 10017

 

With a copy to:

JPMorgan Chase Bank, N.A.

P.O. Box 35308

Newark, New Jersey 07101

   $[***]    $[***]

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

   $[***]    $[***]

New York Life Insurance and Annuity Corporation

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

   $[***]    $[***]

New York Life Insurance and Annuity Corporation

Institutionally Owned Life Insurance Separate Account (BOLI 30C)

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

   $[***]    $[***]

Hare & Co, LLC

On behalf of:

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, NY 10010

 

With a copy to:

The Bank of New York Mellon

c/o Hare & Co, LLC

US Income

2 Hanson Place

Private placement Dept. 10th Floor

Brooklyn, NY 11217

   $[***]    $[***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Exhibit A-1


Allianz Life Insurance Co. of North America*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

Protective Life Insurance Company*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

The Savings Bank Life Insurance Company of Massachusetts*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

Jackson National Life Insurance Company*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

HR US INFRA DEBT LP*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

USD IG Infrastructure Debt (Ireland) DAC*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

American Equity Investment Life Insurance Company*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

 

* 

indicates that such Purchaser is subject to the direction letter delivered to the Indenture Trustee on March 28, 2019 with respect to voting, which letter may be revoked and/or amended from time to time in accordance with the terms thereof.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Exhibit A-2


Hare & Co, LLC on behalf of

RGA REINSURANCE COMPANY*

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

 

With a copy to:

Hare & Co, LLC

The Bank of New York Mellon Corp

Attn: P&I Department

PO BOX 19266

Newark, NJ 07195

   $[***]    $[***]

Country Life Insurance Co. *

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

   $[***]    $[***]

2. Issuer

Sunnova RAYS I Issuer, LLC

20 East Greenway Plaza, Suite 475

Houston, Texas 77046

Attn: Chief Financial Officer

Email: treasury@sunnova.com and notices@sunnova.com

3. Depositor

Sunnova RAYS I Depositor, LLC

20 East Greenway Plaza, Suite 475

Houston, Texas 77046

Attn: Chief Financial Officer

Email: treasury@sunnova.com and notices@sunnova.com

4. Facility Administrator, Manager and Servicer

Sunnova RAYS I Management, LLC

20 East Greenway Plaza, Suite 475

Houston, Texas 77046

Attn: Chief Financial Officer

Email: treasury@sunnova.com and notices@sunnova.com

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Exhibit A-2


EXHIBIT B

Interest Rate Determination

The interest rate for any Series of Notes will be automatic and determined on the applicable Closing Date as follows:

 

   

The Class A Notes Interest Rate shall be a percentage (rounded to the nearest hundredths decimal place) equal to (i) ICUR Treasury yield matching the average life of such Series of Class A Notes; plus (ii) the Net Spread at the time such Notes’ interest rate is set.

 

   

The Class B Notes Interest Rate shall be 6.35%.

For purposes of calculating the Class A Notes Interest Rate, the Net Spread and Spread Premium shall be calculated as follows:

 

   

Adjusted Spread: shall mean, the Initial Spread plus the Index Spread minus the Initial Index Spread.

 

   

Index Spread: shall mean, the interpolated yield corresponding to the weighted average life of such Class of such Series of Notes (using BVCSUP10 and BVCSUP30 yields); minus (ii) the ICUR Treasury yield matching the average life of such Series of Notes (to remove the Treasury yield component of the index yield); as of two Business Days Prior to the Funding Date for each Series of Notes

 

   

Initial Index Spread: shall mean, the interpolated yield corresponding to the weighted average life of such Class of such Series of Notes (using BVCSUP10 and BVCSUP30 yields); minus (ii) the ICUR Treasury yield matching the average life of such Series of Notes (to remove the Treasury yield component of the index yield) as of two Business Days Prior to the Closing Date

 

   

Initial Spread: shall mean 230 basis points.

 

   

Net Spread: The Net Spread shall be the greater of (i) 150 bps or (ii) the Adjusted Spread.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Exhibit B-1


EXHIBIT C

FORM OF NOTE PURCHASE AGREEMENT SUPPLEMENT

This NOTE PURCHASE AGREEMENT SUPPLEMENT NO. [    ], dated as of [    ], (this “NPA Supplement”), is among SUNNOVA RAYS I ISSUER, LLC (the “Issuer”), SUNNOVA RAYS I DEPOSITOR, LLC (the “Depositor”), SUNNOVA RAYS I MANAGEMENT, LLC (as “Servicer”, as “Manager” and as “Facility Administrator” and, together with the Issuer and Depositor, collectively, the “Sunnova Parties”), and the Purchasers named on Annex A hereto (the “Purchasers”).

Reference is made to (i) the Indenture, dated as of March 28, 2019, among the Issuer and Wilmington Trust, National Association, as indenture trustee (in such capacity, the “Indenture Trustee”), as supplemented by the Indenture Supplement No. [    ], dated as of [    ], (as so supplemented, the “Indenture”), among the Issuer, and the Indenture Trustee, and (ii) the Note Purchase Agreement, dated as of March 28, 2019, (the “Note Purchase Agreement”), among the Sunnova Parties and the Purchasers named therein. Capitalized terms used herein but not defined shall have the meanings set forth in the Indenture or the Note Purchase Agreement, as applicable.

Section 1. Series [    ] Notes.

(a) Pursuant to the Indenture, the Issuer shall issue, and the Purchasers shall purchase, on [    ] (the “Closing Date”) (i) a new Series of Class A Notes designated as the Series [    ] Class A Notes (the “Series [    ] Class A Notes”) [and/or] (ii) a new Series of Class B Notes designated as the Series [    ] Class B Notes (the “Series [    ] Class B Notes” and, together with the Series [    ] Class A Notes, the “Series [    ] Notes”).

(b) The parties are entering into this NPA Supplement pursuant to the Note Purchase Agreement to confirm their understanding of the terms of the Series [    ] Notes. Except to the extent modified by this NPA Supplement, all terms and conditions of the Note Purchase Agreement are hereby ratified, confirmed and incorporated herein. [Each Purchaser not originally a party to the Note Purchase Agreement hereby (i) represents that it is familiar with the terms and conditions contained in the Note Purchase Agreement, (ii) represents that it is in compliance with such terms and conditions as of the date hereof, and (iii) covenants that it shall comply with, adhere to, assume all of the obligations imposed upon it as the Purchaser under and otherwise be bound by the terms and conditions of the Note Purchase Agreement.]

(c) Upon satisfaction of the conditions precedent set forth in the Indenture and the Note Purchase Agreement, the Issuer shall sell and the Purchasers shall severally purchase the Series [    ] Notes in the principal amounts of each Class as set forth beside its respective name in Annex A hereto. The purchased Series [    ] Notes shall be registered in the names and denominations set forth in Annex A hereto.

(d) Immediately after giving effect to the issuance of the Series [ ] Notes on the Closing Date, the Outstanding Note Balance for (i) all Class A Notes of all Series is $[                ] and (ii) all Class B Notes of all Series is $[                ].

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Exhibit C-1


(e) The Aggregate Discounted Solar Asset Balance of the Conveyed Property contributed to the Issuer on the related Cut-Off Date is $[                ].

Section 2. Purchase, Sale, Payment and Delivery of the Series [    ] Notes. The sale and purchase of the [Class A Notes and Class B Notes] to be purchased by the Purchasers shall occur, subject to the terms and conditions of the Note Purchase Agreement and this NPA Supplement, on the Closing Date at the offices of [    ] at [10:00 a.m. Eastern time]. On the Closing Date, the Issuer will deliver to each Purchaser (a) the [    ] Class A Notes to be purchased by such Purchaser in the form of a single Class A Note (or such greater number of Class A Notes in denominations of at least $500,000 and integral multiples of $1.00 in excess of thereof as such Purchaser may request or such other amounts as set forth in the applicable Indenture Supplement) or (b) the [    ] Class B Notes to be purchased by such Purchaser in the form of a single Class B Note (or such greater number of Class B Notes in denominations of at least $1,000,000 and integral multiples of $1.00 in excess of thereof as such Purchaser may request or such other amounts as set forth in the applicable Indenture Supplement), as applicable, in each case, dated as of the Closing Date and registered in the applicable Purchaser’s name (or in the name of its nominee as set forth in Annex A hereto), against delivery by such Purchaser to the Issuer or its order of immediately available funds in the amount of the purchase price therefor as set forth in Annex A to this NPA Supplement. If on the Closing Date the Issuer shall fail to tender such Notes to the Purchasers as provided above in this NPA Supplement, or any of the conditions specified in Section 5 of the Note Purchase Agreement with respect to such Notes or in this NPA Supplement shall not have been fulfilled to each Purchaser’s satisfaction or waived by such Purchaser, each Purchaser shall, at its election, be relieved of all further obligations under the Note Purchase Agreement as supplemented by this NPA Supplement with respect to such Notes without thereby waiving any rights such Purchaser may have by reason of any of the conditions specified in Section 5 of the Note Purchase Agreement or this NPA Supplement not having been fulfilled to such Purchaser’s satisfaction or such failure by the Issuer to tender such Notes. Attached hereto as Annex A to this NPA Supplement is a schedule (including all material assumptions) of the Scheduled Outstanding Note Balance for each subsequent Payment Date for (A) the Series 2019-1 Class A Notes and Series 2019-1 Class B Notes and (B) the Class A Notes and Class B Notes of all Series. Attached hereto as Annex B to this NPA Supplement is a schedule of Managing Members and Financing Funds. Attached hereto as Annex C to this NPA Supplement is a schedule of (A) the Scheduled Financing Fund Expenses, (B) the Scheduled Tax Equity Investor Distributions and (C) the Scheduled Managing Member Distributions, in each case during each calendar year from and including the year of such Closing Date until the Final Maturity Date and assuming that the Purchase Option under each Financing Fund Documents is exercised at the respective Purchase Option Call Date and that no Distribution Variations occur. Attached hereto as Annex D to this NPA Supplement is a schedule of the aggregate of Scheduled Host Customer Payments (excluding past due amounts, if any) and Scheduled PBI Payments for all Host Customer Solar Assets, the aggregate of Scheduled Hedged SREC Payments for all Hedged SREC Solar Assets commencing as of the applicable Cut-Off Date for each Payment Date. Attached hereto as Annex E to this NPA Supplement is a schedule of the Aggregate Discounted Solar Asset Balance of the Conveyed Property conveyed on such Closing Date. Attached hereto as Annex F to this NPA Supplement a schedule of Third-Party Diligence Reports.

Section 3. Representations and Warranties. The Sunnova Parties and the Purchasers hereby reaffirm that each of their respective representations and warranties contained in the Note Purchase Agreement and the other Transaction Documents are true and correct in all material

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Exhibit C-2


respects (or, if already limited by materiality qualifiers, are true and correct in all respects) as of the date hereof (except to the extent expressly made as of an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date).

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Exhibit C-3


Very truly yours,

SUNNOVA RAYS I ISSUER, LLC,

a Delaware limited liability company, as Issuer

By:    
Name:  
Title:  

 

SUNNOVA RAYS I DEPOSITOR, LLC

a Delaware limited liability company, as Depositor

By    
Name:  
Title:  

 

SUNNOVA RAYS I MANAGEMENT, LLC a Delaware limited liability company, as Servicer, as Manager and as Facility Administrator
By    
Name:  
Title:  

Signature Page to NPA Supplement No. [__]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


The foregoing NPA Supplement is hereby confirmed and accepted:

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,

a New York domiciled life insurance company

 

By:   Nuveen Alternative Advisors LLC, a Delaware limited liability company, its investment manager

 

By:    
  Name:    
  Title:    

Signature Page to NPA Supplement No. [__]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


NEW YORK LIFE INSURANCE COMPANY,

By: NYL Investors LLC, as Investment Manager

 

By:

   
 

Name:

   
 

Title:

   

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,

By: NYL Investors LLC, as Investment Manager

 

By:

   
 

Name:

   
 

Title:

   

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT,

By: NYL Investors LLC, as Investment Manager

 

By:

   
 

Name:

   
 

Title:

   

HARE & CO, LLC,

By: NYL Investors LLC, as Investment Manager

 

By:

   
 

Name:

   
 

Title:

   

Signature Page to NPA Supplement No. [__]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ALLIANZ LIFE INSURANCE CO. OF NORTH AMERICA,

By: BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

PROTECTIVE LIFE INSURANCE COMPANY,

 

By: BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

THE SAVINGS BANK LIFE INSURANCE COMPANY

OF MASSACHUSETTS,

 

By: BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

JACKSON NATIONAL LIFE INSURANCE COMPANY,

By: BlackRock Financial Management, Inc.,

 

as Investment Manager
By:    
  Name:    
  Title:    

Signature Page to NPA Supplement No. [    ]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


RIMAC SEGUROS Y REASEGUROS,

By: BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

HR US INFRA DEBT LP,

By: HR US Infra Debt (GenPar), LLC, its general partner
By: BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

USD IG INFRASTRUCTURE DEBT (IRELAND) DAC,

By: BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY,

By:  BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

Signature Page to NPA Supplement No. [    ]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


Signature Page to NPA Supplement No. [    ]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


RGA REINSURANCE COMPANY,

By: BlackRock Financial Management, Inc.,
as Investment Manager
By:    
  Name:    
  Title:    

COUNTRY LIFE INSURANCE CO.,

By: BlackRock Financial Management, Inc.,
its investment manager
By:    
  Name:    
  Title:    

Signature Page to NPA Supplement No. [    ]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ANNEX A TO NPA SUPPLEMENT

 

Name and Address

   Series      Principal Amount of
Class A Notes
     Class A Notes
Issue Price
     Principal Amount
of Class B Notes
     Class B Notes
Issue Price
     Aggregate
Purchase Price
 

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA

730 Third Avenue

New York, New York 10017

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

NEW YORK LIFE INSURANCE COMPANY

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-1 to NPA Supplement


NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT (BOLI 30C)

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

 

HARE & CO., LLC

 

On behalf of: NEW YORK LIFE INSURANCE COMPANY

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, NY 10010

 

With a copy to:

The Bank of New York Mellon

c/o Hare & Co., LLC

US Income

2 Hanson Place

Private placement Dept. 10th Floor

Brooklyn, NY 11217

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-2 to NPA Supplement


ALLIANZ LIFE INSURANCE CO. OF NORTH AMERICA

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

PROTECTIVE LIFE INSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

THE SAVINGS BANK LIFE INSURANCE COMPANY OF MASSACHUSETTS

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                   
$[    ]
 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-3 to NPA Supplement


JACKSON NATIONAL LIFE INSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

RIMAC SEGUROS Y REASEGUROS

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

HR US INFRA DEBT LP

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-4 to NPA Supplement


USD IG INFRASTRUCTURE DEBT (IRELAND) DAC

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

HARE & CO., LLC

On behalf of: RGA REINSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

 

With a copy to:

Hare & Co., LLC

The Bank of New York Mellon Corp

Attn: P&I Department

PO BOX 19266

Newark, NJ 07195

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-5 to NPA Supplement


COUNTRY LIFE INSURANCE CO.

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA

730 Third Avenue

New York, New York 10017

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

NEW YORK LIFE INSURANCE COMPANY

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

     [    ]        $[    ]        100%        $[    ]                    $[    ]  

Payment and Notice Instructions

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-6 to NPA Supplement


I. Payments

All payments on or in respect of the Notes to the Purchasers listed above shall be made in immediately available funds on the due date by electronic funds transfer, to:

JPMorgan Chase Bank, N.A.

ABA # [***]

Account Number: [***]

Account Name: [***]

For Further Credit to the Account Number: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

JPMorgan Chase Bank

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

JPMorgan Chase Bank

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

JPMorgan Chase Bank

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-7 to NPA Supplement


The Bank of New York Mellon

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

The Bank of New York Mellon

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

The Bank of NY Mellon

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

State Street Bank and Trust Company, N.A., New York

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-8 to NPA Supplement


The Bank of New York Mellon

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

Citibank N.A., New York

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

The Bank of New York Mellon

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

The Bank of New York Mellon

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-9 to NPA Supplement


STATE STREET BANK AND TRUST COMPANY, N.A., NEW YORK

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

The Bank of New York Mellon

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

The Northern Trust Company

ABA # [***]

Account Number: [***]

Account Name: [***]

Reference: PPN:

Maturity Date:            /Interest Rate:            %/P&I Breakdown

Payment Notices

All notices with respect to payments and prepayments of the Notes shall be sent to:

Teachers Insurance and Annuity Association of America

730 Third Avenue

New York, New York 10017

Attention: Securities Accounting Division

Phone: [***]

Facsimile: [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-10 to NPA Supplement


With a copy to:

JPMorgan Chase Bank, N.A.

P.O. Box 35308

Newark, New Jersey 07101

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

New York Life Insurance and Annuity Corporation

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

New York Life Insurance and Annuity Corporation

Institutionally Owned Life Insurance Separate Account

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, NY 10010

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-11 to NPA Supplement


With a copy to:

The Bank of New York Mellon

c/o Hare & Co., LLC

US Income

2 Hanson Place

Private placement Dept. 10th Floor

Brooklyn, NY 11217

Allianz Life Insurance Co. of North America

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Protective Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

The Savings Bank Life Insurance Company of Massachusetts

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-12 to NPA Supplement


Jackson National Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

RIMAC Seguros Y Reaseguros

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

HR US INFRA DEBT LP

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

USD IG Infrastructure Debt (Ireland) DAC

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

American Equity Investment Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-13 to NPA Supplement


RGA REINSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Country Life Insurance Co.

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Contemporaneous written confirmation of any electronic funds transfer to the Purchaser shall be sent to the above addresses setting forth (1) the full name, private placement number, interest rate and maturity date of the Notes, (2) allocation of payment between principal, interest, Make-Whole Amount, other premium or any special payment and (3) the name and address of the bank from which such electronic funds transfer was sent.

II. Notices and Communications

All notices and communications, including notices with respect to payments and prepayments, shall be delivered or mailed to:

Teachers Insurance and Annuity Association of America

c/o Nuveen Alternatives Advisors LLC

8500 Andrew Carnegie Blvd

Charlotte, NC 28262

Attention: Global Private Markets

Telephone:      [***]

Facsimile:       [***]

Email:             [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-14 to NPA Supplement


New York Life

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010-1603

Attention: Investment Servicers

                 Private Group

                 2nd Floor

Facsimile:        [***]

Email:              [***]

With a copy to:

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010-1603

Attention: Fixed Income Investors – Structured Products Group

                 2nd Floor

Facsimile:        [***]

Email:              [***]

Attention: Office of General Counsel

                  Investment Section, Room 1016

Facsimile:        [***]

BlackRock Financial Management, Inc.—Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Email: [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-15 to NPA Supplement


With a copy to (which shall not constitute notice):

c/o BlackRock, Inc. – Office of the General Counsel

40 East 52nd Street

New York, NY 10022

Attn: Legal Transactions Team

Email: [***]

Taxpayer Identification Number: [***]

Physical Delivery of Notes:

Teachers Insurance and Annuity Association of America

JPMorgan Chase Bank, N.A.

4 Chase Metrotech Center

3rd Floor

Brooklyn, New York 11245-0001

Attention: Physical Receive Department

For TIAA A/C #G07040

With a copy to (include note, transmittal letter & tracking information):

Email: [***]

Email: [***]

Email: [***]

New York Life Insurance Company

FedEx delivery address

c/o JPMorgan

4 Metro Tech Center

Physical Receive – 3rd Floor

Brooklyn, NY 11245-0001

Ref: NYLIAC BOLI 30C Yield G11003

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-16 to NPA Supplement


Physical delivery via messenger:

c/o JPMorgan

4 Metro Tech Center

Physical Receive – Window 5

Brooklyn, NY 11024-0001

Ref: NYLIAC BOLI 30C Yield G11003

New York Life Insurance and Annuity Corporation

FedEx delivery address

c/o JPMorgan

4 Metro Tech Center

Physical Receive – 3rd Floor

Brooklyn, NY 11245-0001

Ref: NYLIAC BOLI 30C Yield G11003

Physical delivery via messenger:

c/o JPMorgan

4 Metro Tech Center

Physical Receive – Window 5

Brooklyn, NY 11024-0001

Ref: NYLIAC BOLI 30C Yield G11003

New York Life Insurance and Annuity Corporation

Institutionally Owned Life Insurance Separate Account

FedEx delivery address

c/o JPMorgan

4 Metro Tech Center

Physical Receive – 3rd Floor

Brooklyn, NY 11245-0001

Ref: NYLIAC BOLI 30C Yield G11003

Physical delivery via messenger:

c/o JPMorgan

4 Metro Tech Center

Physical Receive – Window 5

Brooklyn, NY 11024-0001

Ref: NYLIAC BOLI 30C Yield G11003

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-17 to NPA Supplement


Hare & Co., LLC

New York Life Insurance Company

c/o The Depository Trust Company

570 Washington Blvd – 5th Floor

Jersey City, NJ 07310

Attention: BNY Mellon/Branch Deposit Department

Account # [***]

Allianz Life Insurance Co. of North America

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

Protective Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

The Savings Bank Life Insurance Company of Massachusetts

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-18 to NPA Supplement


40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

Jackson National Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

RIMAC Seguros Y Reaseguros

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

HR US INFRA DEBT LP

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-19 to NPA Supplement


USD IG Infrastructure Debt (Ireland) DAC

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

American Equity Investment Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

RGA REINSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

Country Life Insurance Co.

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Telephone: [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-20 to NPA Supplement


ANNEX B TO NPA SUPPLEMENT

Managing Member and Financing Funds

 

Managing Member

   Related Financing
Fund
     Jurisdiction      % of Share of Each
Class Owned by
Issuer / Managing
Member
 
        
        
        
        
        
        
        

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex B-1 to NPA Supplement


ANNEX C TO NPA SUPPLEMENT

Project Company Expenses, Scheduled Tax Equity Investor Distributions and Scheduled Managing Member Distributions

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex C-1 to NPA Supplement


ANNEX D TO NPA SUPPLEMENT

Scheduled Host Customer Payments, Scheduled PBI Payments

and Scheduled Hedged SREC Payments

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex D-1 to NPA Supplement


ANNEX E

Aggregate Discounted Solar Asset Balance

and the share represented by the Depositor Conveyed Property

 

     ADSAB
($)
    % of
Total
 

Issuer Managed Assets

   $ [         [     ]% 

Financing Fund Assets (Depositor Conveyed Property)

     [         [     ]% 

Hedged SREC Assets

     [         [     ]% 
  

 

 

   

 

 

 

Aggregate Discounted Solar Asset Balance

   $ [         [     ]% 
  

 

 

   

 

 

 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex E-1 to NPA Supplement


ANNEX F TO NPA SUPPLEMENT

Third-Party Diligence Reports

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex F-1 to NPA Supplement


EXHIBIT D

Opinions

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

D-1


EXHIBIT E

Form of Purchaser Joinder Agreement

                , 20     

This Purchaser Joinder Agreement is dated as of [____], 20[__] and is made by the undersigned (the Additional Purchaser) pursuant to the Note Purchase Agreement, dated as of March 28, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the Note Purchase Agreement), among SUNNOVA RAYS I ISSUER, LLC (the “Issuer”), SUNNOVA RAYS I DEPOSITOR, LLC (the “Depositor”) and SUNNOVA RAYS I MANAGEMENT, LLC (as “Servicer”, as “Manager” and as “Facility Administrator” and, together with the Issuer and Depositor collectively, the “Sunnova Parties”), and the Purchasers party thereto from time to time (the “Purchasers”). Capitalized terms used herein and not defined have the respective meanings assigned to such terms in the Note Purchase Agreement.

As of the date hereof, the Additional Purchaser has agreed to purchase Notes issued by Issuers pursuant to the Note Purchase Agreement in the aggregate principal amount not to exceed the amounts set forth on Schedule A hereto.

The Additional Purchaser hereby acknowledges and agrees that (a) it has received a true, correct and complete copy of the Note Purchase Agreement and the other Transaction Documents, (b) each of the representations and warranties made by the Purchasers in Section 3 of the Note Purchase Agreement are true and correct with respect to the Additional Purchaser and (c) it shall be bound by each of the other provisions of the Note Purchase Agreement and the other Transaction Documents to which the Purchasers are a party as if originally a party thereto or bound thereby as a Purchaser. From and after the date hereof, the Additional Purchaser shall be a “Purchaser” for all purposes under the Note Purchase Agreement and the other Transaction Documents.

All notices and communications, including notices with respect to payments and prepayments, shall be delivered or mailed to the Additional Purchaser at the address set forth on Schedule A hereto. All payments on or in respect of the Notes to the Additional Purchaser shall be made in immediately available funds on the due date by electronic funds transfer to the account and according to the instructions set forth on Schedule A hereto.

[signature page follows]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

E-1


IN WITNESS WHEREOF, the undersigned has caused this Purchaser Joinder Agreement to be duly executed and delivered by its authorized officer as of the date first written above.

 

[ADDITIONAL PURCHASER]
By:  

 

 

Name:

Title:

 

ACKNOWLEDGED AND AGREED TO BY:
SUNNOVA RAYS I ISSUER, LLC
By:  

 

 

Name:

Title:

[SIGNATURE PAGE TO PURCHASE JOINDER AGREEMENT]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


SCHEDULE A TO PURCHASER JOINDER AGREEMENT

INFORMATION RELATING TO

ADDITIONAL PURCHASER

 

Purchaser

  

Maximum Class B Notes to be Purchased

[    ]

[NOTICE ADDRESS]

   [    ]

ABA # [    ]

Account Number: [    ]

Account Name: [    ]

Reference: [    ]

PPN: [    ]

  

Schedule A

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EX-10.2 10 d709190dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

Execution Copy

NOTE PURCHASE AGREEMENT SUPPLEMENT NO. 1

This NOTE PURCHASE AGREEMENT SUPPLEMENT NO. 1, dated as of March 28, 2019, (this “NPA Supplement”), is among SUNNOVA RAYS I ISSUER, LLC (the “Issuer”), SUNNOVA RAYS I DEPOSITOR, LLC (the “Depositor”), SUNNOVA RAYS I MANAGEMENT, LLC (as “Servicer”, as “Manager” and as “Facility Administrator” and, together with the Issuer and Depositor, collectively, the “Sunnova Parties”), and the Purchasers named on Annex A hereto (the “Purchasers”).

Reference is made to (i) the Indenture, dated as of March 28, 2019, among the Issuer and Wilmington Trust, National Association, as indenture trustee (in such capacity, the “Indenture Trustee”), as supplemented by the Indenture Supplement No. 1, dated as of March 28, 2019, (as so supplemented, the “Indenture”), among the Issuer, and the Indenture Trustee, and (ii) the Note Purchase Agreement, dated as of March 28, 2019, (the “Note Purchase Agreement”), among the Sunnova Parties and the Purchasers named therein. Capitalized terms used herein but not defined shall have the meanings set forth in the Indenture or the Note Purchase Agreement, as applicable.

Section 1. Residential Asset Yield Securities Series 2019-1 Notes.

(a) Pursuant to the Indenture, the Issuer shall issue, and the Purchasers shall purchase, on March 28, 2019 (the “Closing Date”) (i) a new Series of Class A Notes designated as the Series 2019-1 Class A Notes (the “Series 2019-1 Class A Notes”) and (ii) a new Series of Class B Notes designated as the Series 2019-1 Class B Notes (the “Series 2019-1 Class B Notes” and, together with the Series 2019-1 Class A Notes, the “Series 2019-1 Notes”).

(b) The parties are entering into this NPA Supplement pursuant to the Note Purchase Agreement to confirm their understanding of the terms of the Series 2019-1 Notes. Except to the extent modified by this NPA Supplement, all terms and conditions of the Note Purchase Agreement are hereby ratified, confirmed and incorporated herein.

(c) Upon satisfaction of the conditions precedent set forth in the Indenture and the Note Purchase Agreement, the Issuer shall sell and the Purchasers shall severally purchase the Series 2019-1 Notes in the principal amounts of each Class as set forth beside its respective name in Annex A hereto. The purchased Series 2019-1 Notes shall be registered in the names and denominations set forth in Annex A hereto.

(d) Immediately after giving effect to the issuance of the Series 2019-1 Notes on the Closing Date, the Outstanding Note Balance for (i) all Class A Notes of all Series is $118,100,000 and (ii) all Class B Notes of all Series is $15,000,000.

(e) The Aggregate Discounted Solar Asset Balance of the Conveyed Property contributed to the Issuer on the related Cut-Off Date is $182,325,909.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

1


Section 2. Purchase, Sale, Payment and Delivery of the Series 2019-1 Notes. The sale and purchase of the Class A Notes and Class B Notes to be purchased by the Purchasers shall occur, subject to the terms and conditions of the Note Purchase Agreement and this NPA Supplement, on the Closing Date at the offices of Baker Botts L.L.P., 910 Louisiana St., Houston, TX 77002 at 10:00 a.m. Eastern time. On the Closing Date, the Issuer will deliver to each Purchaser (a) the Series 2019-1 Class A Notes to be purchased by such Purchaser in the form of a single Class A Note (or such greater number of Class A Notes in denominations of at least $500,000 and integral multiples of $1.00 in excess of thereof as such Purchaser may request or such other amounts as set forth in the applicable Indenture Supplement) or (b) the Series 2019-1 Class B Notes to be purchased by such Purchaser in the form of a single Class B Note (or such greater number of Class B Notes in denominations of at least $1,000,000 and integral multiples of $1.00 in excess of thereof as such Purchaser may request or such other amounts as set forth in the applicable Indenture Supplement), as applicable, in each case, dated as of the Closing Date and registered in the applicable Purchaser’s name (or in the name of its nominee as set forth in Annex A hereto), against delivery by such Purchaser to the Issuer or its order of immediately available funds in the amount of the purchase price therefor as set forth in this NPA Supplement. If on the Closing Date the Issuer shall fail to tender such Notes to the Purchasers as provided above in this NPA Supplement, or any of the conditions specified in Section 5 of the Note Purchase Agreement with respect to such Notes or in this NPA Supplement shall not have been fulfilled to each Purchaser’s satisfaction or waived by such Purchaser, each Purchaser shall, at its election, be relieved of all further obligations under the Note Purchase Agreement as supplemented by this NPA Supplement with respect to such Notes without thereby waiving any rights such Purchaser may have by reason of any of the conditions specified in Section 5 of the Note Purchase Agreement or this NPA Supplement not having been fulfilled to such Purchaser’s satisfaction or such failure by the Issuer to tender such Notes. Attached hereto as Annex A to this NPA Supplement is a schedule (including all material assumptions) of the Scheduled Outstanding Note Balance for each subsequent Payment Date for (A) the Series 2019-1 Class A Notes and Series 2019-1 Class B Notes and (B) the Class A Notes and Class B Notes of all Series. Attached hereto as Annex B to this NPA Supplement is a schedule of Managing Members and Financing Funds. Attached hereto as Annex C to this NPA Supplement is a schedule of (A) the Scheduled Financing Fund Expenses, (B) the Scheduled Tax Equity Investor Distributions and (C) the Scheduled Managing Member Distributions, in each case during each calendar year from and including the year of such Closing Date until the Final Maturity Date and assuming that the Purchase Option under each Financing Fund Documents is exercised at the respective Purchase Option Call Date and that no Distribution Variations occur. Attached hereto as Annex D to this NPA Supplement is a schedule of the aggregate of Scheduled Host Customer Payments (excluding past due amounts, if any) and Scheduled PBI Payments for all Host Customer Solar Assets, the aggregate of Scheduled Hedged SREC Payments for all Hedged SREC Solar Assets commencing as of the applicable Cut-Off Date for each Payment Date. Attached hereto as Annex E to this NPA Supplement is a schedule of the Aggregate Discounted Solar Asset Balance of the Conveyed Property conveyed on such Closing Date. Attached hereto as Annex F to this NPA Supplement a schedule of Third-Party Diligence Reports.

Section 3. Representations and Warranties. The Sunnova Parties and the Purchasers hereby reaffirm that each of their respective representations and warranties contained in the Note Purchase Agreement and the other Transaction Documents are true and correct in all material respects (or, if already limited by materiality qualifiers, are true and correct in all respects) as of the date hereof (except to the extent expressly made as of an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date).

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

2


Very truly yours,
SUNNOVA RAYS I ISSUER, LLC,
a Delaware limited liability company, as Issuer
By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   Senior Vice President, Head of Finance
  and Treasurer

 

SUNNOVA RAYS I DEPOSITOR, LLC
a Delaware limited liability company, as Depositor
By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   Senior Vice President, Head of Finance
 

and Treasurer

 

SUNNOVA RAYS I MANAGEMENT, LLC
a Delaware limited liability company, as Servicer,
as Manager and as Facility Administrator
By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   Senior Vice President, Head of Finance
  and Treasurer

Signature Page to NPA Supplement No. 1

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


The foregoing NPA Supplement is hereby confirmed and accepted:

 

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
a New York domiciled life insurance company
By:   Nuveen Alternative Advisors LLC,
  a Delaware limited liability company,
as Investment Manager

 

By:   /s/ Chris Miller
  Name: Chris Miller
  Title: Director

Signature Page to NPA Supplement No. 1

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


NEW YORK LIFE INSURANCE COMPANY,
By: NYL Investors LLC, as Investment Manager
By:   /s/ Scott R. Seewald
  Name: Scott R. Seewald
  Title: Vice President

 

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,
By: NYL Investors LLC, as Investment Manager
By:   /s/ Scott R. Seewald
  Name: Scott R. Seewald
  Title: Vice President

 

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT,
By: NYL Investors LLC, as Investment Manager
By:   /s/ Scott R. Seewald
  Name: Scott R. Seewald
  Title: Vice President

THE BANK OF NEW YORK MELLON, A BANKING CORPORATION ORGANIZED UNDER THE LAWS OF NEW YORK, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE UNDER THAT CERTAIN TRUST AGREEMENT DATES AS OF JULY 1ST, 2015 BETWEEN NEW YORK LIFE INSURANCE COMPANY, AS GRANTOR, JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A.), AS BENEFICIARY, JOHN HANCOCK LIFE INSURANCE COMPANY OF NEW YORK, AS BENEFICIARY, AND THE BANK OF NEW YORK MELLON, AS TRUSTEE

By: New York Life Insurance Company, as attorney-in-fact

 

By:   /s/ Scott R. Seewald
  Name: Scott R. Seewald
  Title: Vice President

Signature Page to NPA Supplement No. 1

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ALLIANZ LIFE INSURANCE CO. OF NORTH AMERICA,
By: BlackRock Financial Management, Inc.,
as Investment Manager
By:   /s/ James Anderson
  Name: James Anderson
  Title: Director

 

PROTECTIVE LIFE INSURANCE COMPANY,
By: BlackRock Financial Management, Inc.,
as Investment Manager
By:   /s/ James Anderson
  Name: James Anderson
  Title: Director

 

THE SAVINGS BANK LIFE INSURANCE COMPANY
OF MASSACHUSETTS,
By: BlackRock Financial Management, Inc.,
as Investment Manager
By:   /s/ James Anderson
  Name: James Anderson
  Title: Director

 

JACKSON NATIONAL LIFE INSURANCE COMPANY,
By: BlackRock Financial Management, Inc.,
as Investment Manager
By:   /s/ James Anderson
  Name: James Anderson
  Title: Director

Signature Page to NPA Supplement No. 1

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


RIMAC SEGUROS Y REASEGUROS,

By: BlackRock Financial Management, Inc.,

as Investment Manager

By:   /s/ James Anderson
  Name: James Anderson
  Title: Director
HR US INFRA DEBT LP,

By: BlackRock Financial Management, Inc.,

as Investment Manager

HR US INFRA DEBT LP,
By: HR US Infra Debt (GenPar), LLC, its general partner

By: BlackRock Financial Management, Inc.,

as Investment Manager

By:   /s/ Jeetu Balchandani
  Name: Jeetu Balchandani
  Title: Managing Directo
USD IG INFRASTRUCTURE DEBT (IRELAND) DAC,

By: BlackRock Financial Management, Inc.,

as Investment Manager

By:   /s/ Jeetu Balchandani
  Name: Jeetu Balchandani
  Title: Managing Director

AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY,

 

By: BlackRock Financial Management, Inc.,

as Investment Manager

By:   /s/ James Anderson
  Name: James Anderson
  Title: Director

Signature Page to NPA Supplement No. 1

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


RGA REINSURANCE COMPANY,

By: BlackRock Financial Management, Inc.,

as Investment Manager

By:   /s/ James Anderson
  Name: James Anderson
  Title: Director
COUNTRY LIFE INSURANCE CO.,

By: BlackRock Financial Management, Inc.,

as Investment Manager

By:   /s/ James Anderson
  Name: James Anderson
  Title: Director

Signature Page to NPA Supplement No. 1

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ANNEX A

 

Name and Address

   Series     Principal Amount of Class
A Notes
    Class A Notes
Issue Price
    Principal Amount of
Class B Notes
    Class B Notes Issue
Price
    Aggregate Purchase
Price
 

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA

730 Third Avenue New York,

New York 10017

     2019-1     $ [***]       100     —         93.50000   $ [***]  

NEW YORK LIFE INSURANCE COMPANY

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208 New York,

New York 10010-0603

     2019-1     $ [***]       100     —         93.50000   $ [***]  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-0603

     2019-1     $ [***]       100     —         93.50000   $ [***]  

NEW YORK LIFE
INSURANCE AND ANNUITY CORPORATION

INSTITUTIONALLY OWNED

LIFE INSURANCE SEPARATE

ACCOUNT (BOLI 30C)

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room

208 New York, New

York 10010-0603

     2019-1     $ [***]       100     —         93.50000   $ [***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-1 to NPA Supplement


HARE & CO., LLC

On behalf of: NEW YORK LIFE INSURANCE COMPANY

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, NY 10010

       2019-1        $ [***]          100      —            93.50000    $ [***]  

With a copy to:

The Bank of New York Mellon

c/o Hare & Co., LLC US Income

2 Hanson Place

Private placement Dept. 10th Floor

Brooklyn, NY 11217

                         

ALLIANZ LIFE INSURANCE CO. OF NORTH AMERICA

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —            93.50000    $
[***]
 

PROTECTIVE LIFE INSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —            93.50000    $ [***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-2 to NPA Supplement


THE SAVINGS BANK LIFE INSURANCE COMPANY OF MASSACHUSETTS

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —            93.50000    $ [***]  

JACKSON NATIONAL LIFE INSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —            93.50000    $ [***]  

RIMAC SEGUROS Y REASEGUROS

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —            93.50000    $ [***]  

HR US INFRA DEBT LP

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —            93.50000    $ [***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-3 to NPA Supplement


USD IG INFRASTRUCTURE DEBT (IRELAND) DAC

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —         93.50000    $ [***]  

AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1        $ [***]          100      —         93.50000    $ [***]  

HARE & CO., LLC

 

On behalf of: RGA REINSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

 

With a copy to:

Hare & Co., LLC

The Bank of New York Mellon Corp

Attn: P&I Department

PO BOX 19266

Newark, NJ 07195

       2019-1        $ [***]          100    $ [ ***]      93.50000    $ [***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-4 to NPA Supplement


COUNTRY LIFE INSURANCE CO.

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

       2019-1          —            100    $ [***]          93.50000    $ [***]  

Payment and Notice Instructions

I. Payments

All payments on or in respect of the Notes to the Purchasers listed above shall be made in immediately available funds on the due date by electronic funds transfer, to:

JPMorgan Chase Bank, N.A.

ABA No. [***]

Account No. [***]

Account Name: [***]

For Further Credit to the Account Number: [***]

JPMorgan Chase Bank

New York, New York 10019

ABA No. [***]

Swift Code: [***]

Credit: [***]

General Account No. [***]

JPMorgan Chase Bank

New York, New York 10019

ABA No. [***]

Swift Code: [***]

Credit: [***]

General Account No. [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-5 to NPA Supplement


JPMorgan Chase Bank

New York, New York 10019

ABA No. [***]

Swift Code: [***]

Credit: [***]

General Account No. [***]

The Bank of New York Mellon

ABA No. [***]

Swift Code: [***]

[***]

f/f/c [***]

The Bank of New York Mellon

ABA No. [***]

Account No. [***]

Account Name: [***]

The Bank of New York Mellon

ABA No. [***]

Account No. [***]

Account Name: [***]

State Street Bank and Trust Company, N.A., New York

ABA No. [***]

Account No. [***]

Account Name: [***]

The Bank of New York Mellon

ABA No. [***]

Account No. [***]

Account Name: [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-6 to NPA Supplement


Citibank N.A., New York

ABA No. [***]

Account No. [***]

Account Name: [***]

The Bank of New York Mellon

ABA No. [***]

Account No. [***]

Account Name: [***]

The Bank of New York Mellon

ABA No. [***]

Account No. [***]

FFC Account No. [***]

FFC Account Name: [***]

STATE STREET BANK AND TRUST COMPANY, N.A., NEW YORK

ABA No. [***]

Account No. [***]

Account Name: [***]

Registered Holder: Hare & Co., LLC

The Bank of New York Mellon Corp

ABA No. [***]

Beneficiary Account: [***]

Reference: Sunnova RAYS I Issuer, LLC, PPN: 85236# AA1, $[***] principal amount, 4.95% interest rate

Registered Holder: Hare & Co., LLC

The Bank of New York Mellon Corp

ABA No. [***]

Beneficiary Account: [***]

Reference: Sunnova RAYS I Issuer, LLC, PPN: 85236# AB9, $[***] principal amount, 6.35% interest rate

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-7 to NPA Supplement


The Northern Trust Company

ABA No. [***]

Account No. [***]

Account Name: [***]

II. Payment Notices

All notices with respect to payments and prepayments of the Notes shall be sent to:

Teachers Insurance and Annuity Association of America

730 Third Avenue

New York, New York 10017

Attention: Securities Accounting Division

Phone: (212) 916-5504

Facsimile: (212) 916-4699

With a copy to:

JPMorgan Chase Bank, N.A.

P.O. Box 35308

Newark, New Jersey 07101

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-1603

with a copy sent electronically to: TraditionalPVtOps@nylim.com

New York Life Insurance and Annuity Corporation

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-1603

with a copy sent electronically to: TraditionalPVtOps@nylim.com

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-8 to NPA Supplement


New York Life Insurance and Annuity Corporation

Institutionally Owned Life Insurance Separate Account

c/o NYL Investors LLC

51 Madison Ave

2nd Floor, Room 208

New York, New York 10010-1603

with a copy sent electronically to: TraditionalPVtOps@nylim.com

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, NY 10010

with a copy sent electronically to: TraditionalPVtOps@nylim.com

With a copy to:

The Bank of New York Mellon

c/o Hare & Co., LLC

US Income

2 Hanson Place

Private placement Dept. 10th Floor

Brooklyn, NY 11217

Allianz Life Insurance Co. of North America

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Protective Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-9 to NPA Supplement


The Savings Bank Life Insurance Company of Massachusetts

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Jackson National Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

RIMAC Seguros Y Reaseguros

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

HR US INFRA DEBT LP

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

USD IG Infrastructure Debt (Ireland) DAC

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-10 to NPA Supplement


American Equity Investment Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

RGA REINSURANCE COMPANY

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

With a copy to:

Hare & Co., LLC

The Bank of New York Mellon

Attn: P&I Department

PO BOX 192966

Newark, NJ 07195

with a copy sent electronically to SecOps@rgare.com

Country Life Insurance Co.

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Contemporaneous written confirmation of any electronic funds transfer to the Purchaser shall be sent to the above addresses setting forth (1) the full name, private placement number, interest rate and maturity date of the Notes, (2) allocation of payment between principal, interest, Make-Whole Amount, other premium or any special payment and (3) the name and address of the bank from which such electronic funds transfer was sent.

III. Notices and Communications

All notices and communications, including notices with respect to payments and prepayments, shall be delivered or mailed to:

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-11 to NPA Supplement


Teachers Insurance and Annuity Association of America

c/o Nuveen Alternatives Advisors LLC

8500 Andrew Carnegie Blvd

Charlotte, NC 28262

Attention: Global Private Markets

Telephone:    [***]

[***]

Facsimile:     [***]

Email:           [***]

New York Life

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010-1603

Attention: Investment Servicers

Private Group

2nd Floor

Facsimile:     [***]

Email:           [***]

With a copy to:

c/o NYL Investors LLC

51 Madison Avenue

2nd Floor, Room 208

New York, New York 10010-1603

Attention: Fixed Income Investors – Structured Products Group

2nd Floor

Facsimile:     [***]

Email:           [***]

Attention: Office of General Counsel

   Investment Section, Room 1016

Facsimile:     [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-12 to NPA Supplement


BlackRock Financial Management, Inc.—Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: [***]

Email: [***]

With a copy to (which shall not constitute notice):

c/o BlackRock, Inc. – Office of the General Counsel

40 East 52nd Street

New York, NY 10022

Attn: Legal Transactions Team

Email: [***]

Taxpayer Identification Number: [***]

Physical Delivery of Notes:

Teachers Insurance and Annuity Association of America

JPMorgan Chase Bank, N.A.

4 Chase Metrotech Center

3rd Floor

Brooklyn, New York 11245-0001

Attention: Physical Receive Department

For TIAA A/C #G07040

With a copy to (include note, transmittal letter & tracking information):

Email: [***]

Email: [***]

Email: [***]

New York Life Insurance Company

FedEx delivery address

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-13 to NPA Supplement


c/o JPMorgan

4 Metro Tech Center

Physical Receive – 3rd Floor

Brooklyn, NY 11245-0001

Tele: [***]

Ref: New York Life Insurance Company G51405

Physical delivery via messenger:

c/o JPMorgan

4 Metro Tech Center

Physical Receive – Window 5

Brooklyn, NY 11024-0001

Tele: [***]

(Willoughby Street side of the building)

Ref: New York Life Insurance Company G51405

New York Life Insurance and Annuity Corporation

FedEx delivery address

c/o JPMorgan

4 Metro Tech Center

Physical Receive – 3rd Floor

Brooklyn, NY 11245-0001

Tele: [***]

Ref: New York Life Insurance and Annuity Corporation G51410

Physical delivery via messenger:

c/o JPMorgan

4 Metro Tech Center

Physical Receive – Window 5

Brooklyn, NY 11024-0001

Tele: [***]

(Willoughby Street side of the building)

Ref: New York Life Insurance and Annuity Corporation G51410

New York Life Insurance and Annuity Corporation

Institutionally Owned Life Insurance Separate Account (BOLI 30C)

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-14 to NPA Supplement


FedEx delivery address

c/o JPMorgan

4 Metro Tech Center

Physical Receive – 3rd Floor

Brooklyn, NY 11245-0001

Tele: [***]

Ref: NYLIAC BOLI 30C Yield G11003

Physical delivery via messenger:

c/o JPMorgan

4 Metro Tech Center

Physical Receive – Window 5

Brooklyn, NY 11024-0001

Tele: [***]

(Willoughby Street side of the building)

Ref: NYLIAC BOLI 30C Yield G11003

Hare & Co., LLC

New York Life Insurance Company

c/o The Depository Trust Company

570 Washington Blvd – 5th Floor

Jersey City, NJ 07310

Attention: BNY Mellon/Branch Deposit Department

Account # 491610 New York Life JH Close Private 1804

Allianz Life Insurance Co. of North America

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

Protective Life Insurance Company

c/o BlackRock Financial Management, Inc.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-15 to NPA Supplement


Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

The Savings Bank Life Insurance Company of Massachusetts

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

Jackson National Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

RIMAC Seguros Y Reaseguros

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

HR US INFRA DEBT LP

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-16 to NPA Supplement


New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

USD IG Infrastructure Debt (Ireland) DAC

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

American Equity Investment Life Insurance Company

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

RGA REINSURANCE COMPANY

The Depository Trust Company

570 Washington Blvd – 5th floor

Jersey City, NJ 07310

Reference: PPN 85236#AA1 & A/C# 477019 (RGA REINSURANCE COMPANY)

RGA REINSURANCE COMPANY

The Depository Trust Company

570 Washington Blvd – 5th floor

Jersey City, NJ 07310

Reference: PPN 85236#AB9 & A/C# 477019 (RGA REINSURANCE COMPANY)

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-17 to NPA Supplement


Country Life Insurance Co.

c/o BlackRock Financial Management, Inc.

Infrastructure Debt Group

40 East 52nd Street

New York, NY 10022

Attention: Kaidi Huang, Wendy Myers and Dale Fieffe

Telephone: [***]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex A-18 to NPA Supplement


ANNEX B

Managing Member and Financing Funds

 

Managing Member

  

Related Financing Fund

  

Jurisdiction

  

% of Share of Each Class

Owned by Issuer /
Managing Member

Sunnova TEP I Manager, LLC    Sunnova TEP I, LLC    Delaware    0% of Class A Units; 100% of Class B Units

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex B-1 to NPA Supplement


ANNEX C

Scheduled Financing Fund Expenses, Scheduled Tax Equity Investor Distributions and

Scheduled Managing Member Distributions

 

Payment Date

   Project Company
Expenses
    Scheduled Tax Equity
Investor Distributions
    Scheduled Managing
Member Distributions
 

Closing Date

      

April-19

     $ [***]      $ [***]      $ [***] 

July-19

     $ [***]      $ [***]      $ [***] 

October-19

     $ [***]      $ [***]      $ [***] 

January-20

     $ [***]      $ [***]      $ [***] 

April-20

     $ [***]      $ [***]      $ [***] 

July-20

     $ [***]      $ [***]      $ [***] 

October-20

     $ [***]      $ [***]      $ [***] 

January-21

     $ [***]      $ [***]      $ [***] 

April-21

     $ [***]      $ [***]      $ [***] 

July-21

     $ [***]      $ [***]      $ [***] 

October-21

     $ [***]      $ [***]      $ [***] 

January-22

     $ [***]      $ [***]      $ [***] 

April-22

     $ [***]      $ [***]      $ [***] 

July-22

     $ [***]      $ [***]      $ [***] 

October-22

     $ [***]      $ [***]      $ [***] 

January-23

     $ [***]      $ [***]      $ [***] 

April-23

     $ [***]      $ [***]      $ [***] 

July-23

     $ [***]      $ [***]      $ [***] 

October-23

     $ [***]      $ [***]      $ [***] 

January-24

     $ [***]      $ [***]      $ [***] 

April-24

     $ [***]      $ [***]      $ [***] 

July-24

     $ [***]      $ [***]      $ [***] 

October-24

     $ [***]      $ [***]      $ [***] 

January-25

     $ [***]      $ [***]      $ [***] 

April-25

     $ [***]      $ [***]      $ [***] 

July-25

     $ [***]      $ [***]      $ [***] 

October-25

     $ [***]      $ [***]      $ [***] 

January-26

     $ [***]      $ [***]      $ [***] 

April-26

     $ [***]      $ [***]      $ [***] 

July-26

     $ [***]      $ [***]      $ [***] 

October-26

     $ [***]      $ [***]      $ [***] 

January-27

     $ [***]      $ [***]      $ [***] 

April-27

     $ [***]      $ [***]      $ [***] 

July-27

     $ [***]      $ [***]      $ [***] 

October-27

     $ [***]      $ [***]      $ [***] 

January-28

     $ [***]      $ [***]      $ [***] 

April-28

     $ [***]      $ [***]      $ [***] 

July-28

     $ [***]      $ [***]      $ [***] 

October-28

     $ [***]      $ [***]      $ [***] 

January-29

     $ [***]      $ [***]      $ [***] 

April-29

     $ [***]      $ [***]      $ [***] 

July-29

     $ [***]      $ [***]      $ [***] 

October-29

     $ [***]      $ [***]      $ [***] 

January-30

     $ [***]      $ [***]      $ [***] 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex C-1 to NPA Supplement


April-30

   $ [ ***]    $ [ ***]    $ [ ***] 

July-30

   $ [ ***]    $ [ ***]    $ [ ***] 

October-30

   $ [ ***]    $ [ ***]    $ [ ***] 

January-31

   $ [ ***]    $ [ ***]    $ [ ***] 

April-31

   $ [ ***]    $ [ ***]    $ [ ***] 

July-31

   $ [ ***]    $ [ ***]    $ [ ***] 

October-31

   $ [ ***]    $ [ ***]    $ [ ***] 

January-32

   $ [ ***]    $ [ ***]    $ [ ***] 

April-32

   $ [ ***]    $ [ ***]    $ [ ***] 

July-32

   $ [ ***]    $ [ ***]    $ [ ***] 

October-32

   $ [ ***]    $ [ ***]    $ [ ***] 

January-33

   $ [ ***]    $ [ ***]    $ [ ***] 

April-33

   $ [ ***]    $ [ ***]    $ [ ***] 

July-33

   $ [ ***]    $ [ ***]    $ [ ***] 

October-33

   $ [ ***]    $ [ ***]    $ [ ***] 

January-34

   $ [ ***]    $ [ ***]    $ [ ***] 

April-34

   $ [ ***]    $ [ ***]    $ [ ***] 

July-34

   $ [ ***]    $ [ ***]    $ [ ***] 

October-34

   $ [ ***]    $ [ ***]    $ [ ***] 

January-35

   $ [ ***]    $ [ ***]    $ [ ***] 

April-35

   $ [ ***]    $ [ ***]    $ [ ***] 

July-35

   $ [ ***]    $ [ ***]    $ [ ***] 

October-35

   $ [ ***]    $ [ ***]    $ [ ***] 

January-36

   $ [ ***]    $ [ ***]    $ [ ***] 

April-36

   $ [ ***]    $ [ ***]    $ [ ***] 

July-36

   $ [ ***]    $ [ ***]    $ [ ***] 

October-36

   $ [ ***]    $ [ ***]    $ [ ***] 

January-37

   $ [ ***]    $ [ ***]    $ [ ***] 

April-37

   $ [ ***]    $ [ ***]    $ [ ***] 

July-37

   $ [ ***]    $ [ ***]    $ [ ***] 

October-37

   $ [ ***]    $ [ ***]    $ [ ***] 

January-38

   $ [ ***]    $ [ ***]    $ [ ***] 

April-38

   $ [ ***]    $ [ ***]    $ [ ***] 

July-38

   $ [ ***]    $ [ ***]    $ [ ***] 

October-38

   $ [ ***]    $ [ ***]    $ [ ***] 

January-39

   $ [ ***]    $ [ ***]    $ [ ***] 

April-39

   $ [ ***]    $ [ ***]    $ [ ***] 

July-39

   $ [ ***]    $ [ ***]    $ [ ***] 

October-39

   $ [ ***]    $ [ ***]    $ [ ***] 

January-40

   $ [ ***]    $ [ ***]    $ [ ***] 

April-40

   $ [ ***]    $ [ ***]    $ [ ***] 

July-40

   $ [ ***]    $ [ ***]    $ [ ***] 

October-40

   $ [ ***]    $ [ ***]    $ [ ***] 

January-41

   $ [ ***]    $ [ ***]    $ [ ***] 

April-41

   $ [ ***]    $ [ ***]    $ [ ***] 

July-41

   $ [ ***]    $ [ ***]    $ [ ***] 

October-41

   $ [ ***]    $ [ ***]    $ [ ***] 

January-42

   $ [ ***]    $ [ ***]    $ [ ***] 

April-42

   $ [ ***]    $ [ ***]    $ [ ***] 

July-42

   $ [ ***]    $ [ ***]    $ [ ***] 

October-42

   $ [ ***]    $ [ ***]    $ [ ***] 

January-43

   $ [ ***]    $ [ ***]    $ [ ***] 

April-43

   $ [ ***]    $ [ ***]    $ [ ***] 

July-43

   $ [ ***]    $ [ ***]    $ [ ***] 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex C-2 to NPA Supplement


ANNEX D

Scheduled Host Customer Payments, Scheduled PBI Payments and Scheduled Hedged SREC Payments

 

Payment Date

   Scheduled Host
Customer
Payments
    Scheduled
Hedged SREC
Payments
    Scheduled PBI
Payments
    Aggregate
Scheduled
Payments
 

Closing Date

     $ [***]      $ [***]      $ [***]      $ [***] 

April-19

     $ [***]      $ [***]      $ [***]      $ [***] 

July-19

     $ [***]      $ [***]      $ [***]      $ [***] 

October-19

     $ [***]      $ [***]      $ [***]      $ [***] 

January-20

     $ [***]      $ [***]      $ [***]      $ [***] 

April-20

     $ [***]      $ [***]      $ [***]      $ [***] 

July-20

     $ [***]      $ [***]      $ [***]      $ [***] 

October-20

     $ [***]      $ [***]      $ [***]      $ [***] 

January-21

     $ [***]      $ [***]      $ [***]      $ [***] 

April-21

     $ [***]      $ [***]      $ [***]      $ [***] 

July-21

     $ [***]      $ [***]      $ [***]      $ [***] 

October-21

     $ [***]      $ [***]      $ [***]      $ [***] 

January-22

     $ [***]      $ [***]      $ [***]      $ [***] 

April-22

     $ [***]      $ [***]      $ [***]      $ [***] 

July-22

     $ [***]      $ [***]      $ [***]      $ [***] 

October-22

     $ [***]      $ [***]      $ [***]      $ [***] 

January-23

     $ [***]      $ [***]      $ [***]      $ [***] 

April-23

     $ [***]      $ [***]      $ [***]      $ [***] 

July-23

     $ [***]      $ [***]      $ [***]      $ [***] 

October-23

     $ [***]      $ [***]      $ [***]      $ [***] 

January-24

     $ [***]      $ [***]      $ [***]      $ [***] 

April-24

     $ [***]      $ [***]      $ [***]      $ [***] 

July-24

     $ [***]      $ [***]      $ [***]      $ [***] 

October-24

     $ [***]      $ [***]      $ [***]      $ [***] 

January-25

     $ [***]      $ [***]      $ [***]      $ [***] 

April-25

     $ [***]      $ [***]      $ [***]      $ [***] 

July-25

     $ [***]      $ [***]      $ [***]      $ [***] 

October-25

     $ [***]      $ [***]      $ [***]      $ [***] 

January-26

     $ [***]      $ [***]      $ [***]      $ [***] 

April-26

     $ [***]      $ [***]      $ [***]      $ [***] 

July-26

     $ [***]      $ [***]      $ [***]      $ [***] 

October-26

     $ [***]      $ [***]      $ [***]      $ [***] 

January-27

     $ [***]      $ [***]      $ [***]      $ [***] 

April-27

     $ [***]      $ [***]      $ [***]      $ [***] 

July-27

     $ [***]      $ [***]      $ [***]      $ [***] 

October-27

     $ [***]      $ [***]      $ [***]      $ [***] 

January-28

     $ [***]      $ [***]      $ [***]      $ [***] 

April-28

     $ [***]      $ [***]      $ [***]      $ [***] 

July-28

     $ [***]      $ [***]      $ [***]      $ [***] 

October-28

     $ [***]      $ [***]      $ [***]      $ [***] 

January-29

     $ [***]      $ [***]      $ [***]      $ [***] 

April-29

     $ [***]      $ [***]      $ [***]      $ [***] 

July-29

     $ [***]      $ [***]      $ [***]      $ [***] 

October-29

     $ [***]      $ [***]      $ [***]      $ [***] 

January-30

     $ [***]      $ [***]      $ [***]      $ [***] 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex D-1 to NPA Supplement


April-30

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-30

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-30

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-31

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-31

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-31

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-31

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-32

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-32

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-32

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-32

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-33

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-33

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-33

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-33

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-34

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-34

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-34

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-34

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-35

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-35

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-35

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-35

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-36

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-36

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-36

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-36

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-37

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-37

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-37

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-37

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-38

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-38

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-38

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-38

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-39

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-39

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-39

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-39

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-40

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-40

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-40

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-40

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-41

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-41

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-41

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-41

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-42

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-42

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-42

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-42

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-43

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-43

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex D-2 to NPA Supplement


July-43

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

October-43

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

January-44

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

April-44

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

July-44

   $ [ ***]    $ [ ***]    $ [ ***]    $ [ ***] 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex D-3 to NPA Supplement


ANNEX E

Aggregate Discounted Solar Asset Balance

and the share represented by the Depositor Conveyed Property

 

     ADSAB ($)      % of Total  

Issuer Managed Assets

   $ [***]        [***]

Financing Fund Assets (Depositor Conveyed Property)

   $ [***]        [***]

Hedged SREC Assets

   $ [***]        [***]
  

 

 

    

 

 

 

Aggregate Discounted Solar Asset Balance

   $ 182,325,909        100.0
  

 

 

    

 

 

 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex E-1 to NPA Supplement


ANNEX F

Third-Party Diligence Reports

 

1.

Black& Veatch Management Consulting, LLC

 

2.

Ernst & Young LLP

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

Annex F-1 to NPA Supplement

EX-10.4 11 d709190dex104.htm EX-10.4 EX-10.4

Exhibit 10.4

EXECUTION VERSION

AMENDED AND RESTATED CREDIT AGREEMENT

among

SUNNOVA ASSET PORTFOLIO 4, LLC,

and

SUNNOVA LEASE VEHICLE 3-HI, LLC

as Borrowers

THE LENDERS FROM TIME TO TIME PARTY HERETO

and

TEXAS CAPITAL BANK, NATIONAL ASSOCIATION,

as Administrative Agent,

Sole Lead Arranger and Sole Book Runner

and

LEGACYTEXAS BANK,

as Documentation Agent

DATED AS OF JUNE 28, 2019

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


TABLE OF CONTENTS

 

 

              Page  

ARTICLE 1 DEFINITIONS

     1  
 

Section 1.1

  

Definitions

     1  
 

Section 1.2

  

Accounting Matters

     29  
 

Section 1.3

  

ERISA Matters

     29  
 

Section 1.4

  

Other Definitional Provisions

     30  
 

Section 1.5

  

Interpretative Provision

     30  
 

Section 1.6

  

Times of Day

     30  
 

Section 1.7

  

Other Loan Documents

     30  
 

Section 1.8

  

Divisions

     30  

ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS

     31  
 

Section 2.1

  

The Loans

     31  
 

Section 2.2

  

Fees

     32  
 

Section 2.3

  

Payments Generally; Administrative Agent’s Clawback

     32  
 

Section 2.4

  

Evidence of Debt

     33  
 

Section 2.5

  

Interest; Payment Terms

     34  
 

Section 2.6

  

Prepayments

     35  

ARTICLE 3 TAXES, YIELD PROTECTION AND INDEMNITY

     37  
 

Section 3.1

  

Increased Costs

     37  
 

Section 3.2

  

Illegality

     38  
 

Section 3.3

  

Inability to Determine Rates

     39  
 

Section 3.4

  

Taxes

     40  
 

Section 3.5

  

Compensation for Losses

     44  
 

Section 3.6

  

Mitigation of Obligations; Replacement of Lenders

     45  
 

Section 3.7

  

Survival

     46  

ARTICLE 4 SECURITY

     46  
 

Section 4.1

  

Collateral

     46  
 

Section 4.2

  

Setoff

     46  
 

Section 4.3

  

Authorization to File Financing Statements

     47  

ARTICLE 5 CONDITIONS PRECEDENT

     47  
 

Section 5.1

  

Closing Date

     47  

ARTICLE 6 REPRESENTATIONS AND WARRANTIES

     50  
 

Section 6.1

  

Entity Existence

     50  
 

Section 6.2

  

Financial Statements; Etc

     50  
 

Section 6.3

  

Action; No Breach

     50  
 

Section 6.4

  

Operation of Business

     50  
 

Section 6.5

  

Litigation and Judgments

     50  
 

Section 6.6

  

Rights in Properties; Liens

     51  
 

Section 6.7

  

Enforceability

     51  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

i


 

Section 6.8

  

Approvals

     51  
 

Section 6.9

  

Taxes

     51  
 

Section 6.10

  

Use of Proceeds; Margin Securities

     51  
 

Section 6.11

  

ERISA

     52  
 

Section 6.12

  

Disclosure

     52  
 

Section 6.13

  

Subsidiaries

     52  
 

Section 6.14

  

Agreements

     52  
 

Section 6.15

  

Compliance with Laws

     52  
 

Section 6.16

  

Regulated Entities

     53  
 

Section 6.17

  

Environmental Matters

     53  
 

Section 6.18

  

Intellectual Property

     54  
 

Section 6.19

  

Anti-Corruption Laws; Sanctions; Etc.

     54  
 

Section 6.20

  

Patriot Act

     54  
 

Section 6.21

  

Insurance

     54  
 

Section 6.22

  

Solvency

     54  
 

Section 6.23

  

Security Documents

     54  
 

Section 6.24

  

Businesses

     55  
 

Section 6.25

  

Labor Matters

     55  
 

Section 6.26

  

Common Enterprise

     55  
 

Section 6.27

  

Inventory

     55  

ARTICLE 7 AFFIRMATIVE COVENANTS

     55  
 

Section 7.1

  

Reporting Requirements

     55  
 

Section 7.2

  

Maintenance of Existence; Conduct of Business

     59  
 

Section 7.3

  

Maintenance of Properties

     59  
 

Section 7.4

  

Taxes and Claims

     59  
 

Section 7.5

  

Insurance

     59  
 

Section 7.6

  

Inspection Rights

     60  
 

Section 7.7

  

Keeping Books and Records

     60  
 

Section 7.8

  

Compliance with Laws

     60  
 

Section 7.9

  

Compliance with Agreements

     61  
 

Section 7.10

  

Further Assurances

     61  
 

Section 7.11

  

ERISA

     61  
 

Section 7.12

  

Depository Relationship

     61  
 

Section 7.13

  

Subsidiaries

     61  
 

Section 7.14

  

Interest Rate Protection

     61  
 

Section 7.15

  

Reserved

     62  
 

Section 7.16

  

Separateness

     62  
 

Section 7.17

  

Lockbox

     62  
 

Section 7.18

  

Backup Servicing Provider

     64  
 

Section 7.19

  

Permits

     64  

ARTICLE 8 NEGATIVE COVENANTS

     64  
 

Section 8.1

  

Debt

     64  
 

Section 8.2

  

Limitation on Liens

     64  
 

Section 8.3

  

Mergers, Etc

     65  
 

Section 8.4

  

Restricted Payments

     65  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

ii


 

Section 8.5

  

Loans and Investments

     66  
 

Section 8.6

  

Limitation on Issuance of Equity

     66  
 

Section 8.7

  

Transactions With Affiliates

     66  
 

Section 8.8

  

Disposition of Assets

     67  
 

Section 8.9

  

Sale and Leaseback

     67  
 

Section 8.10

  

Prepayment of Debt

     67  
 

Section 8.11

  

Nature of Business

     67  
 

Section 8.12

  

Environmental Protection

     67  
 

Section 8.13

  

Accounting

     68  
 

Section 8.14

  

Burdensome Agreements

     68  
 

Section 8.15

  

Subsidiaries

     68  
 

Section 8.16

  

Amendments of Constituent Documents

     68  
 

Section 8.17

  

Hedge Agreements

     68  
 

Section 8.18

  

OFAC

     68  
 

Section 8.19

  

Host Customer Agreements

     68  
 

Section 8.20

  

O&M Expense; Master Services Agreement

     68  
 

Section 8.20

  

Performance Guaranty Obligations

     69  

ARTICLE 9 FINANCIAL COVENANTS

     69  
 

Section 9.1

  

Debt Service Coverage Ratio

     69  
 

Section 9.2

  

Right to Cure

     70  
 

Section 9.3

  

Minimum Portfolio FICO Score

     70  
 

Section 9.4

  

Minimum Book Net Worth

     70  

ARTICLE 10 DEFAULT

     71  
 

Section 10.1

  

Events of Default

     71  
 

Section 10.2

  

Remedies Upon Default

     73  
 

Section 10.3

  

Application of Funds

     74  
 

Section 10.4

  

Performance by Administrative Agent

     74  

ARTICLE 11 AGENCY

     75  
 

Section 11.1

  

Appointment and Authority

     75  
 

Section 11.2

  

Rights as a Lender

     75  
 

Section 11.3

  

Exculpatory Provisions

     76  
 

Section 11.4

  

Reliance by Administrative Agent

     77  
 

Section 11.5

  

Delegation of Duties

     77  
 

Section 11.6

  

Resignation of Administrative Agent

     78  
 

Section 11.7

  

Non-Reliance on Administrative Agent and Other Lenders

     79  
 

Section 11.8

  

Administrative Agent May File Proofs of Claim

     79  
 

Section 11.9

  

Collateral Matters

     80  
 

Section 11.10

  

Bank Product Agreements

     81  
 

Section 11.11

  

Certain ERISA Matters

     81  

ARTICLE 12 MISCELLANEOUS

     82  
 

Section 12.1

  

Expenses

     82  
 

Section 12.2

  

INDEMNIFICATION

     83  
 

Section 12.3

  

Limitation of Liability

     84  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

iii


 

Section 12.4

  

No Duty

     84  
 

Section 12.5

  

Lenders Not Fiduciary

     84  
 

Section 12.6

  

Equitable Relief

     85  
 

Section 12.7

  

No Waiver; Cumulative Remedies

     85  
 

Section 12.8

  

Successors and Assigns

     85  
 

Section 12.9

  

Survival

     89  
 

Section 12.10

  

Amendment

     90  
 

Section 12.11

  

Notices

     91  
 

Section 12.12

  

Governing Law; Venue; Service of Process

     93  
 

Section 12.13

  

Counterparts

     94  
 

Section 12.14

  

Severability

     94  
 

Section 12.15

  

Headings

     95  
 

Section 12.16

  

Construction

     95  
 

Section 12.17

  

Independence of Covenants

     95  
 

Section 12.18

  

WAIVER OF JURY TRIAL

     95  
 

Section 12.19

  

Additional Interest Provision

     95  
 

Section 12.20

  

Ceiling Election

     96  
 

Section 12.21

  

USA Patriot Act Notice

     97  
 

Section 12.22

  

Defaulting Lenders

     97  
 

Section 12.23

  

Sharing of Payments by Lenders

     98  
 

Section 12.24

  

Payments Set Aside

     99  
 

Section 12.25

  

Borrower Representative as Agent for Borrowers

     99  
 

Section 12.26

  

Joint and Several Liability

     100  
 

Section 12.27

  

Confidentiality

     101  
 

Section 12.28

  

Electronic Execution of Assignments and Certain Other Documents

     102  
 

Section 12.29

  

Independence of Covenants

     102  
 

Section 12.30

  

Release of Lien

     102  
 

Section 12.31

  

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

     103  
 

Section 12.32

  

Keepwell

     104  
 

Section 12.33

  

Amendment and Restatement; Ratification of Prior Liens and Loan Documents

     104  
 

Section 12.34

  

NOTICE OF FINAL AGREEMENT

     105  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

iv


INDEX TO SCHEDULES

 

Schedule

  

Description of Schedule

   Section

1.1(a)

  

BrightGrid Assets

   1.1

1.1(b)

  

Haleakala Assets

   1.1

2.1

  

Commitments and Applicable Percentages

   2.1

6.5

  

Litigation and Judgments

   6.5

6.13

  

Subsidiaries, Ventures, Etc.

   6.13

6.18

  

Intellectual Property

   6.18

8.2

  

Existing Liens

   8.2

8.5

  

Existing Investments

   8.5

12.11

  

Notices

   12.11

INDEX TO EXHIBITS

 

Exhibit

  

Description of Exhibit

   Section

A

  

Assignment and Assumption

   1.1

B

  

NPV Report

   1.1

C

  

Compliance Certificate

   1.1

D

  

Borrowing Request

   1.1

E

  

Note

   1.1

F

  

Tax Forms

   3.4(g)

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

v


AMENDED AND RESTATED CREDIT AGREEMENT

THIS AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of June 28, 2019, is among SUNNOVA ASSET PORTFOLIO 4, LLC, a Delaware limited liability company, and SUNNOVA LEASE VEHICLE 3-HI, LLC, a Delaware limited liability company (collectively, the “Borrowers” and each a “Borrower”), the lenders from time to time party hereto (collectively, “Lenders” and individually, a “Lender”), and TEXAS CAPITAL BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent.

RECITALS

Borrowers are party to that certain Credit Agreement dated as of July 31, 2014 among the Borrowers, the lenders party thereto, and Texas Capital Bank, National Association, as administrative agent (as amended prior to the date hereof, the “Existing Credit Agreement”).

Borrowers have requested that the Lenders amend and restate the Existing Credit Agreement and the Lenders have indicated their willingness to do so on the terms and subject to the conditions set forth herein.

NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, all exhibits, appendices and schedules hereto and in any note, certificate, report or other Loan Documents made or delivered pursuant to this Agreement, the following terms will have the meanings given such terms in this Article 1 or in the provision, section or recital referred to below:

Account” means an account, as defined in the UCC.

Adjusted Eurodollar Rate” means, with respect to any Portion for any Interest Period or day, as applicable, an interest rate per annum equal to the Eurodollar Rate for such Interest Period or day multiplied by the Statutory Reserve Rate; provided, however, if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

Administrative Agent” means Texas Capital Bank, National Association, in its capacity as administrative agent under any of the Loan Documents, until the appointment of a successor administrative agent pursuant to the terms of this Agreement and, thereafter, shall mean such successor administrative agent.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by Administrative Agent.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


Affiliate” means, as to any Person, any other Person (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such Person; (b) that directly or indirectly beneficially owns or holds 10% or more of any class of voting stock of such Person; or (c) 10% or more of the voting stock of which is directly or indirectly beneficially owned or held by such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause direction of the management or policies of a Person, whether through the ownership of voting securities, by contract, or otherwise; provided, however, in no event shall any Lender be deemed an Affiliate of any Borrower or any of its Subsidiaries or Affiliates.

Agent Parties” means, collectively, Administrative Agent or any of its Related Parties.

Aggregate Cost” means the sum of seventy percent (70.00%) of the EPC Cost of a Solar Panel System plus indirect costs of five percent (5.00%) of the EPC Cost for such Solar Panel System, provided that the costs included in the Aggregate Cost of Eligible Assets may be modified in the reasonable discretion (exercised in good faith and reasonable business judgment) of Administrative Agent upon completion of a field audit or an inspection pursuant to Section 7.6.

Agreement” has the meaning set forth in the introductory paragraph hereto, and includes all schedules, exhibits and appendices attached or otherwise identified therewith.

Anti-Corruption Laws” means all state or federal laws, rules, and regulations applicable to the Obligated Parties or any of their Subsidiaries from time to time concerning or relating to bribery or corruption, including the FCPA and the Bank Secrecy Act, and other similar anti-corruption legislation in other jurisdictions.

Anti-Terrorism Laws” has the meaning set forth in Section 6.20.

Applicable Margin” means the applicable percentages per annum set forth below:

 

Base Rate Portion

   Eurodollar Rate Portion

1.50%

   2.50%

Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the twelfth (12) decimal place) of the Facility represented by (i) prior to the making of the Loans on the Closing Date, such Lender’s Commitment, and (ii) after the making of the Loans on the Closing Date, the principal amount of such Lender’s Loans at such time.

Applicable Permit” means any permit, including any zoning, environmental protection, pollution, sanitation, FERC, any state public utility commission, safety, siting or building permit that is material or necessary at any given time in light of the operation of any Solar Panel System to operate, maintain, repair, own or use any such Solar Panel System as contemplated by a Host Customer Agreement, to sell or use electricity or renewable energy credits, “green tags” or other like environmental credits or benefits therefrom, to enter into any Host Customer Agreement or to consummate any transaction contemplated thereby.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

2


Applicable Rate” means (a) in the case of a Portion bearing interest based upon the Base Rate, the Base Rate plus the Applicable Margin; and (b) in the case of a Portion bearing interest based upon the Eurodollar Rate, the Adjusted Eurodollar Rate plus the Applicable Margin.

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arranger” means Texas Capital Bank in its capacity as sole lead arranger and sole book manager.

Assets” means, without duplication, the Host Customer Agreements for Solar Panel Systems that are installed and delivering electricity to the applicable Host Customers.

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.8), and accepted by Administrative Agent, in substantially the form of Exhibit A or any other form approved by Administrative Agent.

Assignor’s Acknowledgement” means a written acknowledgement, in form and substance satisfactory to Administrative Agent, confirming, among other things, that Host Customer Agreements were entered into, and are, in compliance with applicable laws, FERC regulations and Federal Trade Commission “green energy” regulations.

Backup Servicing Provider” means any successor backup servicing provider of the Assets approved in writing by Administrative Agent.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bank Product Agreements” means those certain agreements entered into from time to time between any Obligated Party and a Lender or its Affiliate in connection with any of the Bank Products, including without limitation, Hedge Agreements.

Bank Product Obligations” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by any Obligated Party to any Lender or its Affiliate pursuant to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that an Obligated Party is obligated to reimburse to any Lender or its Affiliate as a result of such Lender or its Affiliate purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to any Obligated Party pursuant to the Bank Product Agreements. For the avoidance of doubt, the Bank Product Obligations arising under any Hedge Agreement shall be determined by the Hedge Termination Value thereof.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

3


Bank Product Provider” means any Person that, at the time it enters into a Bank Product Agreement is a Lender or an Affiliate of a Lender, in its capacity as a party to such Bank Product Agreement.

Bank Products” means any service provided to, facility extended to, or transaction entered into with, any Obligated Party by any Lender or its Affiliate consisting of (a) deposit accounts, (b) cash management services, including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements maintained with any Lender or its Affiliates, (c) debit cards, stored value cards, and credit cards (including commercial credit cards (including so-called “procurement cards” or “P-cards”)) and debit card and credit card processing services or (d) Hedge Agreements.

Base Rate” means, for any day, a rate of interest per annum equal to the highest of (a) the Prime Rate for such day; (b) the sum of the Federal Funds Rate for such day plus one half of one percent (0.5%); and (c) the Adjusted Eurodollar Rate for such day plus one percent (1.00%). If the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Base Rate Portion” means each Portion bearing interest based on the Base Rate.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Book Net Worth” means, as of any date of determination, the difference between: (a) the total assets appearing on the consolidated balance sheet of the Borrowers and their Subsidiaries at such date prepared in accordance with GAAP; and (b) the total liabilities appearing on such balance sheet.

Borrower” and “Borrowers” mean the Persons identified as such in the introductory paragraph hereto, and their successors and assigns to the extent permitted by Section 12.8.

Borrower Materials” has the meaning set forth in Section 12.11(e).

Borrower Representative” means Sunnova Asset Portfolio 4, LLC, a Delaware limited liability company, acting in its capacity as borrowing agent and attorney-in-fact for Borrowers pursuant to Section 12.25.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

4


Borrowing” means the borrowing consisting of simultaneous Loans made by each of the Lenders pursuant to Section 2.1 on the Closing Date. The Borrowing shall be in an amount equal to the aggregate Commitments of all Lenders as of the Closing Date.

Borrowing Request” means a request in writing, substantially in the form of Exhibit D, properly completed and signed by Borrower Representative, requesting (a) a conversion of any Portion from one Type to the other, or (b) a continuation of any Eurodollar Rate Portion.

BrightGrid Assets” means the Host Customer Agreements and Related Assets described on Schedule 1.1(a).

Business Day” means (a) for all purposes, a weekday, Monday through Friday, except a legal holiday or a day on which banking institutions in Dallas, Texas are authorized or required by law to be closed, and (b) for purposes of any Eurodollar Rate Portion, a day that satisfies the requirements of clause (a) and that is a day on which commercial banks in the City of London, England are open for business and dealing in offshore Dollars. Unless otherwise provided, the term “days” when used herein means calendar days.

Capitalized Lease Obligation” means, with respect to any Person, the amount of Debt under a lease of Property by such Person that would be shown as a liability on a balance sheet of such Person prepared for financial reporting purposes in accordance with GAAP.

Cash Interest Expense” means, for any Person for any period, total interest expense in respect of all outstanding Debt actually paid or that is payable by such Person during such period, including, without limitation, all commissions, discounts, and other fees and charges with respect to letters of credit and all net costs under Hedge Agreements in respect of interest rates to the extent such costs are allocable to such period, but excluding interest expense not payable in cash, all as determined in accordance with GAAP.

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, implemented, adopted or issued.

Change of Control” means an event or series of events by which: (a) Parent shall cease for any reason to have record and beneficial ownership of at least 51% of all voting equity securities of Borrower Representative either directly or indirectly through Intermediate Holdco (if existing), (b) John Berger shall cease to be the CEO of Parent or shall cease to be involved in the day to day management of Parent, and replacement management has not been approved by Administrative Agent, (c) Parent shall cease for any reason to be active in the day to day management of Borrower Representative, or (d) Borrower Representative shall cease for any reason to have record and beneficial ownership, directly or indirectly, of 100% of all equity securities of each of its Subsidiaries.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

5


Closing Date” means the first date all the conditions precedent in Section 5.1 are satisfied or waived in accordance with Section 12.10.

Closing Date Principal Payment” means a prepayment of Loans (as defined in the Existing Credit Agreement) in an aggregate principal amount of $5,000,000 made by Borrowers on the Closing Date.

Code” means the Internal Revenue Code of 1986.

Collateral” means substantially all of the Property of Borrowers and their Subsidiaries as described in the Security Documents, including Host Customer Agreements and Solar Panel Systems (including Borrowers’ rights with respect to Solar Panel Systems securing Host Customer’s obligations under EZ-Own Contracts), and 100% of the equity interests in Borrower Representative owned by Parent and any other Person (subject to the provisions of Section 12.30), together with any other Property and collateral described in the Security Documents, and any other Property which may now or hereafter secure the Obligations or any part thereof.

Collections” means, with respect to any period, all Host Customer Payments, PBI Payments, Rebates and other cash proceeds received by the Borrowers during such period (other than any Extraordinary Receipt or other net cash proceeds subject to the mandatory prepayment or reinvestment provisions of Section 2.6(d)). Without limiting the foregoing, “Collections” shall include any amounts payable to any Borrower (i) under any Hedge Agreement entered into in connection with this Agreement, after giving effect to any netting arrangements and (ii) with respect to any SREC.

Commitment” means, as to each Lender, its obligation to make Loans to Borrowers pursuant to Section 2.1(a), in an aggregate principal amount not to exceed the lesser of (a) the amount set forth opposite such Lender’s name on Schedule 2.1 under the caption “Commitment” and (b) the aggregate outstanding principal amount of such Lender’s Loans (as defined under the Existing Credit Agreement) on the Closing Date after giving effect to the Closing Date Principal Payment. “Commitments” means the aggregate Commitments of all Lenders.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of Borrowers pursuant to any Loan Document or the transactions contemplated therein which is distributed to Administrative Agent or any Lender by means of electronic communications pursuant to Section 12.11(d), including through the Platform.

Compliance Certificate” means a certificate, substantially in the form of Exhibit C, or in any other form agreed to by Borrowers and Administrative Agent, prepared by and certified by a Responsible Officer of Borrower Representative.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

6


Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consents to Assignment” means (a) that certain Consent to Assignment dated as of July 31, 2014 relating to the assignment to Administrative Agent of Borrower Representative’s rights, title and interest under the Master Service Agreement, (b) that Consent to Assignment dated as of July 31, 2014 relating to the assignment to Administrative Agent of Borrower Representative’s rights, title and interest under the servicing agreement dated as of July 30, 2014 with the Backup Servicing Provider, (c) that certain Notice and Acknowledgment of Assignment dated as of December 28, 2017 relating to the assignment to Administrative Agent of Sunnova LV3-HI’s rights, title and interest to and under the Haleakala Loan Documents, (d) that certain Consent to Assignment dated as of December 28, 2017 relating to the assignment to Administrative Agent of Sunnova LV3-HI’s rights, title and interest to and under the Master Servicing Agreement relating to the Haleakala Assets, and (e) that certain Notice and Acknowledgment of Assignment dated as of December 28, 2017 relating to the assignment to Administrative Agent of Sunnova LV3-HI’s rights, title and interest to and under that certain Option Agreement dated as of December 17, 2013 pursuant to which Sunnova LV3-HI was granted an option to purchase the Haleakala Assets.

Constituent Documents” means (a) in the case of a corporation, its articles or certificate of incorporation and bylaws; (b) in the case of a general partnership, its partnership agreement; (c) in the case of a limited partnership, its certificate of limited partnership or certificate of formation, as applicable, and partnership agreement; (d) in the case of a trust, its trust agreement; (e) in the case of a joint venture, its joint venture agreement; (f) in the case of a limited liability company, its articles of organization, operating agreement, regulations and/or other organizational and governance documents and agreements; and (g) in the case of any other entity, its organizational and governance documents and agreements.

Debt” means, of any Person as of any date of determination (without duplication): (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, notes, debentures, or other similar instruments; (c) all obligations of such Person to pay the deferred purchase price of Property or services, except trade accounts payable of such Person arising in the ordinary course of business that are not past due by more than ninety (90) days; (d) all Capitalized Lease Obligations of such Person; (e) all Debt or other obligations of others Guaranteed by such Person; (f) all obligations secured by a Lien existing on Property owned by such Person, whether or not the obligations secured thereby have been assumed by such Person or are non-recourse to the credit of such Person; (g) any other obligation for borrowed money or other financial accommodations which in accordance with GAAP would be shown as a liability on the balance sheet of such Person; (h) any repurchase obligation or liability of a Person with respect to Accounts, chattel paper or notes receivable sold by such Person; (i) any liability under a sale and leaseback transaction that is not a Capitalized Lease Obligation; (j) any obligation under any so called “synthetic leases;” (k) any obligation arising with respect to any other transaction that is the functional equivalent of borrowing but which does not constitute a liability on the balance sheets of a Person; (l) all payment and reimbursement obligations of such Person (whether contingent or otherwise) in respect of letters of credit, bankers’ acceptances, surety or other bonds and similar instruments; (m) all liabilities

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

7


of such Person in respect of unfunded vested benefits under any Plan; (n) all Hedge Obligations of such Person, valued at the Hedge Termination Value thereof; and (o) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any equity interests in such Person or any other Person, valued, in the case of redeemable preferred stock interests, at the greater of its voluntary or involuntary liquidation preference plus all accrued and unpaid dividends.

For all purposes, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Debt is expressly made non-recourse to such Person.

Debt Service” means, for any period, for Borrower Representative and its Subsidiaries on a consolidated basis in accordance with GAAP, the sum of (a) all regularly scheduled principal payments on the Loans or any other Debt, (b) all Cash Interest Expense, (c) costs and expenses arising under Hedge Agreements to which Borrower Representative or any Subsidiary is a party (other than fees, expenses and liquidation and termination payments), after giving effect to any netting arrangements and (d) all payments with respect to Capitalized Lease Obligations, in each case, that are paid or payable in cash during such period (other than scheduled payments of principal on Debt which pay such Debt in full, but only to the extent such final payment is greater than the scheduled principal payment immediately preceding such final payment).

Debt Service Coverage Ratio” means, as of any date of determination, the ratio of (a) Collections for the most recently ended four fiscal quarter period, less the sum of the following (i) cash Taxes paid or payable during such period, (ii) fees and expenses of the Administrative Agent and Lenders paid or payable by Borrower Representative and its Subsidiaries under this Agreement during such period, (iii) O&M Expenses paid or payable during such period, (iv) Performance Guaranty Obligations paid or payable during such period and (v) fees and expenses paid or payable during such period by Borrower Representative and its Subsidiaries to the servicer under the Master Service Agreement or under any agreement with the Backup Servicing Provider, to (b) Debt Service, in each case for Borrower Representative and its Subsidiaries, on a consolidated basis, for such period.

Debtor Relief Laws” means Title 11 of the United States Code, as now or hereafter in effect, or any other applicable law, domestic or foreign, as now or hereafter in effect, relating to bankruptcy, insolvency, liquidation, receivership, reorganization, assignment for the benefit of creditors, moratorium, arrangement or composition, extension or adjustment of debts, or similar Laws affecting the rights of creditors.

Default” means an Event of Default or the occurrence of an event or condition which with notice or lapse of time or both would become an Event of Default.

Default Interest Rate” means an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin, if any, applicable to a Base Rate Portion plus (iii) two percent (2%) per annum; provided, however, that with respect to a Eurodollar Rate Portion, the Default Interest Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Portion plus two percent (2%) per annum; provided, however, in no event shall the Default Interest Rate exceed the Maximum Rate.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

8


Defaulting Lender” means, subject to Section 12.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrowers or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrower Representative, to confirm in writing to Administrative Agent and Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower Representative), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 12.22(b)) upon delivery of written notice of such determination to Borrower Representative and each Lender.

Depository Account” has the meaning set forth in Section 7.17.

Disposition” means any sale, lease, sub-lease, transfer, assignment, conveyance, release, loss or other disposition, or entry into any contract the performance of which would result in any of the foregoing, of any interest in Property, or of any interest in a Subsidiary that owns Property, in any transaction or event or series of transactions or events, and “Dispose” has the correlative meaning thereto.

Dollars” and “$” mean lawful money of the United States of America.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

9


EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Assets” means:

(a) Assets (other than EZ-Own Assets) owned by a Borrower (including the Haleakala Assets and the BrightGrid Assets) that have all Applicable Permits, that are free and clear of any Liens (other than those of Administrative Agent or in the case of the Haleakala Assets, other than (i) those of Sunnova LV3-HI which have been assigned to Administrative Agent, and (ii) the STW Lien), that are approved by Administrative Agent in its reasonable discretion without undue delay and for which Administrative Agent for the benefit of the Secured Parties shall have a perfected Lien upon filing of the applicable Security Document ranking a first priority unless Administrative Agent agrees otherwise in writing; and

(b) Assets which are EZ-Own Assets that have all Applicable Permits, that are free and clear of any Liens (other than those of the applicable Borrower), that are approved by Administrative Agent in its reasonable discretion without undue delay and for which Administrative Agent shall be satisfied that the applicable Borrower shall have a perfected Lien ranking first priority on any such Solar Panel Systems financed under the applicable EZ-Own Contracts (and for which Administrative Agent shall be satisfied that Administrative Agent for the benefit of the Secured Parties shall have a perfected Lien ranking first priority in such Borrower’s interests under such EZ-Own Contracts);

provided that in the case of clause (a) and (b) above, (i) no Asset shall be an Eligible Asset unless it is generating cash flow and is delivering power to the homeowner in accordance with the Host Customer Agreement applicable thereto, (ii) any otherwise qualifying Eligible Asset for which Host Customer payment is at least thirty (30) days past due shall not be an Eligible Asset, and (iii) the minimum average FICO Score of the Borrowers’ portfolio of Host Customer Agreements constituting Eligible Assets shall be at least [***].

Notwithstanding the foregoing, to the extent that a Loss or other circumstance puts an Asset out of service, which Asset was an Eligible Asset prior to such Loss or other circumstance, such Asset shall continue to be deemed an Eligible Asset for so long as such Asset is in the process of repair, restoration or replacement (not to exceed ninety (90) days of the date of such Loss or other circumstance (or, in each case, such longer period of time agreed to in writing by the Administrative Agent in its sole discretion)) and for so long as Borrowers are in compliance with the provisions of Section 2.6(d)(iv) with respect to any Extraordinary Receipt received in connection with such Loss or other circumstance.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

10


Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 12.8(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 12.8(b)(iii)).

Environmental Laws” means any and all federal, state, and local Laws, regulations, judicial decisions, orders, decrees, plans, rules, permits, licenses, and other governmental restrictions and requirements pertaining to health, safety, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.

Environmental Liabilities” means, as to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs, and expenses (including, without limitation, all reasonable fees, disbursements and expenses of counsel, expert and consulting fees and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, including any Environmental Law, permit, order or agreement with any Governmental Authority or other Person, arising from environmental, health or safety conditions or the Release or threatened Release of a Hazardous Material into the environment, resulting from the past, present, or future operations of such Person or its Affiliates.

EPC Cost” means Borrower’s, Parent’s or their Affiliate’s aggregate engineering, procurement and construction cost of the Solar Panel System associated with a Host Customer Agreement (it being understood and agreed that the EPC Cost of the BrightGrid Assets is as set forth on Schedule 1.1(a) and that the EPC Cost of the Haleakala Assets is as set forth on Schedule 1.1(b)).

Equity Cure” means, subject to the terms and provisions of Section 9.2, a cure of an Event of Default resulting from a breach of the financial covenant set forth in Section 9.1 effectuated by Borrower Representative taking each of the following actions: (a) receiving cash equity contributions in the form of common equity interests of the Borrower Representative which amounts shall be added to Collections for the fiscal quarter in which such Event of Default occurred in a sufficient amount so that the Debt Service Coverage Ratio, as recalculated after giving effect to any such cash equity contributions as of the last day of the fiscal quarter for which such Event of Default occurred, is in compliance with the ratio set forth in Section 9.1 on such date, and (b) delivering to Administrative Agent (i) written notice specifying that such cash equity contributions are to be used for purposes of making an Equity Cure, and (ii) a revised Compliance Certificate demonstrating compliance with Section 9.1 after giving effect to such Equity Cure.

ERISA” means the Employee Retirement Income Security Act of 1974.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

11


ERISA Affiliate” means any corporation or trade or business which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as an Obligated Party or is under common control (within the meaning of Section 414(c) of the Code and Sections 414(m) and (o) of the Code for purposes of the provisions relating to Section 412 of the Code) with an Obligated Party.

ERISA Event” means (a) a Reportable Event with respect to a Plan, (b) a withdrawal by any Obligated Party or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by any Obligated Party 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 Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan, (e) the occurrence of an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan, (f) the imposition of any liability to the PBGC under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligated Party or any ERISA Affiliate, (g) the failure of any Obligated Party or ERISA Affiliate to meet any funding obligations with respect to any Plan or Multiemployer Plan, or (h) a Plan becomes subject to the at-risk requirements in Section 303 of ERISA and Section 430 of the Code.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

Eurodollar Rate” means:

(a) with respect to any Eurodollar Rate Loan for any Interest Period, the rate (expressed as a percentage per annum and adjusted as described in Section 3.3(b)) for deposits in Dollars for a term comparable to such Interest Period that is published or announced on Bloomberg BTMM (or on any successor or substitute page or service providing quotations of interest rates applicable to Dollar deposits in the London interbank market comparable to those currently provided on such page or service, as determined by Administrative Agent from time to time) as calculated by ICE as of 11:00 a.m., London, England time, on the related Eurodollar Rate Determination Date, and if such rate shall cease to be published or announced on Bloomberg BTMM or such successor or substitute page or service or if Administrative Agent determines (which determination shall be conclusive absent manifest error) that the rate calculated by ICE no longer accurately reflects the rate available to Administrative Agent in the London interbank market and that such circumstance is likely to be temporary, then the Eurodollar Rate shall be determined by Administrative Agent in its sole reasonable discretion to be the offered rate as announced by a recognized commercial service as representing the average London interbank offered rate for deposits in Dollars for a term comparable to such Interest Period as of 11:00 a.m. on the relevant Eurodollar Rate Determination Date; and

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

12


(b) with respect to any interest calculation with respect to a Base Rate Loan on any date, the rate (expressed as a percentage per annum and adjusted as described in Section 3.3(b)) for deposits in Dollars for a term of one (1) month commencing on the date of calculation that is published or announced on Bloomberg BTMM (or on any successor substitute page or service providing quotations of interest rates applicable to Dollar deposits in the London interbank market comparable to those currently provided on such page or service, as determined by Administrative Agent from time to time) as calculated by ICE as of 11:00 a.m., London, England time, on the related Eurodollar Rate Determination Date, and if such rate shall cease to be published or announced on Bloomberg BTMM or such successor or substitute page or service or if Administrative Agent determines (which determination shall be conclusive absent manifest error) that the rate calculated by ICE no longer accurately reflects the rate available to Administrative Agent in the London interbank market and that such circumstance is likely to be temporary, then the Eurodollar Rate shall be determined by Administrative Agent in its sole reasonable discretion to be the offered rate as announced by a recognized commercial service as representing the average London interbank offered rate for deposits in Dollars for a term of one (1) month as of 11:00 a.m. on the relevant Eurodollar Rate Determination Date.

Eurodollar Rate Determination Date” means a day that is two (2) Business Days prior to the beginning of the relevant Interest Period or prior to the applicable date, as applicable.

Eurodollar Rate Portion” means each Portion bearing interest based on the Adjusted Eurodollar Rate where the Eurodollar Rate is determined pursuant to clause (a) of the definition thereof.

Event of Default” has the meaning set forth in Section 10.1.

Excess Cash” has the meaning set forth in Section 7.17(b).

Excluded Swap Obligation” means, with respect to any Obligated Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Obligated Party of, or the grant by such Obligated Party of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Obligated Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell, support or other agreement” for the benefit of such Obligated Party and any and all Guarantees of such Obligated Party’s Swap Obligations by any Borrower or any other Obligated Party) at the time the Guarantee of such Obligated Party, or a grant by such Obligated Party of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or Lien is or becomes excluded in accordance with the first sentence of this definition.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

13


Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment request by Borrowers under Section 3.6(b) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.4(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

Existing Credit Agreement” has the meaning set forth in the Recitals hereto.

Extraordinary Receipt” means any cash received by or paid to or for the account of any Borrower or any of its Subsidiaries not in the ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments.

EZ-Own Assets” means, without duplication, the EZ-Own Contracts for Solar Panel Systems that are installed and delivering electricity to the applicable EZ-Own Customers.

EZ-Own Customer” means a residential customer under an EZ-Own Contract.

EZ-Own Contract” means an enforceable security agreement and operations and maintenance agreement between an EZ-Own Customer and a Borrower executed in connection with a residential home improvement agreement contemplated thereby.

Facility” means, at any time, (a) prior to the making of the Loans on the Closing Date, the aggregate amount of the Commitments at such time and (b) after the making of the Loans on the Closing Date, the aggregate principal amount of the Loans of all Lenders outstanding at such time.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.

Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

14


funds brokers on such day, as published by the Federal Reserve Bank of New York, on the Business Day next succeeding such day, provided that (a) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent. If the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Fee Letter” means the separate fee letter dated as of even date herewith, among Borrowers and Texas Capital Bank and any other fee letter among Borrowers and Administrative Agent, Arranger and/or Texas Capital Bank concerning fees to be paid by Borrowers in connection with this Agreement including any amendments, restatements, supplements or modifications thereof. By its execution of this Agreement, each Lender acknowledges and agrees that Administrative Agent, Arranger and/or Texas Capital Bank may elect to treat as confidential and not share with Lenders any Fee Letters executed from time to time in connection with this Agreement.

FERC” means the Federal Energy Regulatory Commission and any successor agency or commission.

FICO Score” means the score developed by Fair Isaacs Corporation to evaluate the credit risk of a Host Customer and shown on a credit report prepared by Equifax, Experian, TransUnion, or any other authorized national credit reporting agency. For all purposes hereunder, if two FICO Scores are obtained for any Host Customer, the higher score shall be used. If three FICO Scores are obtained for any Host Customer, the middle score shall be used.

Flood Insurance Regulations” means (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973, (c) the National Flood Insurance Reform Act of 1994 (amending 42 USC 4001 et seq.), and (d) the Flood Insurance Reform Act of 2004, in each case as now or hereafter in effect or any successor statute thereto and including any regulations promulgated thereunder.

Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which a Borrower is resident for tax purposes.

Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

GAAP” means generally accepted accounting principles, applied on a consistent basis, as set forth in opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants and/or in statements of the Financial Accounting Standards Board and/or their respective successors and which are applicable in the circumstances as of the date in question. Accounting principles are applied on a “consistent basis” when the accounting principles applied in a current period are comparable in all material respects to those accounting principles applied in a preceding period.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

15


Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank, tribal body or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), and any group or body charged with setting financial accounting or regulatory capital rules or standards (including without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

Guarantee” by any Person means any obligation or liability, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person as well as any obligation or liability, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation or liability (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to operate Property, to take-or-pay, or to maintain net worth or working capital or other financial statement conditions or otherwise) or (b) entered into for the purpose of indemnifying or assuring in any other manner the obligee of such Debt or other obligation or liability of the payment thereof or to protect the obligee against loss in respect thereof (in whole or in part); provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

Guarantor” means (a) each Subsidiary required under Section 7.13 to execute a Guaranty Agreement, (b) each Borrower with respect to any Bank Product Agreement to which an Obligated Party (other than such Borrower) is a party, and (c) each other Person who from time to time Guarantees all or any part of the Obligations.

Guaranty Agreement” means any written guaranty agreement executed by a Guarantor in favor the Administrative Agent, for the ratable benefit of the Secured Parties, in form and substance reasonably satisfactory to the Administrative Agent.

Haleakala Assets” means all of the Assets listed on Schedule 1.1(b) (it being understood and agreed that such Schedule is intended to list all of the Assets listed on Exhibits A-1 and A-2 of the Haleakala Loan and Security Agreement). Notwithstanding anything herein to the contrary, each of the Haleakala Assets, to the extent not owned by a Borrower, shall be deemed the Property of Sunnova LV3-HI for purposes of this Agreement and the other Loan Documents for so long as (a) the Haleakala Loan Documents remain in full force and effect and (b) such Assets remain encumbered by first priority Liens in favor of Sunnova LV3-HI and which have been collaterally assigned to Administrative Agent for the benefit of Secured Parties.

Haleakala Loan and Security Agreement” means that certain Loan and Security Agreement dated December 17, 2003 by and between Sunnova LV3-HI, as lender, and STW Holdings, LLC, a Hawaii limited liability company, as borrower, as amended, modified or supplemented from time to time.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

16


Haleakala Loan Documents” means the Haleakala Loan and Security Agreement and the other loan documents executed in connection therewith, as amended, modified or supplemented from time to time.

Hazardous Material” means any substance, product, waste, pollutant, material, chemical, contaminant, constituent, or other material which is or becomes listed, regulated, or addressed under any Environmental Law, including, without limitation, asbestos, petroleum, and polychlorinated biphenyls.

Hedge Agreement” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules and annexes, a “Master Agreement”), (c) any and all Master Agreements and any and all related confirmations, and (d) any other agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Hedge Obligations” means, at any time with respect to any Person, all indebtedness, liabilities, and obligations of such Person under or in connection with any Hedge Agreement, whether actual or contingent, due or to become due and existing or arising from time to time.

Hedge Termination Valuemeans, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and settlement amounts, early termination amounts or termination value(s) determined in accordance therewith, such settlement amounts, early termination amounts or termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more commercially reasonable mid-market or other readily available quotations provided by any dealer which is a party to such Hedge Agreement or any other recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).

Host Customer” means a residential customer under a Host Customer Agreement, including, for the avoidance of doubt, an EZ-Own Customer, as applicable.

Host Customer Agreement” means a Lease Agreement, a Power Purchase Agreement or an EZ-Own Contract, as applicable. Notwithstanding anything herein to the contrary, each of the Haleakala Assets, to the extent not owned by a Borrower, shall be deemed a Host Customer Agreement for purposes of this Agreement and the other Loan Documents for so long as (a) the

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

17


Haleakala Loan Documents remain in full force and effect and there exists no default (subject to any applicable cure periods) by any obligor thereunder and (b) such Assets remain encumbered by first priority Liens in favor of Sunnova LV3-HI and which have been collaterally assigned to Administrative Agent for the benefit of Secured Parties.

Host Customer Payments” means, for any period, the aggregate cash payments made by Host Customers and received by Borrowers during such period in respect of obligations owing by such Host Customers to Borrowers under Host Customer Agreements, including any amounts payable by such Host Customers that are attributable to sales, use or property taxes.

ICE” means the Intercontinental Exchange Benchmark Administration or any successor thereto.

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Information” has the meaning set forth in Section 12.27.

Intellectual Property” means all copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses and other types of intellectual property, in whatever form, now owned or hereafter acquired.

Interest Payment Date” means (a) in respect of each Base Rate Portion, the last day of each and every calendar month during the term of this Agreement and the Maturity Date, and (b) in respect of each Eurodollar Rate Portion, the last day of each Interest Period applicable to such Eurodollar Rate Portion, (or the day that is three months after the first day of such Interest Period if such Interest Period has a length of more than three (3) months) and the Maturity Date.

Interest Period” means with respect to any Eurodollar Rate Portion, the period commencing on the date such Portion becomes a Eurodollar Rate Portion (whether by the making of a Loan or its continuation or conversion) and ending on the numerically corresponding day in the calendar month that is one (1), two (2) or three (3) months thereafter, as Borrower Representative may elect; provided, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period pertaining to a Eurodollar Rate Portion that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.

Interest Rate” means the rate equal to the lesser of (a) the Maximum Rate and (b) the Applicable Rate.

Intermediate Holdco” means (a) a holding company that is a wholly-owned direct subsidiary of Parent which may be created after the Closing Date in connection with the establishment of a Qualified Parent Credit Facility that will hold 100% of the equity interests of

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

18


Borrower Representative and other wholly-owned direct subsidiaries of Parent or (b) if the Parent elects in its sole discretion to transfer 100% of the equity interests of Borrower Representative to Sunnova Intermediate Holdings, LLC, Sunnova Intermediate Holdings, LLC.

IRS” means the Internal Revenue Service or any entity succeeding to all or any of its functions.

ITC” means any investment tax credit under Title 26, Section 48 of the Code or any successors or similar provision, including any similar provision concerning a refundable tax credit that replaces such investment tax program.

Laws” means, collectively, all international, foreign, federal, state, provincial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administrative thereof by any Governmental Authority charged with the enforcement, interpretation or administrative thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lease Agreement” means an enforceable true lease between a Host Customer and a Borrower, either directly or as a result of a prior assignment to a Borrower, which assignment is in form and substance satisfactory to Administrative Agent, whereby such Borrower leases the affiliated Solar Panel System to such Host Customer for use on the Host Customer’s property.

Lender” and “Lenders” have the meanings set forth in the introductory paragraph hereto.

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower Representative and Administrative Agent.

Lien” means, as to any Property of any Person, (a) any lien, mortgage, security interest, tax lien, pledge, charge, hypothecation, collateral assignment, preference, priority, or other encumbrance of any kind or nature whatsoever (including, without limitation, any conditional sale or title retention agreement), whether arising by contract, operation of law, or otherwise, affecting such Property and (b) the signing or filing of a financing statement which names the Person as debtor or the signing of any security agreement or the signing of any document authorizing a secured party to file any financing statement which names such Person as debtor.

Loan” means an extension of credit by a Lender to Borrowers pursuant to Section 2.1(a).

Loan Documents” means this Agreement, each Assignor’s Acknowledgement, each Consent to Assignment, the Security Documents, the Notes, each Guaranty Agreement, and all other promissory notes, security agreements, deeds of trust, assignments, letters of credit, guaranties, and other instruments, documents, or agreements executed and delivered pursuant to or in connection with this Agreement or the Security Documents, including any intercreditor agreement; provided that the term “Loan Documents” shall not include any Bank Product Agreement.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

19


Lockbox” has the meaning set forth in Section 7.17.

Loss” has the meaning set forth in Section 7.5(c).

Master Service Agreement” means the May 9, 2014 Master Service Agreement between Borrowers and Sunnova Management, LLC, as in effect on the date hereof.

Material Adverse Event” means any act, event, condition, or circumstance which could materially and adversely affect (a) the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of any Borrower or Borrower Representative and its Subsidiaries, taken as a whole; (b) the ability of any Obligated Party to perform its obligations under any Loan Document to which it is a party; or (c) the legality, validity, binding effect or enforceability against any Obligated Party of any Loan Document to which it is a party.

Maturity Date” means (a) January 31, 2021, or (b) such earlier date as the Obligations become due and payable pursuant to this Agreement (whether by acceleration, prepayment in full, scheduled reduction or otherwise); provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next succeeding Business Day.

Maximum Loan Amount” means, at any time, the value in Dollars of 50% the aggregate NPV of all Eligible Assets at such time. Notwithstanding the foregoing, if at any time of calculation, the NPV of EZ-Own Contracts exceeds 5% of the NPV of all Eligible Assets at such time, the calculation of the Maximum Loan Amount at such time shall exclude such excess.

Maximum Rate” means, at all times, the maximum rate of interest which may be charged, contracted for, taken, received or reserved by Lenders in accordance with applicable Texas law (or applicable United States federal law to the extent that such law permits Lenders to charge, contract for, receive or reserve a greater amount of interest than under Texas law). The Maximum Rate shall be calculated in a manner that takes into account any and all fees, payments, and other charges in respect of the Loan Documents that constitute interest under applicable law. Each change in any interest rate provided for herein based upon the Maximum Rate resulting from a change in the Maximum Rate shall take effect without notice to Borrowers at the time of such change in the Maximum Rate.

Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions are being made or have been made by, or for which there is an obligation to make by or there is any liability, contingent or otherwise, with respect to an Obligated Party or any ERISA Affiliate and which is covered by Title IV of ERISA.

Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 12.10 and (b) has been approved by the Required Lenders.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

20


Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

Notes” mean, collectively, a Note (as defined in, and issued by Borrowers to Lenders under, the Existing Credit agreement) and any other a promissory note made by Borrowers in favor of a Lender and substantially in the form of Exhibit E.

NPV” means,

(a) with respect to the Eligible Assets (other than EZ-Own Assets), the net present value of (a) future cash payments under the applicable Host Customer Agreements during the remaining term thereof, discounted at 6% per annum, plus (b) the residual value of the relevant Solar Panel Systems on the termination date of the associated Host Customer Agreements, equal to [***]% of the Aggregate Cost of the applicable Solar Panel Systems, discounted at 6% per annum, plus (c) the economic value of the accelerated depreciation of the relevant Solar Panel Systems, equal to [***]% of the Aggregate Cost of the applicable Solar Panel Systems based on five-year MACRs schedule beginning on the commencement date of the applicable Host Customer Agreement, discounted at 9% per annum, plus (d) the ITC associated with the relevant Solar Panel Systems beginning on the commencement date of the applicable Host Customer Agreement, plus (e) state and local tax rebates and other credits related to the relevant Solar Panel Systems to the extent expected to be recognized by Borrowers (if any) as mutually agreed upon by the Borrower Representative and Administrative Agent, less (f) O&M Expense and Performance Guaranty Obligations associated with such Eligible Assets, discounted at 6% per annum, less (g) all future federal and state tax income and franchise tax obligations associated with such Eligible Assets; and

(b) with respect to the Eligible Assets which are EZ-Own Assets, (a) the net present value of future cash payments under such EZ-Own Contracts during the remaining term thereof, discounted at 6% per annum, plus (b) state and local tax rebates and other credits related to the relevant Solar Panel Systems to the extent expected to be recognized by Borrowers (if any) as mutually agreed upon by the Borrower Representative and Administrative Agent, less (c) O&M Expense and Performance Guaranty Obligations associated with such Eligible Assets, discounted at 6% per annum, less (d) all future federal and state tax income and franchise tax obligations associated with such Eligible Assets.

NPV Report” means, as of any date of preparation, a certificate, substantially the form of Exhibit B, or in any other form agreed to by Borrowers and Administrative Agent, prepared by and certified by a Responsible Officer of Borrower Representative certifying as to the NPV of Eligible Assets and the calculation of the Maximum Loan Amount.

O&M Expense” means operating and maintenance expenses related to Host Customer Agreements. For the avoidance of doubt, “O&M Expense” shall not include Performance Guaranty Obligations.

Obligated Party” means each Borrower and each other Person who is or becomes party to any agreement with Administrative Agent and/or Lenders that obligates such Person to pay or perform, or that Guarantees or secures payment or performance of, the Obligations under the Loan Documents or any part thereof.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

21


Obligations” means all obligations, indebtedness, and liabilities of each Borrower and any other Obligated Party to Administrative Agent, each Lender and each other Secured Party now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, arising under or pursuant to this Agreement, any Bank Product Agreements, the other Loan Documents, and all interest accruing thereon (whether a claim for post-filing or post-petition interest is allowed in any bankruptcy, insolvency, reorganization or similar proceeding) and all attorneys’ fees and other expenses incurred in the enforcement or collection thereof; provided that, as to any Obligated Party, the “Obligations” of such Obligated Party shall exclude any Excluded Swap Obligations of such Obligated Party.

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.6).

Outstanding Amount” means the aggregate outstanding principal amount of the Loans after giving effect to any borrowings, prepayments or repayments of Loans, as the case may be, occurring on such date.

Parent” means Sunnova Energy Corporation, a Delaware corporation.

Participant” means any Person (other than a natural Person, a Defaulting Lender, or a Borrower or any of Borrowers’ Affiliates or Subsidiaries or any other Obligated Party) to which a participation is sold by any Lender in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it).

Participant Register” means a register in the United States on which each Lender that sells a participation enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents.

Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56, signed into law October 26, 2001).

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

22


PBI Documents” means, with respect to a Solar Panel System, (a) all applications, forms and other filings required to be submitted to a PBI Obligor in connection with the performance based incentive program maintained by such PBI Obligor and the procurement of PBI Payments, and (b) all approvals, agreements and other writings evidencing (i) that all conditions to the payment of PBI Payments by the PBI Obligor have been met, (ii) that the PBI Obligor is obligated to pay PBI Payments and (iii) the rate and timing of such PBI Payments.

PBI Obligor means a utility or Governmental Authority that maintains or administers a renewable energy program designed to incentivize the installation of Solar Panel Systems and use of solar generated electricity that has approved and is obligated to make PBI Payments to the owner of the related Solar Panel System.

PBI Payments” means, with respect to a Solar Panel System and the related PBI Documents, all payments due by the related PBI Obligor under or in respect of such PBI Documents.

PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to all or any of its functions under ERISA.

Performance Guaranty” means, with respect to a Solar Panel System, an agreement in the form of a production warranty that specifies a minimum level of solar energy production, as measured in kWh, for a specified time period, and pursuant to which the Host Customer could be compensated if the related Solar Panel System does not meet the electricity production guarantee.

Performance Guaranty Obligations” means, at any time, all obligations and liabilities of Borrowers arising under any Performance Guaranty.

Permitted Liens” means those Liens permitted by Section 8.2.

Person” means any individual, corporation, limited liability company, business trust, association, company, partnership, joint venture, Governmental Authority, or other entity, and shall include such Person’s heirs, administrators, personal representatives, executors, successors and assigns.

Plan” means any employee benefit or other plan, other than a Multiemployer Plan, established or maintained by, or for which there is an obligation to make contributions by or there is any liability, contingent or otherwise with respect to any Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA or subject to Section 412 of the Code.

Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.

Pledge Agreement” means that certain Pledge Agreement dated as of July 31, 2014 executed by Parent in favor of Administrative Agent, for the ratable benefit of the Secured Parties.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Pledged Collateral” has the meaning given to the term “Collateral” in the Pledge Agreement.

Portion” means any principal amount of any Loan bearing interest based upon the Base Rate or the Adjusted Eurodollar Rate.

Power Purchase Agreement” means an enforceable power purchase agreement between a Host Customer and a Borrower, either directly or as a result of a prior assignment to a Borrower, which assignment is in form and substance satisfactory to Administrative Agent, whereby such Host Customer agrees to purchase electricity from such Borrower-generated by a Solar Panel System installed on the Host Customer’s property.

Prime Rate” means the rate of interest per annum publicly announced from time to time by Texas Capital Bank as its prime rate in effect at its Principal Office; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. Such rate is set by Texas Capital Bank as a general reference rate of interest, taking into account such factors as Texas Capital Bank may deem appropriate; it being understood that many of Texas Capital Bank’s commercial or other loans are priced in relation to such rate, that it is not necessarily the lowest or best rate actually charged to any customer and that Texas Capital Bank may make various commercial or other loans at rates of interest having no relationship to such rate. If the Prime Rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Principal Office” means the principal office of Administrative Agent, presently located at the address set forth on Schedule 12.11.

Principal Payment Date” means the first Business Day of each and every January, April, July and October during the term of this Agreement.

Prohibited Transaction” means any transaction set forth in Section 406 of ERISA or Section 4975 of the Code.

Property” of a Person means any and all property, whether real, personal, tangible, intangible or mixed, of such Person, or any other assets owned, operated or leased by such Person.

Public Lender” has the meaning set forth in Section 12.11(e).

Qualified ECP Guarantor” means, at any time, each Obligated Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act or any regulation promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualified Parent Credit Facility” means a revolving credit facility, term credit facility or similar financing arrangement entered into after the Closing Date by Parent or Intermediate Holdco as a borrower thereunder, the proceeds of which are to be used for general corporate purposes, that meets the following criteria: (a) the sum of the aggregate commitments and funds

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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advanced under such Qualified Parent Credit Facility shall at all times be at least $75,000,000, (b) the maturity date of such Qualified Parent Credit Facility shall be at least one-hundred and eighty (180) days after the Maturity Date, (c) such Qualified Parent Credit Facility shall be secured by, among other assets, the Pledged Collateral owned directly or indirectly by Parent, and shall require as a condition precedent to closing of such Qualified Parent Credit Facility, the release of the Administrative Agent’s Liens on the Pledged Collateral, (d) such Qualified Parent Credit Facility shall not be secured by any assets of any Borrower or any Subsidiary, (e) no Borrower nor any Subsidiary shall provide any credit support or have any obligations with respect to such Qualified Parent Credit Facility, (f) all Debt arising under such Qualified Parent Credit Facility shall be non-recourse to Borrowers and their respective Subsidiaries, and (g) such Qualified Parent Credit Facility shall not contain any provisions which (x) directly or indirectly prohibit Borrower, any of its Subsidiaries, or any Obligated Party from creating or incurring a Lien on any of the Collateral to secure the Obligations or (y) directly or indirectly prohibit any Subsidiary or any Borrower to make any payments, directly or indirectly, to any Borrower.

Rebate” means any rebate by an electric distribution company or Governmental Authority as an inducement to install or use a Solar Panel System, paid upon such Solar Panel System being placed in service.

Recipient” means Administrative Agent and any Lender, as applicable.

Register” means a register for the recordation of the names and addresses of Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time.

Related Indebtedness” means any and all indebtedness paid or payable by Borrowers to Administrative Agent or any Lender pursuant to any Loan Document other than any Note.

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, as to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, disbursement, leaching, or migration of Hazardous Materials into the indoor or outdoor environment or into or out of property owned by such Person, including, without limitation, the movement of Hazardous Materials through or in the air, soil, surface water, ground water, or Property.

Remedial Action” means all actions required to (a) clean up, remove, treat, or otherwise address Hazardous Materials in the indoor or outdoor environment, (b) prevent the Release or threat of Release or minimize the further Release of Hazardous Materials so that they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care.

Removal Effective Date” has the meaning set forth in Section 11.6(b).

Replacement Rate” has the meaning set forth in Section 3.3(b).

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Reportable Event” means any of the events set forth in Section 4043 of ERISA.

Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 66 2/3% of the Total Credit Exposures of all Lenders; provided that, if there are less than three Lenders, subject to the last sentence of Section 12.10, Required Lenders shall be all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

Resignation Effective Date” has the meaning set forth in Section 11.6(a).

Responsible Officer” means the chief executive officer, president, chief financial officer, or treasurer of an Obligated Party or any Person designated by a Responsible Officer to act on behalf of a Responsible Officer; provided that such designated Person may not designate any other Person to be a Responsible Officer. Any document delivered hereunder that is signed by a Responsible Officer of an Obligated Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of Obligated Party.

RICO” means the Racketeer Influenced and Corrupt Organization Act of 1970.

Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any Sanctions.

Sanctioned Person” means, at any time, any Person (a) listed on OFAC’s most current List of Specially Designated Nationals and Blocked Persons List available at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx or as otherwise published from time to time or any similar list enforced by any other relevant sanctions authority (b) operating, organized or resident in a Sanctioned Country or (c) owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).

Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC, the U.S. Department of the Treasury or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant sanctions authority with governmental authority over the Obligated Parties and their Subsidiaries.

SEC” means the U.S. Securities and Exchange Commission, or any successor agency.

Secured Parties” means the collective reference to Administrative Agent, each Lender, each Bank Product Provider, and any other Person the Obligations owing to which are, or are purported to be, secured by the Collateral under the terms of the Security Documents.

Security Agreement” means the amended and restated security agreement of even date herewith executed by Borrowers in favor of Administrative Agent, for the ratable benefit of the Secured Parties.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Security Documents” means the Security Agreement, the Pledge Agreement and each and every other security agreement, pledge agreement, mortgage, deed of trust, control agreement or other collateral security agreement required by or delivered to Administrative Agent from time to time that purport to create a Lien in favor of any of the Secured Parties to secure payment or performance of the Obligations or any portion thereof.

Solar Panel System” means a photovoltaic system, including photovoltaic panels, racks, wiring and other electrical devices, conduit, weatherhousings, hardware, one or more inverters, remote monitoring equipment, connectors, meters, disconnects and other current devices.

Solvent” means, with respect to any Person, as of any date of determination, that the fair value of the assets of such Person (at fair valuation) is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date, that the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the probable liability of such Person on its debts as such debts become absolute and matured, and that, as of such date, such Person will be able to pay all liabilities of such Person as such liabilities mature and such Person does not have unreasonably small capital with which to carry on its business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability discounted to present value at rates believed to be reasonable by such Person acting in good faith.

SREC” means a solar renewable energy certificate representing any and all environmental credits, benefits, emissions reductions, offsets and allowances, howsoever entitled, that are created or otherwise arise from a Solar Panel System’s generation of electricity, including, but not limited to, a solar renewable energy certificate issued to comply with a State’s renewable portfolio standard.

Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one (1) and the denominator of which is the number one (1) minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors to which Administrative Agent is subject with respect to the Adjusted Eurodollar Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board of Governors). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Rate Portions shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

STW Lien” means that certain Lien on assets of STW Holdings, LLC filed by the State of Hawaii, Department of Taxation (filing #A70100578) on March 12, 2019 relating to the reconciliation of general excise taxes for tax years 2013-2015 in an aggregate amount of $110,676.88; provided that such Lien is being contested by STW Holdings in good faith and by appropriate proceedings and reserves for the payment of which are being maintained in accordance with GAAP and for which no steps or proceedings to enforce such Lien have been initiated.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

27


Subsidiary” means (a) any corporation of which at least a majority of the outstanding shares of stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by a Borrower or one or more of other Subsidiaries or by a Borrower and one or more of such Subsidiaries, and (b) any other entity (i) of which at least a majority of the ownership, equity or voting interest is at the time directly or indirectly owned or controlled by one or more of a Borrower and other Subsidiaries and (ii) which is treated as a subsidiary in accordance with GAAP.

Sunnova LV3-HI” means Sunnova Lease Vehicle 3-HI, LLC, a Delaware limited liability company.

Swap Obligations” means obligations to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Texas Capital Bank” means Texas Capital Bank, National Association, a national banking association, and its successors and assigns.

Total Credit Exposure” means, as to any Lender at any time, the sum of (a) the unused Commitment and (b) the Outstanding Amount of the Loans of such Lender at such time.

Total Outstandings” means, at any time, the aggregate Outstanding Amount of Loans of all Lenders at such time.

Type” means, with respect to a Portion, its character as a Eurodollar Rate Portion or a Base Rate Portion.

UCC” means Chapters 1 through 11 of the Texas Business and Commerce Code.

Unfunded Pension Liability” means the excess, if any, of (a) the funding target as defined under Section 430(d) of the Code without regard to the special at-risk rules of Section 430(i) of the Code, over (b) the value of plan assets as defined under Section 430(g)(3)(A) of the Code determined as of the last day of each calendar year, without regard to the averaging which may be allowed under Section 310(g)(3)(B) of the Code and reduced for any prefunding balance or funding standard carryover balance as defined and provided for in Section 430(f) of the Code.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

28


U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate” has the meaning specified in Section 3.4(g)(ii)(B)(3).

Withholding Agent” means each Borrower and Administrative Agent.

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.2 Accounting Matters.

(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited financial statements described in Section 6.2, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Debt of Borrower Representative and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.

(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth herein, and either Borrower Representative or the Required Lenders shall so request, Administrative Agent, Lenders and Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrowers shall provide to Administrative Agent and Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

Section 1.3 ERISA Matters. If, after the date hereof, there shall occur, with respect to ERISA, the adoption of any applicable law, rule, or regulation, or any change therein, or any change in the interpretation or administration thereof by the PBGC or any other Governmental Authority, then either Borrowers or Required Lenders may request a modification to this Agreement solely to preserve the original intent of this Agreement with respect to the provisions hereof applicable to ERISA, and the parties to this Agreement shall negotiate in good faith to complete such modification.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

29


Section 1.4 Other Definitional Provisions. All definitions contained in this Agreement are equally applicable to the singular and plural forms of the terms defined. The words “hereof”, “herein”, and “hereunder” and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, 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. Terms used herein that are defined in the UCC, unless otherwise defined herein, shall have the meanings specified in the UCC. Any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document). Any reference to any law shall include all statutory and regulatory 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 or supplemented from time to time. Words denoting gender shall be construed to include the masculine, feminine and neuter, when such construction is appropriate; and specific enumeration shall not exclude the general but shall be constructed as cumulative; the word “or” is not exclusive; the word “including” (in its various forms) means “including, without limitation”; in the computation of periods of time, the word “from” means “from and including” and the words “to” and “until” mean “to but excluding”; and all references to money refer to the legal currency of the United States of America.

Section 1.5 Interpretative Provision. For purposes of Section 10.1, a breach of a financial covenant contained in Article 9 shall be deemed to have occurred as of any date of determination thereof by Borrowers, the Required Lenders or as of the last date of any specified measurement period, regardless of when the financial statements or the Compliance Certificate reflecting such breach are delivered to Administrative Agent.

Section 1.6 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to central time (daylight or standard, as applicable).

Section 1.7 Other Loan Documents. The other Loan Documents, including the Security Documents, contain representations, warranties, covenants, defaults and other provisions that are in addition to and not limited by, or a limitation of, similar provisions of this Agreement. Such provisions in such other Loan Documents may be different or more expansive than similar provisions of this Agreement and neither such differences nor such more expansive provisions shall be construed as a conflict.

Section 1.8 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware Law (or any comparable event under a different jurisdiction’s Laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

30


ARTICLE 2

THE COMMITMENTS AND CREDIT EXTENSIONS

Section 2.1 The Loans.

(a) The Borrowing. Subject to the terms and conditions of this Agreement, each Lender severally agrees to make on the Closing Date a term loan (each such loan, a “Loan”) to Borrowers in an aggregate principal amount for such Lender equal to such Lender’s Commitment. The Commitment of each Lender shall automatically terminate on the Closing Date immediately after the Borrowing. Borrowers may not borrow, prepay and reborrow the Loans.

(b) Borrowing Procedure.

(i) With respect to the Borrowing, on the Closing Date each Lender’s Loans (as defined in and outstanding under the Existing Credit Agreement as of the Closing Date after giving effect to the Closing Date Principal Payment) shall hereby be restructured, rearranged, renewed, extended and continued as such Lender’s Loans under this Agreement without the necessity of any cash settlement or delivery of a Borrowing Request.

(ii) After the Borrowing, each conversion of a Portion from one Type to the other, and each continuation of a Eurodollar Rate Portion shall be made upon Borrower Representative’s irrevocable notice to Administrative Agent, which may be given by telephone. Each such notice must be received by Administrative Agent not later than 11:00 a.m. three (3) Business Days prior to the requested date of any conversion to or continuation of a Eurodollar Rate Portion or of any conversion of a Eurodollar Rate Portion to a Base Rate Portion. Each telephonic notice by Borrower Representative pursuant to this Section 2.1(b) must be confirmed promptly by delivery to Administrative Agent of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of Borrower Representative. Each conversion to or continuation of a Eurodollar Rate Portion shall be in a principal amount of $1,000,000 or a whole multiple of $50,000 in excess thereof. Each conversion to a Base Rate Portion shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof; provided that a conversion to a Base Rate Portion may be in a lesser amount equal to the Total Outstandings at such time. Each Borrowing Request (whether telephonic or written) shall specify (A) whether Borrower Representative is requesting a conversion of Portions from one Type to the other, or a continuation of Portions, (B) the applicable Borrowers, (C) the requested date of the conversion or continuation, as the case may be (which shall be a Business Day), (D) the principal amount of Portions to be converted or continued, (E) the Type of Portions to which existing Portions are to be converted, and (F) if applicable, the duration of the Interest Period with respect thereto. If Borrower Representative fails to specify a Type of Portion in a Borrowing Request or if Borrower Representative fails to give a timely notice requesting a conversion or continuation, then the applicable Portions shall be made as, or converted to, Base

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

31


Rate Portions. Any such automatic conversion to Base Rate Portions shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Portions. If Borrower Representative requests the conversion to, or continuation of a Eurodollar Rate Portion in any such Borrowing Request, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.

(c) Funding. The Borrowing shall be funded as provided in Section 2.1(b)(i).

(d) Continuations and Conversions. Except as otherwise provided herein, a Eurodollar Rate Portion may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Portion. During the existence of a Default, (i) no Loans may be converted to or continued as Eurodollar Rate Portions without the consent of the Required Lenders and (ii) unless repaid, each Eurodollar Rate Portion shall be converted to a Base Rate Portion at the end of the Interest Period applicable thereto.

(e) Notifications. Following receipt of a Borrowing Request, Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Portions, and if no timely notice of a conversion or continuation is provided by Borrower Representative, Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Portions as described in Section 2.1(b). Administrative Agent shall promptly notify Borrower Representative and Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Portions upon determination of such interest rate. At any time that Base Rate Portions are outstanding, Administrative Agent shall notify Borrower Representative and Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the public announcement of such change.

(f) Interest Periods. After giving effect to the Borrowing, all conversions of Portions from one Type to the other, and all continuations of Portions as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to Eurodollar Rate Portions.

Section 2.2 Fees. Borrowers agree to pay to Administrative Agent and Arranger, for the account of Administrative Agent, Arranger and each Lender, as applicable, fees, in the amounts and on the dates set forth in the Fee Letter.

Section 2.3 Payments Generally; Administrative Agents Clawback.

(a) General. All payments of principal, interest, and other amounts to be made by Borrowers under this Agreement and the other Loan Documents shall be made to Administrative Agent for the account of Administrative Agent or the pro rata accounts of the applicable Lenders, as applicable, at the Principal Office in Dollars and immediately available funds, without setoff, deduction, or counterclaim, and free and clear of all taxes at the time and in the manner provided herein. Payments by check or

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

32


draft shall not constitute payment in immediately available funds until the required amount is actually received by Administrative Agent in full. Payments in immediately available funds received by Administrative Agent in the place designated for payment on a Business Day prior to 12:00 p.m. at such place of payment shall be credited prior to the close of business on the Business Day received, while payments received by Administrative Agent on a day other than a Business Day or after 12:00 p.m. on a Business Day shall not be credited until the next succeeding Business Day. If any payment of principal or interest on the Notes shall become due and payable on a day other than a Business Day, then such payment shall be made on the next succeeding Business Day. Any such extension of time for payment shall be included in computing interest which has accrued and shall be payable in connection with such payment. Administrative Agent is hereby authorized upon notice to Borrowers to charge the account of any Borrower maintained with Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder.

(b) Reserved.

(c) Payments by Borrowers; Presumption by Administrative Agent. Unless Administrative Agent shall have received notice from Borrower Representative prior to the date on which any payment is due to Administrative Agent for the account of the applicable Lenders hereunder that Borrowers will not make such payment, Administrative Agent may assume that Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders the amount due. In such event, if Borrowers have not in fact made such payment, then each applicable Lender, as applicable, severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation.

Section 2.4 Evidence of Debt.

(a) The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business; provided that such Lender or Administrative Agent may, in addition, request that such Loans be evidenced by the Notes. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Borrowing made to Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrowers hereunder to pay any amount owing with respect to the Obligations.

(b) In the event of any conflict between the accounts and records maintained by Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

33


Section 2.5 Interest; Payment Terms.

(a) Payment of Interest. The unpaid principal amount of each Portion of Loans shall, subject to the following sentence and Section 2.5(g), bear interest at the applicable Interest Rate. If at any time such rate of interest would exceed the Maximum Rate but for the provisions thereof limiting interest to the Maximum Rate, then any subsequent reduction shall not reduce the rate of interest on the Loans below the Maximum Rate until the aggregate amount of interest accrued on the Loans equals the aggregate amount of interest which would have accrued on the Loans if the interest rate had not been limited by the Maximum Rate. All accrued but unpaid interest on the principal balance of the Loans shall be payable on each Interest Payment Date, provided that interest accruing at the Default Interest Rate pursuant to Section 2.5(g) shall be payable on demand.

(b) Payment of Principal. The unpaid principal balance of all Loans shall be due and payable in quarterly installments each Principal Payment Date in an amount equal to the percentages set forth below of the Outstanding Amount of Loans as of the Closing Date (after giving effect to the Borrowing) (which quarterly installment amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.6(d)(vii)):

 

Date

   Percentage  

7/1/19, 10/1/19, 1/1/20, 4/1/20, 7/1/20, 10/1/20 and 1/1/21

     0.7375

; provided, however, that on the Maturity Date, whether by acceleration or otherwise, the final principal repayment installment of the Loans shall be due and payable and in any event shall be in an amount equal to the aggregate principal amount of all Loans outstanding on such date.

(c) Application. Except as expressly provided herein to the contrary, all payments on the Obligations under the Loan Documents shall be applied in the following order of priority: (i) the payment or reimbursement of any expenses, costs or obligations (other than the Outstanding Amount thereof and interest thereon) for which Borrowers shall be obligated or Administrative Agent or any Lender shall be entitled pursuant to the provisions of this Agreement, the Notes or the other Loan Documents; (ii) the payment of accrued but unpaid interest thereon; and (iii) the payment of the principal installments due on the Loans in the inverse order of maturity. If an Event of Default exists under this Agreement, the Notes or under any of the other Loan Documents, any such payment shall be applied as provided in Section 10.3 below.

(d) Computation Period. Interest on the Loans and all other amounts payable by Borrowers hereunder on a per annum basis shall be computed on the basis of a 365-day year or 366-day year, as the case may be, and the actual number of days elapsed (including the first day but excluding the last day). In computing the number of

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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days during which interest accrues, the day on which funds are initially advanced shall be included regardless of the time of day such advance is made, and the day on which funds are repaid shall be included unless repayment is credited prior to the close of business on the Business Day received. Each determination by Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

(e) Unconditional Payment. Each Borrower is and shall be obligated to pay all principal, interest and any and all other amounts which become payable under any of the Loan Documents absolutely and unconditionally and without any abatement, postponement, diminution or deduction whatsoever and without any reduction for counterclaim or setoff whatsoever. If at any time any payment received by Administrative Agent hereunder shall be deemed by a court of competent jurisdiction to have been a voidable preference or fraudulent conveyance under any Debtor Relief Law, then the obligation to make such payment shall survive any cancellation or satisfaction of the Obligations under the Loan Documents and shall not be discharged or satisfied with any prior payment thereof or cancellation of such Obligations, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions hereof, and such payment shall be immediately due and payable upon demand.

(f) Partial or Incomplete Payments. Remittances in payment of any part of the Obligations under the Loan Documents other than in the required amount in immediately available funds at the place where such Obligations are payable shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by Administrative Agent in full in accordance herewith and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practice of the collecting bank or banks. Acceptance by Administrative Agent of any payment in an amount less than the full amount then due shall be deemed an acceptance on account only, and the failure to pay the entire amount then due shall be and continue to be an Event of Default.

(g) Default Interest Rate. For so long as any Event of Default exists, regardless of whether or not there has been an acceleration of the Loans, and at all times after the maturity of the Loans (whether by acceleration or otherwise), and in addition to all other rights and remedies of Administrative Agent or Lenders hereunder, (i) interest shall accrue on the Outstanding Amount of the Loans at the Default Interest Rate and (ii) interest shall accrue on any past due amount (other than the outstanding principal balance) at the Default Interest Rate, and such accrued interest shall be immediately due and payable. Each Borrower acknowledges that it would be extremely difficult or impracticable to determine Administrative Agent’s or Lenders’ actual damages resulting from any late payment or Event of Default, and such accrued interest are reasonable estimates of those damages and do not constitute a penalty.

Section 2.6 Prepayments.

(a) [Reserved].

(b) [Reserved].

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

35


(c) Voluntary Prepayments. Subject to the conditions set forth below, Borrowers shall have the right, at any time and from time to time upon at least three (3) Business Days prior written notice to Administrative Agent, to prepay the principal of the Loans in full or in part. If there is a prepayment of all or any portion of the principal of the Loans, whether voluntary or because of acceleration or otherwise, such prepayment shall also include (x) any and all accrued but unpaid interest on the amount of principal being so prepaid through and including the date of prepayment, plus any other sums which have become due to Lenders under the other Loan Documents on or before the date of prepayment, but which have not been fully paid.

(d) Mandatory Prepayment of Loans.

(i) Concurrently with any Disposition permitted by Section 8.8(c) and Section 8.8(d), Borrowers shall use 100% of the net cash proceeds of such Disposition that are not intended to be used to purchase other Solar Panel Systems to replace such Solar Panel Systems within 90 days from the date of such disposition to prepay the outstanding principal of the Loans, which prepayment shall be applied to be applied in accordance with clause (vii) below.

(ii) Concurrently with the issuance by any Borrower or any Subsidiary of any of its stock or other equity interests (other than to another Obligated Party), Borrowers shall prepay the Loans in the amount equal to 100% of the net cash proceeds thereof, which prepayment shall be applied in accordance with clause (vii) below.

(iii) Concurrently with the incurrence or issuance by any Borrower or any Subsidiary of any Debt (other than Debt expressly permitted to be incurred or issued pursuant to Section 8.1), Borrowers shall prepay the Loans in an amount equal to 100% of the net cash proceeds thereof, which prepayment shall be applied to be applied in accordance with clause (vii) below.

(iv) Concurrently with any Extraordinary Receipt, Borrowers shall prepay the Loans in an amount equal to 100% of the net cash proceeds thereof other than net proceeds that are intended to be used to repair, restore or replace the equipment, fixed assets or real property in respect of which such net cash proceeds were received to the extent that such repair, restoration or replacement is permitted under Section 7.5(c), which prepayment shall be applied to be applied in accordance with clause (vii) below.

(v) All net cash proceeds retained by Borrowers under clauses (i) and (iv) above shall be maintained in the Depository Account or such other segregated depository account maintained with the Administrative Agent in the name of Borrowers, and if such net cash proceeds are not used for the purposes and within the time frames provided under clauses (i) and (iv) above (or in the case of clause (iv) within the time frame provided in Section 7.5(c)), such proceeds shall be promptly paid to Administrative Agent to be applied in accordance with clause (vii) below.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(vi) If at any time the Total Outstandings exceeds the Maximum Loan Amount at such time, then Borrowers shall immediately prepay the entire amount of such excess to Administrative Agent, for the ratable account of Lenders, which prepayment shall be applied in accordance with clause (vii) below.

(vii) Any prepayment of Loans pursuant to this Section 2.6(d) shall be applied to the unpaid scheduled installment payments of the Loans in the inverse order of maturity.

(viii) Borrowers shall prepay the Loans on each Principal Payment Date in an amount equal to one-hundred percent (100%) of Excess Cash as of such Principal Payment Date, which prepayment shall be applied in accordance with clause (vii) above.

ARTICLE 3

TAXES, YIELD PROTECTION AND INDEMNITY

Section 3.1 Increased Costs.

(a) Increased Costs Generally. If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted Eurodollar Rate);

(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, Borrowers will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

37


(b) Capital or Liquidity Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time, upon delivery by Lender to Borrower Representative of the certificate described in Section 3.1(c), Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 3.1(a) or (b) and delivered to Borrower Representative, shall be conclusive absent manifest error. Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.1 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that Borrowers shall not be required to compensate a Lender pursuant to this Section 3.1 for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender notifies Borrower Representative of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) -month period referred to above shall be extended to include the period of retroactive effect thereof).

Section 3.2 Illegality. If any Lender determines that any law or regulation has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to Borrowers through Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Portions or to convert Base Rate Portions to Eurodollar Rate Portions shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Portions the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Portions of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies Administrative Agent and Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) Borrowers

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

38


shall, upon demand from such Lender (with a copy to Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Portions of such Lender to Base Rate Portions (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Portions to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Portions and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.

Section 3.3 Inability to Determine Rates.

(a) Subject to clause (b) below, if (i) Administrative Agent or the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Portion or a conversion to or continuation thereof that (A) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Portion, (B) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Portion or in connection with an existing or proposed Base Rate Portion, (C) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Portion does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Portion, (D) ICE has ceased to calculate the Eurodollar Rate, or (E) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Portion or in connection with an existing or proposed Base Rate Portion does not accurately reflect the rate available to the Lenders in the London interbank market, or (ii) by reason of any Change in Law any Lender would become subject to restrictions on the amount of a category of liabilities or assets which it may hold and notifies Administrative Agent of same, Administrative Agent will promptly so notify Borrowers and each Lender. Thereafter, (x) the obligation of Lenders to make or maintain Eurodollar Rate Portions shall be suspended, and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until Administrative Agent (upon the instruction of the Required Lenders) revokes such notice or a Replacement Rate and replacement benchmark spread has been established pursuant to Section 3.3(b). Upon receipt of such notice, Borrowers may revoke any pending request for the conversion to or continuation of Eurodollar Rate Portions or, failing that, will be deemed to have converted such request into a request for the conversion to Base Rate Portions in the amount specified therein

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

39


(b) If at any time Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) any of the circumstances set forth in clause (a)(i) or clause (a)(ii) have arisen and such circumstances are unlikely to be temporary or (ii) any of the circumstances set forth in (a)(i) or clause (a)(ii) have not arisen but (x) ICE or the Alternative Reference Rates Committee convened by the Board of Governors has announced a commercial loan index as an alternative to the Eurodollar Rate and commercial banks in the United States are using such alternative loan index for new commercial loans, (y) the Eurodollar Rate is no longer being widely used by commercial banks as a loan index in the United States for new commercial loans similar to the Facility, or (z) a Governmental Authority having jurisdiction over Administrative Agent has made a public statement identifying a specific date after which the Eurodollar Rate shall no longer be used for determining interest rates for new commercial loans originating in the United States, then Administrative Agent and Borrowers may, to the extent practicable (as determined by Administrative Agent to be generally in accordance with similar situations in other transactions in which it is serving as administrative agent or otherwise consistent with market practice), establish a replacement interest rate (the “Replacement Rate” provided that, if the Replacement Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement) and a replacement benchmark spread, and Borrowers and Administrative Agent shall enter into an amendment to this Agreement to reflect such Replacement Rate and replacement benchmark spread or such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 12.10, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment.

Section 3.4 Taxes.

(a) Defined Terms. For purposes of this Section, the term “applicable law” includes FATCA.

(b) Payment Free of Taxes. Any and all payments by or on account of any obligation of Borrowers under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrowers shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.4) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c) Payment of Other Taxes by Borrowers. Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

40


(d) Indemnification by Borrowers. Borrowers shall indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.4) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower Representative by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e) Indemnification by Lenders. Each Lender shall severally indemnify Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that Borrowers have not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of Borrowers to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.8 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Administrative Agent to such Lender from any other source against any amount due to Administrative Agent under this Section 3.4(e).

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrowers to a Governmental Authority pursuant to this Section 3.4, Borrowers shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative Agent.

(g) Status of Lenders.

(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Borrowers and Administrative Agent, at the time or times reasonably requested by Borrower Representative or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower Representative or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower Representative or Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower Representative or Administrative Agent as will enable

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

41


Borrower Representative or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two (2) sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.4(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in such Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing, in the event that a Borrower is a U.S. Person,

(A) any Lender that is a U.S. Person shall deliver to Borrower Representative and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower Representative or Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower Representative and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower Representative or Administrative Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or IRS Form W-8BEN-E, if applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or IRS Form W-8BEN-E, if applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2) executed originals of IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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“10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN (or IRS Form W-8BEN-E, if applicable); or

(4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or IRS Form W-8BEN-E, if applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower Representative and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower Representative or Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower Representative or Administrative Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower Representative and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower Representative or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower Representative or Administrative Agent as may be necessary for Borrower Representative and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower Representative and Administrative Agent in writing of its legal inability to do so.

(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.4 (including by the payment of additional amounts pursuant to this Section 3.4), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.4 with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 3.4(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.4(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 3.4(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 3.4(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i) Survival. Each party’s obligations under this Section 3.4 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 3.5 Compensation for Losses. Upon demand of any Lender (with a copy to Administrative Agent) from time to time, Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(a) any continuation, conversion, payment or prepayment of any Eurodollar Rate Portion on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or

(b) any failure by Borrowers (for a reason other than the failure of such Lender to lend a Eurodollar Rate Portion) to prepay, borrow, continue or convert any Eurodollar Rate Portion on the date or in the amount notified by Borrower Representative; or

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

44


(c) any assignment of a Eurodollar Rate Portion on a day other than the last day of the Interest Period therefor as a result of a request by Borrower Representative pursuant to Section 3.6(b);

including any actual loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by Borrowers to the Lenders under this Section 3.5, each Lender shall be deemed to have funded each Eurodollar Rate Portion made by it at the Adjusted Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Portion was in fact so funded.

Section 3.6 Mitigation of Obligations; Replacement of Lenders.

(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.1, or requires Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.4, or gives notice pursuant to Section 3.2, then such Lender shall (at the request of Borrower Representative) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.1 or Section 3.4 or the need for notice pursuant to Section 3.2, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) Replacement of Lenders. If any Lender requests compensation under Section 3.1, or if Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.4 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.6(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrowers may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.8), all of its interests, rights (other than its existing rights to payments pursuant to Section 3.1 or Section 3.4) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i) Borrowers shall have paid to Administrative Agent the assignment fee (if any) specified in Section 12.8;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(ii) such Lender shall have received payment of an amount equal to the Outstanding Amount of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.5) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrowers (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for compensation under Section 3.1 or payments required to be made pursuant to Section 3.4, such assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with applicable Laws; and

(v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply.

Section 3.7 Survival. All of Borrowers’ obligations under this Article 3 shall survive termination of the Commitments, repayment of all other Obligations hereunder, and resignation of Administrative Agent.

ARTICLE 4

SECURITY

Section 4.1 Collateral. To secure full and complete payment and performance of the Obligations, each Borrower shall, and shall cause the other Obligated Parties to, execute and deliver or cause to be executed and delivered all of the Security Documents required by Administrative Agent covering the Collateral. Each Borrower shall execute and cause to be executed such further documents and instruments, including without limitation, UCC financing statements, as Administrative Agent, in its reasonable discretion, deems necessary or desirable to create, evidence, preserve, and perfect its liens and security interests in the Collateral and maintain the priority thereof as required by the Loan Documents.

Section 4.2 Setoff. If an Event of Default exists, Administrative Agent and each Lender shall have the right to set off against the Obligations under the Loan Documents, at any time and without notice to Borrowers, any and all deposits (general or special, time or demand, provisional or final) or other sums at any time credited by or owing from Administrative Agent or such Lender to any Borrower whether or not the Obligations under the Loan Documents are then due; provided that in the event that any Defaulting Lender shall exercise any such right of setoff: (a) all amounts so set off shall be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 12.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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trust for the benefit of Administrative Agent and Lenders; and (b) such Defaulting Lender shall provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations under the Loan Documents owing to such Defaulting Lender as to which it exercised such right of setoff. Each amount set off shall be paid to Administrative Agent for application to the Obligations under the Loan Documents in the order set forth in Section 10.3. As further security for the Obligations, each Borrower hereby grants to Administrative Agent and each Lender a security interest in all money, instruments, and other Property of such Borrower now or hereafter held by Administrative Agent or such Lender, including, without limitation, Property held in safekeeping. In addition to Administrative Agent’s and each Lender’s right of setoff and as further security for the Obligations, each Borrower hereby grants to Administrative Agent and each Lender a security interest in all deposits (general or special, time or demand, provisional or final) and other accounts of such Borrower now or hereafter on deposit with or held by Administrative Agent or such Lender and all other sums at any time credited by or owing from Administrative Agent or such Lender to such Borrower. The rights and remedies of Administrative Agent and each Lender hereunder are in addition to other rights and remedies (including, without limitation, other rights of setoff) which Administrative Agent or such Lender may have.

Section 4.3 Authorization to File Financing Statements. Each Borrower and each other Obligated Party that has granted a security interest in connection herewith authorizes Administrative Agent to complete and file, from time to time, financing statements naming such Borrower or such other Obligated Party, as applicable, as debtor.

ARTICLE 5

CONDITIONS PRECEDENT

Section 5.1 Closing Date; The Borrowing . The obligations of Lenders hereunder (including their obligation to make the Loans pursuant to Section 2.1(a)) shall not become effective until the Closing Date, the occurrence of which is subject to the condition precedent that Administrative Agent shall have received all of the following, each dated or dated as of (unless otherwise indicated or otherwise specified by Administrative Agent) the Closing Date, in form and substance satisfactory to Administrative Agent:

(a) Credit Agreement. Counterparts of this Agreement executed by each party hereto;

(b) Resolutions. Resolutions of the Board of Directors (or other governing body) of each Borrower and each other Obligated Party, certified by the Secretary or an Assistant Secretary (or a Responsible Officer or other custodian of records) of such Person which authorize the execution, delivery, and performance by such Person of this Agreement and the other Loan Documents to which such Person is or is to be a party;

(c) Incumbency Certificate. A certificate of incumbency certified by a Responsible Officer of each Obligated Party certifying the names of the individuals or other Persons authorized to sign this Agreement and each of the other Loan Documents to which such Obligated Party is or is to be a party (including the certificates contemplated herein) on behalf of such Person together with specimen signatures of such individual Persons;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(d) Certificate Regarding Consents and Approvals. A certificate of a Responsible Officer of each Obligated Party either (i) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Obligated Party and the validity against such Obligated Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (ii) stating that no such consents, licenses or approvals are so required;

(e) Closing Certificate. A certificate signed by a Responsible Officer of the Borrower Representative certifying that: (i) no Default shall have occurred and be continuing, or would result from or after giving effect to the Borrowing; (ii) no Material Adverse Event shall have occurred and no circumstance shall exist that could be a Material Adverse Event; and (iii) all of the representations and warranties contained in Article 6 and in the other Loan Documents shall be true and correct on and as of the Closing Date (except to the extent that such representations and warranties expressly refer to an earlier date, in which case they shall be true and correct as of such earlier date);

(f) Constituent Documents. The Constituent Documents and all amendments thereto for each Borrower and each other Obligated Party that is not a natural person, with the formation documents included in the Constituent Documents being certified as of a date acceptable to Administrative Agent by the appropriate government officials of the state of incorporation or organization of such Borrower and each other Obligated Party, and all such Constituent Documents being accompanied by certificates that such copies are complete and correct, given by an authorized representative acceptable to Administrative Agent;

(g) Governmental Certificates. Certificates of the appropriate government officials of the state of incorporation or organization of each Borrower and each other Obligated Party as to the existence and good standing of such Borrower and such other Obligated Party, each dated within thirty (30) days prior to the Closing Date;

(h) Notes. The Notes executed by each Borrower in favor of each Lender requesting Notes (it being hereby acknowledged that Notes have been previously delivered to the Lenders in connection with the Existing Credit Agreement and shall continue in full force and effect in connection with this Agreement);

(i) Security Documents; Consents to Assignment. The Security Agreement executed by each Borrower party thereto and each other Security Document required by the Administrative Agent (it being hereby acknowledged that each of the Pledge Agreement and each Consent to Assignment has been previously delivered to the Administrative Agent in connection with the Existing Credit Agreement and shall continue in full force and effect in connection with this Agreement);

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(j) Financing Statements. Satisfactory evidence that UCC financing statements reflecting each Borrower and the other Obligated Parties, as debtors, and Administrative Agent, as secured party, which are required to grant a Lien which secures the Obligations and covering such Collateral as Administrative Agent may request are on file against each Borrower and each other Obligated Party in the appropriate filing offices;

(k) Lien Searches. The results of UCC, tax lien and judgment lien searches showing all financing statements and other documents or instruments on file against each Borrower and each other Obligated Party in the appropriate filing offices, such search to be as of a date no more than thirty (30) days prior to the Closing Date, and reflecting no Liens against any of the intended Collateral other than Liens in favor of the Administrative Agent under the Existing Credit Agreement;

(l) Opinions of Counsel. A favorable opinion of legal counsel to Borrowers and Parent as to such matters as Administrative Agent may reasonably request;

(m) Due Diligence. Receipt of all due diligence materials reasonably requested by Administrative Agent, in each case satisfactory to Administrative Agent;

(n) Attorneys Fees and Expenses. Evidence that the costs and expenses (including reasonable attorneys’ fees) referred to in Section 12.1, to the extent invoiced, shall have been paid in full by Borrowers;

(o) Closing Fees. Evidence that (i) all fees required to be paid to Administrative Agent or Arranger on or before the Closing Date have been paid, and (ii) all fees required to be paid to Lenders on or before the Closing Date have been paid; and

(p) Closing Date Principal Payment. Evidence that Borrowers have paid the Closing Date Principal Payment.

(q) Additional Documentation. Such additional approvals, opinions, or documents as Administrative Agent or its legal counsel may reasonably request.

For purposes of determining compliance with the conditions set forth in this Section 5.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or be acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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ARTICLE 6

REPRESENTATIONS AND WARRANTIES

To induce Administrative Agent and Lenders to enter into this Agreement, and to make the Borrowing hereunder, each Borrower represents and warrants to Administrative Agent and Lenders that:

Section 6.1 Entity Existence. Each Borrower and its Subsidiaries (a) is duly incorporated or organized, as the case may be, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation or organization; (b) has all requisite power and authority to own its assets and carry on its business as now being or as proposed to be conducted; and (c) is qualified to do business in all jurisdictions in which the nature of its business makes such qualification necessary and where failure to so qualify could result in a Material Adverse Event. Each Borrower and the other Obligated Parties has the power and authority to execute, deliver, and perform its obligations under this Agreement and the other Loan Documents to which it is or may become a party.

Section 6.2 Financial Statements; Etc. The financial statements of Borrower Representative delivered to Administrative Agent are true and correct in all material respects, have been prepared in accordance with GAAP, and fairly and accurately present, on a consolidated basis, the financial condition of Borrower Representative and its Subsidiaries as of the respective dates indicated therein and the results of operations for the respective periods indicated therein. Neither Borrower Representative nor any of its Subsidiaries has any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments, unrealized or anticipated losses from any unfavorable commitments except as referred to or reflected in such financial statements. No Material Adverse Event has occurred since the effective date of the financial statements referred to in this Section 6.2. All projections delivered by Borrower Representative to Administrative Agent and Lenders have been prepared in good faith, with care and diligence and using assumptions that are reasonable under the circumstances at the time such projections were prepared and delivered to Administrative Agent and Lenders and all such assumptions are disclosed in the projections. Other than Debt permitted by Section 8.1, Borrower Representative and each Subsidiary have no Debt.

Section 6.3 Action; No Breach. The execution, delivery, and performance by each of Borrower and each other Obligated Party of this Agreement and the other Loan Documents to which such Person is or may become a party and compliance with the terms and provisions hereof and thereof have been duly authorized by all requisite action on the part of such Person and do not and will not (a) violate or conflict with, or result in a breach of, or require any consent under (i) the Constituent Documents of such Person, (ii) any applicable law, rule, or regulation or any order, writ, injunction, or decree of any Governmental Authority or arbitrator, or (iii) any agreement or instrument to which such Person is a party or by which it or any of its Properties is bound or subject which could result in a Material Adverse Event, or (b) constitute a default under any such agreement or instrument which could result in a Material Adverse Event, or result in the creation or imposition of any Lien upon any of the revenues or assets of such Person.

Section 6.4 Operation of Business. Each Borrower and its Subsidiaries possesses all licenses, permits, consents, authorizations, franchises, patents, copyrights, trademarks, and trade names, or rights thereto, necessary to conduct its respective businesses substantially as now conducted and as presently proposed to be conducted, and no Borrower nor any of its Subsidiaries is in violation of any valid rights of others with respect to any of the foregoing which could result in a Material Adverse Event.

Section 6.5 Litigation and Judgments. Except as specifically disclosed in Schedule 6.5 as of the date hereof, there is no action, suit, investigation, or proceeding before or by any Governmental Authority or arbitrator pending, or to the knowledge of any Borrower, threatened against or affecting any Borrower, any of its Subsidiaries, or any other Obligated Party that could, if adversely determined, result in a Material Adverse Event. There are no outstanding judgments against any Borrower, any of its Subsidiaries, or any other Obligated Party.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 6.6 Rights in Properties; Liens.

(a) Each Borrower and its Subsidiaries has good and indefeasible title to or valid leasehold interests in its respective Properties, including the Properties reflected in the financial statements described in Section 6.2, and none of the Properties of any Borrower or any of its Subsidiaries is subject to any Lien, except Permitted Liens.

(b) No Obligated Party owns or leases any real Property.

Section 6.7 Enforceability. This Agreement constitutes, and the other Loan Documents to which any Borrower or any other Obligated Party is a party, when delivered, shall constitute legal, valid, and binding obligations of such Person, enforceable against such Person in accordance with their respective terms, except as limited by Debtor Relief Laws.

Section 6.8 Approvals. No authorization, approval, or consent of, and no filing or registration with, any Governmental Authority or third party is or will be necessary for the execution, delivery, or performance by any Borrower or any other Obligated Party of this Agreement and the other Loan Documents to which such Person is or may become a party or the validity or enforceability thereof.

Section 6.9 Taxes. Each Borrower and its Subsidiaries has filed all tax returns (federal, state, and local) required to be filed, including all income, franchise, employment, Property, and sales tax returns, and has paid all of their respective liabilities for taxes, assessments, governmental charges, and other levies that are due and payable, other than taxes the payment of which is being contested in good faith and by appropriate proceedings and reserves for the payment of which are being maintained in accordance with GAAP. No Borrower knows of any pending investigation of any Borrower or any of its Subsidiaries by any taxing authority or of any pending but unassessed tax liability of any Borrower or any of its Subsidiaries. No Borrower nor any Subsidiary thereof is party to any tax sharing agreement.

Section 6.10 Use of Proceeds; Margin Securities. The proceeds of the Borrowing shall be used by Borrowers solely to refinance the Indebtedness outstanding under the Existing Credit Agreement as provided in Section 2.1(b)(i). No Borrower or any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U, or X of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock. No part of the proceeds of any Loan will be used by any Borrowers directly, or to the knowledge of any Borrowers, indirectly, to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Country or a Sanctioned Person, or in any other manner that will result in any violation of any Anti-Terrorism Laws, Anti-Corruption Laws or any Sanctions.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 6.11 ERISA. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of Borrowers, nothing has occurred which would prevent, or cause the loss of, such qualification. No application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan. There are no pending or, to the knowledge of Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan. There has been no Prohibited Transaction or violation of the fiduciary responsibility rules with respect to any Plan. No ERISA Event has occurred or is reasonably expected to occur. No Plan has any Unfunded Pension Liability. No Obligated Party or ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA). No Obligated Party or ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan. No Obligated Party or ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.

Section 6.12 Disclosure. No statement, information, report, representation, or warranty made in writing by any Borrower or any other Obligated Party in this Agreement or in any other Loan Document or otherwise furnished in writing to Administrative Agent or any Lender in connection with this Agreement or any of the transactions contemplated hereby contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements herein or therein not misleading. There is no fact known to any Borrower which is a Material Adverse Event, or which might in the future be a Material Adverse Event that has not been disclosed in writing to Administrative Agent and each Lender.

Section 6.13 Subsidiaries. As of the Closing Date, no Borrower has any Subsidiaries other than those listed on Schedule 6.13 and Schedule 6.13 sets forth the jurisdiction of incorporation or organization of each such Subsidiary existing as of the Closing Date and the percentage of the applicable Borrower’s ownership interest in such Subsidiary. Each Subsidiary formed after the Closing Date is in compliance with Section 7.13. All of the outstanding capital stock or other equity interests of each Subsidiary has been validly issued, is fully paid, and is nonassessable. There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments of any nature relating to any equity interests of any Borrower or any Subsidiary.

Section 6.14 Agreements. No Borrower or any of its Subsidiaries is a party to any indenture, loan, or credit agreement, or to any lease or other agreement or instrument, or subject to any charter or corporate or other organizational restriction, in each case which could result in a Material Adverse Event. No Borrower or any of its Subsidiaries is in default in any respect in the performance, observance, or fulfillment of any of the obligations, covenants, or conditions contained in any agreement or instrument material to its business to which it is a party which could result in a Material Adverse Event.

Section 6.15 Compliance with Laws. No Borrower or any of its Subsidiaries is in violation in any material respect of any law, rule, regulation, order, or decree of any Governmental Authority or arbitrator.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 6.16 Regulated Entities. No Borrower or any of its Subsidiaries is (a) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940 or (b) subject to regulation under any other federal or state statute, rule or regulation limiting its ability to incur Debt, pledge its assets or perform its obligations under the Loan Documents. No Borrower or any of its Subsidiaries is an EEA Financial Institution.

Section 6.17 Environmental Matters.

(a) Each Borrower and its Subsidiaries, and all of its respective Properties, assets, and operations are in compliance with all Environmental Laws. No Borrower is aware of, nor has any Borrower received notice of, any past, present, or future conditions, events, activities, practices, or incidents which may interfere with or prevent the compliance or continued compliance of such Borrower and its Subsidiaries with all Environmental Laws;

(b) Each Borrower and its Subsidiaries has obtained all permits, licenses, and authorizations that are required under applicable Environmental Laws, and all such permits are in good standing and such Borrower and its Subsidiaries are in compliance with all of the terms and conditions of such permits;

(c) To the knowledge of Borrowers, no Hazardous Materials exist on, about, or within or have been used, generated, stored, transported, disposed of on, or Released from any of the Properties or assets of any Borrower or any of its Subsidiaries. The use which each Borrower and its Subsidiaries make and intend to make of their respective Properties and assets will not result in the use, generation, storage, transportation, accumulation, disposal, or Release of any Hazardous Material on, in, or from any of their Properties or assets;

(d) No Borrower or any of its Subsidiaries or any of their respective currently or previously owned or leased Properties or operations is subject to any outstanding or threatened order from or agreement with any Governmental Authority or other Person or subject to any judicial or docketed administrative proceeding with respect to (i) failure to comply with Environmental Laws, (ii) Remedial Action, or (iii) any Environmental Liabilities arising from a Release or threatened Release;

(e) To the knowledge of Borrowers, there are no conditions or circumstances associated with the currently or previously owned or leased Properties or operations of any Borrower or any of its Subsidiaries that could reasonably be expected to give rise to any Environmental Liabilities;

(f) No Borrower or any of its Subsidiaries is a treatment, storage, or disposal facility requiring a permit under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., regulations thereunder or any comparable provision of state law. Each Borrower and its Subsidiaries are in compliance with all applicable financial responsibility requirements of all Environmental Laws;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(g) No Borrower or any of its Subsidiaries has filed or failed to file any notice required under applicable Environmental Law reporting a Release; and

(h) No Lien arising under any Environmental Law has attached to any property or revenues of any Borrower or any of its Subsidiaries.

Section 6.18 Intellectual Property. All material Intellectual Property owned or used by each Borrower and its Subsidiaries is listed, together with application or registration numbers, where applicable, in Schedule 6.18. Each Person identified on Schedule 6.18 owns, or is licensed to use, all Intellectual Property necessary to conduct its business as currently conducted except for such Intellectual Property the failure of which to own or license could not be a Material Adverse Event. Each Person identified on Schedule 6.18 will maintain the patenting and registration of all Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or other appropriate Governmental Authority, and each Person identified on Schedule 6.18 will promptly, but in any event within ten (10) Business Days following its acquisition thereof, patent or register, as the case may be, all new Intellectual Property and notify Administrative Agent in writing five (5) Business Days prior to filing any such new patent or registration.

Section 6.19 Anti-Corruption Laws; Sanctions; Etc. Each Obligated Party and each Subsidiary of each Obligated Party is and will remain in compliance in all material respects with all Anti-Corruption Laws and applicable Sanctions. No Obligated Party and no Subsidiary of an Obligated Party is a Sanctioned Person.

Section 6.20 Patriot Act. The Obligated Parties and each of their Subsidiaries are in compliance, in all material respects, with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B Chapter V, as amended), and any other enabling legislation or executive order relating thereto, (b) the Patriot Act, and (c) all other federal or state Laws relating to “know your customer” (collectively, the “Anti-Terrorism Laws”).

Section 6.21 Insurance. The properties of each Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of such Borrower, in such amounts with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Borrower or the applicable Subsidiary operates.

Section 6.22 Solvency. Each Borrower and each Obligated Party is Solvent and have not entered into any transaction with the intent to hinder, delay or defraud a creditor.

Section 6.23 Security Documents. The provisions of the Security Documents are effective to create in favor of Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable Lien (subject to Permitted Liens) on all right, title and interest of the respective Obligated Parties party thereto in the Collateral. Except for filings completed prior to the Closing Date and as contemplated hereby and by the Security Documents, no filing or other action will be necessary to perfect such Liens in Collateral.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 6.24 Businesses. Each Borrower is presently engaged directly or through its Subsidiaries in the business of financing residential Solar Panel Systems by means of Host Customer Agreements and other activities reasonably related or ancillary thereto.

Section 6.25 Labor Matters. There are no labor controversies pending, or to the knowledge of Borrowers, threatened against any Borrower or any of its Subsidiaries which could result in a Material Adverse Event.

Section 6.26 Common Enterprise. Each Borrower is engaged in the businesses set forth in Section 6.24 as of the Closing Date. These operations require financing on a basis such that the credit supplied can be made available from time to time to each Borrower and various of its Subsidiaries, as required for the continued successful operation of the Borrowers and their Subsidiaries as a whole. Each Borrower has requested the Lenders to make credit available hereunder for the purposes set forth in Section 6.10. Each Borrower and each of its Subsidiaries expects to derive benefit (and the Board of Directors (or other similar governing body) of such Borrower and each of its Subsidiaries has determined that such Borrower and such Subsidiary, as applicable, may reasonably be expected to derive benefit), directly or indirectly, from a portion of the credit extended by the Lenders hereunder, both in its separate capacity and as a member of the group of companies, since the successful operation and condition of each Borrower and each of its Subsidiaries is dependent on the continued successful performance of the functions of the group as a whole.

Section 6.27 Inventory. All inventory of each Borrower and its Subsidiaries has been and will be produced in compliance with all applicable Laws, including, without limitation, the minimum wage and overtime provisions of the Fair Labor Standards Act (29 U.S.C. §§ 201-219).

ARTICLE 7

AFFIRMATIVE COVENANTS

Each Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding or any Lender has any Commitment hereunder:

Section 7.1 Reporting Requirements. Borrower Representative will furnish to Administrative Agent (with copies for each Lender):

(a) Annual Financial Statements. As soon as available, and in any event within one hundred twenty (120) days after the last day of each fiscal year of Borrower Representative, a copy of the annual audit report of Borrower Representative and its Subsidiaries for such fiscal year containing, on a consolidated basis, balance sheets and statements of income, retained earnings, and cash flow as of the end of such fiscal year and for the twelve (12)-month period then ended, in each case setting forth in comparative form the figures for the preceding fiscal year, all in reasonable detail and audited and certified by an independent certified public accountant of recognized standing acceptable to Administrative Agent, to the effect that such report has been prepared in accordance with GAAP and containing no material qualifications or limitations on scope;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(b) Quarterly Financial Statements. As soon as available, and in any event within sixty (60) days after the last day of each fiscal quarter of each fiscal year of Borrower Representative, a copy of an unaudited financial report of Borrower Representative and its Subsidiaries as of the end of such fiscal quarter and for the portion of the fiscal year then ended, containing, on a consolidated and consolidating basis, balance sheets and statements of income, retained earnings, and cash flow, in each case setting forth in comparative form the figures for the corresponding period of the preceding fiscal year, all in reasonable detail certified by a Responsible Officer of Borrower Representative to have been prepared in accordance with GAAP and to fairly and accurately present (subject to year-end audit adjustments) the financial condition and results of operations of Borrower Representative and its Subsidiaries, on a consolidated and consolidating basis, as of the dates and for the periods indicated therein;

(c) NPV Report. As soon as available, and in any event within thirty (30) days after the last day of each calendar month, an NPV Report;

(d) Compliance Certificate. Concurrently with the delivery of each of the financial statements referred to in Section 7.1(a) and Section 7.1(b), a Compliance Certificate (i) stating that to the best knowledge of the Responsible Officer of Borrower Representative executing same, no Default has occurred and is continuing, or if a Default has occurred and is continuing, a statement as to the nature thereof and the action which is proposed to be taken with respect thereto, (ii) showing in reasonable detail the calculations demonstrating compliance with the covenants set forth in Article 9 and (iii) containing such other certifications set forth therein. For any financial statements delivered electronically by a Responsible Officer in satisfaction of the reporting requirements set forth in clause (a) or (b) preceding that are not accompanied by the required Compliance Certificate, that Responsible Officer shall nevertheless be deemed to have certified the factual matters described in this clause (d) with respect to such financial statements; however, such deemed certificate shall not excuse or be construed as a waiver of Borrower Representative’s obligation to deliver the required Compliance Certificate;

(e) Projections. As soon as available, but in any event not later than ninety (90) days after the beginning of each fiscal year of Borrower Representative, forecasts prepared by management of Borrower Representative, in form and substance satisfactory to Administrative Agent, of consolidated balance sheets and statements of income or operations and cash flows of Borrower Representative and its Subsidiaries on a quarterly basis for such fiscal year (including the fiscal year in which the Maturity Date occurs);

(f) Budget. As soon as available, but in any event not later than ninety (90) days after the beginning of each fiscal year of Borrower Representative, an internally prepared operating budget for such fiscal year, in form and substance satisfactory to the Administrative Agent;

(g) Tax Return. As soon as available, but in any event within thirty (30) days after the same has been filed, a copy of Borrower Representative’s annual federal income tax return for the preceding calendar year (or any requests for extension of time to file such tax return);

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(h) Host Customer Agreement Receivables Aging and Status Report. As soon as available, and in any event within 30 days after the end of each calendar month, a Host Customer Agreement receivables aging report, classifying each Borrower’s Host Customer Agreement receivables in categories of 0-30, 31-60, 61-90 and over 90 days from date of invoice, and in such form and detail as Administrative Agent shall reasonably require, and upon request of Administrative Agent a Host Customer Agreement status report containing such other information and in such detail as Administrative Agent shall reasonably require, and in each case certified by the chief financial officer of Borrower Representative;

(i) Management Letters. Promptly upon receipt thereof, a copy of any management letter or written report submitted to any Borrower or any of its Subsidiaries by independent certified public accountants with respect to the business, condition (financial or otherwise), operations, prospects, or Properties of any Borrower or any of its Subsidiaries;

(j) Notice of Litigation. Promptly after the commencement thereof, notice of all actions, suits, and proceedings before any Governmental Authority or arbitrator affecting any Borrower or any of its Subsidiaries which, if determined adversely to such Borrower or such Subsidiary, could be a Material Adverse Event;

(k) Notice of Default. As soon as possible and in any event within five days after Borrower has knowledge, or in the exercise of reasonably due diligence should have had knowledge, of the occurrence of any Default, a written notice setting forth the details of such Default and the action that Borrowers have taken and proposes to take with respect thereto;

(l) ERISA Reports. Promptly after the filing or receipt thereof, copies of all reports, including annual reports, and notices which any Borrower or ERISA Affiliate files with or receives from the PBGC, the IRS, or the U.S. Department of Labor under ERISA with respect to any Plan; as soon as possible and in any event within five days after any Borrower or any ERISA Affiliate knows or has reason to know that any ERISA Event or Prohibited Transaction has occurred with respect to any Plan, a certificate of the chief financial officer of Borrower Representative setting forth the details as to such ERISA Event or Prohibited Transaction and the action that such Borrower proposes to take with respect thereto; annually, copies of the notice described in Section 101(f) of ERISA that any Borrower or ERISA Affiliate receives with respect to a Plan or Multiemployer Plan;

(m) Reports to Other Creditors. Promptly after the furnishing thereof, copies of any statement or report furnished to any other party pursuant to the terms of any indenture, loan, or credit or similar agreement and not otherwise required to be furnished to Administrative Agent pursuant to any other clause of this Section 7.1;

(n) Notice of Material Adverse Event. As soon as possible and in any event within five (5) days after the occurrence thereof, written notice of any event or circumstance that could result in a Material Adverse Event;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(o) Expense Report. Concurrently with the delivery of each of the financial statements referred to in Section 7.1(b), Borrower Representative shall deliver to Administrative Agent a written report (which may be included with the Compliance Certificate delivered with such financial statements in accordance with Section 7.1(d)) showing expenses paid from funds in the Depository Account in the fiscal quarter most recently ended, in each case, in form and substance satisfactory to Administrative Agent and certified by a financial officer of Borrower Representative;

(p) Proxy Statements Etc. As soon as available, one (1) copy of each special report, registration statement, or prospectus filed by Parent or any of its Subsidiaries with any national securities exchange or the SEC;

(q) SEC Investigations. Promptly after receipt thereof by Parent or any of its Subsidiaries, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of Parent or any of its Subsidiaries;

(r) General Information. Promptly, such other information concerning any Borrower, any of its Subsidiaries, or any other Obligated Party as Administrative Agent, or any Lender through Administrative Agent, may from time to time reasonably request; and

(s) Qualified Parent Credit Facility.

(i) At least five (5) Business Days prior to the closing of any Qualified Parent Credit Facility, substantially final drafts of all material agreements to be executed in connection with such Qualified Parent Credit Facility;

(ii) On the closing date of any Qualified Parent Credit Facility; a certificate of a Responsible Officer of Parent, dated as of such closing date, certifying that (x) all material agreements executed in connection with such Qualified Parent Credit Facility have been delivered to Administrative Agent and that all such agreements are accurate and complete and no material right or obligation of any party thereto has been modified, amended or waived since the date of delivery thereof except as has been disclosed to Administrative Agent in writing, and (y) such Qualified Parent Credit Facility meets the criteria set forth in the definition of “Qualified Parent Credit Facility”; and

(iii) Promptly, but in any event not later than five (5) days after the occurrence thereof, written notice of any event of default that has occurred and is continuing under a Qualified Parent Credit Facility.

Notwithstanding the foregoing, all documents required to be delivered pursuant to Section 7.1(p) or Section 7.1(q) shall be deemed to have been delivered on the date on the date (x) on which Parent provides a link thereto on Parent’s website or (y) on which such documents are posted on Parent’s behalf on an Internet or intranet, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent).

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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All representations and warranties set forth in the Loan Documents with respect to any financial information concerning any Obligated Party shall apply to all financial information delivered to Administrative Agent by Borrower Representative, such Obligated Party, or any Person purporting to be a Responsible Officer of Borrower Representative or such Obligated Party or other representative of such Borrower or such Obligated Party regardless of the method of such transmission to Administrative Agent or whether or not signed by such Borrower, such Obligated Party, or such Responsible Officer or other representative, as applicable.

Section 7.2 Maintenance of Existence; Conduct of Business. Each Borrower shall, and shall cause each of its Subsidiaries to, preserve and maintain its existence and all of its leases, privileges, licenses, permits, franchises, qualifications, and rights that are necessary or desirable in the ordinary conduct of its business, except to the extent a failure to so preserve and maintain could not result in a Material Adverse Event. Each Borrower shall, and shall cause each of its Subsidiaries to, conduct its business in an orderly and efficient manner in accordance with good business practices.

Section 7.3 Maintenance of Properties. Each Borrower shall, and shall cause each of its Subsidiaries to, maintain, keep, and preserve all of its Properties (tangible and intangible) necessary or useful in the proper conduct of its business in good working order and condition.

Section 7.4 Taxes and Claims. Each Borrower shall, and shall cause each of its Subsidiaries to, pay or discharge at or before maturity or before becoming delinquent (a) all taxes, levies, assessments, and governmental charges imposed on it or its income or profits or any of its Property, and (b) all lawful claims for labor, material, and supplies, which, if unpaid, might become a Lien upon any of its Property; provided, however, that no Borrower or any of its Subsidiaries shall be required to pay or discharge any tax, levy, assessment, or governmental charge which is being contested in good faith by appropriate proceedings diligently pursued, and for which adequate reserves in accordance with GAAP have been established.

Section 7.5 Insurance.

(a) Each Borrower shall, and shall cause each of its Subsidiaries to, maintain insurance with financially sound and reputable insurance companies in such amounts and covering such risks as is usually carried by entities engaged in similar businesses and owning similar Properties in the same general areas in which such Borrower and its Subsidiaries operate, provided that in any event each Borrower will maintain and cause each of its Subsidiaries to maintain property insurance and comprehensive general liability insurance reasonably satisfactory to Administrative Agent. Each insurance policy covering Collateral shall name Administrative Agent as loss payee and each insurance policy covering liabilities shall name Administrative Agent as additional insured, and each such insurance policy shall provide that such policy will not be cancelled or reduced without 30 days prior written notice to Administrative Agent.

(b) All proceeds of insurance which are Extraordinary Receipts shall be subject to Section 2.6(d)(iv).

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(c) Upon notice to the Administrative Agent, Borrowers may apply the net proceeds of a casualty or condemnation (each a “Loss”) to the repair, restoration, or replacement of the assets suffering such Loss, so long as (i) such repair, restoration, or replacement is completed within ninety (90) days after the date of such Loss (or such longer period of time agreed to in writing by the Administrative Agent in its sole discretion), and (ii) such Loss did not cause an Event of Default. Borrower shall promptly provide Administrative Agent with such documentation and information as may be reasonably requested by Administrative Agent from time to time relating any assets suffering a Loss and the repair, restoration, or replacement thereof.

(d) If at any time any Building or Manufactured (Mobile) Home (as defined in applicable Flood Insurance Regulations) included in the Collateral is or has become located in an area designated as a “flood hazard area” under applicable Flood Insurance Regulations, each Borrower shall, and shall cause each of its Subsidiaries to, (i) provide Administrative Agent with a description of such Building or Manufactured (Mobile) Home, including the address and legal description thereof and such other information as may be requested by Administrative Agent to obtain a flood determination or otherwise satisfy its obligations under applicable Flood Insurance Regulations, (ii) obtain flood insurance in such amounts as required by applicable Flood Insurance Regulations and (iii) provide evidence in form and substance satisfactory to Administrative Agent of such flood insurance to Administrative Agent.

Section 7.6 Inspection Rights. At any reasonable time and from time to time upon at least three Business Days’ written notice unless an Event of Default has occurred and is continuing in which event no prior notice shall be required, each Borrower shall, and shall cause each of its Subsidiaries to, permit representatives of Administrative Agent or any Lender (a) to examine, inspect, review, evaluate and make physical verifications and appraisals of the inventory and other Collateral in any manner and through any medium that Administrative Agent or such Lender considers advisable, (b) to examine, copy, and make extracts from its books and records, (c) to visit and inspect its Properties, and (d) to discuss its business, operations, and financial condition with its officers, employees, and independent certified public accountants, in each instance, at Borrowers’ expense provided that unless an Event of Default has occurred and is continuing Borrowers shall only be responsible for such costs and expenses to the extent reasonable and not more than one time per fiscal year. Nothing set forth herein in this Section 7.6 shall give Administrative Agent or any Lender the independent right to inspect any Collateral or Property located on the premises of a Host Customer.

Section 7.7 Keeping Books and Records. Each Borrower shall, and shall cause each of its Subsidiaries to, maintain proper books of record and account in which full, true, and correct entries in conformity with GAAP shall be made of all dealings and transactions in relation to its business and activities.

Section 7.8 Compliance with Laws. Each Borrower shall, and shall cause each of its Subsidiaries to, comply in all material respects with all applicable Laws (including, without limitation, all Anti-Terrorism Laws, Anti-Corruption Laws and applicable Sanctions) and decrees of any Governmental Authority or arbitrator.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 7.9 Compliance with Agreements. Each Borrower shall, and shall cause each of its Subsidiaries to, comply in all material respects with all agreements, contracts, and instruments binding on it or affecting its Properties or business, except to the extent a failure to so comply could not result in a Material Adverse Event.

Section 7.10 Further Assurances. Each Borrower shall, and shall cause each of its Subsidiaries and each other Obligated Party to, execute and deliver such further agreements and instruments and take such further action as may be reasonably requested by Administrative Agent or any Lender to carry out the provisions and purposes of this Agreement and the other Loan Documents and to create, preserve, and perfect the Liens of Administrative Agent in the Collateral.

Section 7.11 ERISA. Each Borrower shall, and shall cause each of its Subsidiaries to, comply with all minimum funding requirements, and all other material requirements, of ERISA, if applicable, so as not to give rise to any liability thereunder.

Section 7.12 Depository Relationship. Subject also to Section 7.17, each Borrower shall, and shall cause each of its Subsidiaries to, use Texas Capital Bank as its principal depository bank and such Borrower shall, and shall cause each of its Subsidiaries to, maintain Texas Capital Bank as its principal depository bank, including for the maintenance of business, cash management, operating and administrative deposit accounts.

Section 7.13 Subsidiaries. Each Borrower shall notify Administrative Agent at the time that any Person becomes a Subsidiary, and promptly thereafter (and any event within ten (10) days), (i) execute and deliver to Administrative Agent all Security Documents, stock certificates, stock powers and other agreements and instruments as may be requested by Administrative Agent to ensure that Administrative Agent has a perfected security interest in all ownership interests held by any Borrower in such Subsidiary, and (ii) cause such Person to (a) become a Guarantor by executing and delivering to Administrative Agent a Guaranty Agreement, (b) execute and deliver all Security Documents requested by Administrative Agent pledging to Administrative Agent for the benefit of the Secured Parties all of its Property (subject to such exceptions as Administrative Agent may permit) and take all actions required by Administrative Agent to grant to Administrative Agent for the benefit of Secured Parties a perfected first priority security interest in such property, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be reasonably requested by Administrative Agent, and (c) deliver to Administrative Agent such other documents and instruments as Administrative Agent may reasonably require, including appropriate favorable opinions of counsel to such Person in form, content and scope reasonably satisfactory to Administrative Agent.

Section 7.14 Interest Rate Protection. Borrowers shall maintain, at all times, Hedge Agreements to the extent necessary to provide that at least 50% of the Outstanding Amount of the Loans then outstanding are subject to either a fixed interest rate or interest rate protection for a period of not less than three years, which Hedge Agreements shall be with a counterparty reasonably satisfactory to Administrative Agent and have terms and conditions reasonably satisfactory to Administrative Agent.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 7.15 Reserved.

Section 7.16 Separateness. Each Borrower will (i) own no assets, and not engage in any business, other than the assets and transactions specifically contemplated or permitted by the Loan Documents, (ii) not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent, other than as contemplated or permitted hereby, (iii) not make any loans or advances to any third party, and shall not acquire obligations or securities of any Affiliate in each case except as permitted by the Loan Documents, (iv) pay its debts and liabilities (including, as applicable shared personnel and overhead expenses) only from its own assets, (v) do all things necessary under applicable law and its Constituent Documents to observe organizational formalities and to preserve its existence, and will not amend, modify or otherwise change its Constituent Document, or suffer the same to be amended, modified or otherwise changed in each case, in a manner that would be materially adverse to the Administrative Agent and the Lenders in the reasonable discretion of the Administrative Agent, without the prior written consent of the Administrative Agent, (vi) maintain all of its books, records, financial statements (other than as required by GAAP) and bank accounts separate from those of any Affiliate, (vii) be, and at all times will hold itself out to the public and to its Host Customers as, a legal entity separate and distinct from any other entity, including its members, correct any known misunderstanding regarding its status as a separate entity, conduct business in its own name, not identify itself as a division or part of its members and maintain and utilize separate invoices and checks, (viii) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, (ix) not engage in or suffer any dissolution, winding-up, liquidation, consolidation or merger in whole or in part except as permitted by the Loan Documents, (x) not commingle its funds or other assets with those of any Affiliate or any other Person, (xi) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person, (xii) not and will not hold itself out to be responsible for the debts or obligations of any other Person, and (xiii) be formed and organized solely for the purpose of holding, directly or indirectly, the Collateral and not hold or own any assets other than the Collateral and assets related thereto; provided, however, that notwithstanding the foregoing, the property of the Borrowers may be covered by the insurance policies of Borrower Representative (or an Affiliate), so long as loss payable endorsements benefitting the applicable Borrowers are provided.

Section 7.17 Lockbox.

(a) Each Borrower shall maintain under such written agreements as Administrative Agent requires, as security for the Loans, a lockbox (“Lockbox”) and depository account in the name of Borrowers (“Depository Account”). All Collections will be deposited directly into the Depository Account, and Borrowers shall (or the Administrative Agent which is hereby authorized to do so shall) transfer to the Depository Account any funds which are Collections but which have been deposited into any other depository account of Borrowers at Administrative Agent.

(b) Each Borrower agrees that on each Principal Payment Date and, at the Borrowers’ option to the extent necessary with respect to payments to be made pursuant to priorities First through Twelfth below, on any other Business Day, in each case, occurring prior to an Event of Default it shall apply all funds in the Depository Account which are Collections to the Borrowers’ obligations then due and owing in the following order of priority:

First, to Taxes;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Second, to fees and expenses of the Administrative Agent and Lenders paid or payable by Borrowers under this Agreement;

Third, to O&M Expenses permitted under Section 8.20;

Fourth, to fees and expenses paid or payable by Borrowers to the servicer under the Master Service Agreement or under any agreement with the Backup Servicing Provider;

Fifth, to Cash Interest Expense;

Sixth, to costs and expenses arising under Hedge Agreements permitted hereunder to which Borrower Representative or any Subsidiary is a party (other than fees, expenses and liquidation and termination payments);

Seventh, to all regularly scheduled principal payments on the Loans pursuant to Section 2.5(b);

Eighth, to fees, expenses and liquidation and termination payments arising under Hedge Agreements permitted hereunder to which Borrower Representative or any Subsidiary is a party;

Ninth, to any payments (including any reimbursement obligations) in respect of Performance Guaranty Obligations permitted under Section 8.21;

Tenth, to any payments in respect of Capitalized Lease Obligations;

Eleventh, to the reimbursement of any expenses incurred by the servicer in connection with services rendered under the Master Service Agreement, including in connection with any litigation, arbitration or enforcement proceedings, audit related costs and expenses, and other costs and expenses which have been approved by Administrative Agent in its reasonable discretion, in an aggregate amount not to exceed $150,000 per fiscal year;

Twelfth, to any prepayment of the Loans in accordance with Section 2.6(c);

Thirteenth, to maintain as cash reserves in the Depository Account in an amount not to exceed $500,000; and

Last, the remaining cash balance (“Excess Cash”) to the mandatory prepayment of the Loans in accordance with Section 2.6(d)(viii).

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(c) Each Borrower agrees that upon an Event of Default, the Administrative Agent will have all right, title and interest in and to all items and funds from time to time in the Depository Account. Checks received into the Depository Account will not be considered good funds until Administrative Agent has effected final settlement with respect thereto. After an Event of Default has occurred, Administrative Agent is authorized to pay current unpaid O&M Expense and Performance Guaranty Obligations and then to apply any and all funds in the Depository Account at any time, and from time to time, to the Obligations (to the extent then due and payable) as provided for in Section 10.3. Upon written notice to Borrower Representative from Administrative Agent, each Borrower shall advise all of its Host Customers and other account debtors and tenants of all Host Customer Agreements to direct their payments to the Lockbox, at the address established by the Lockbox arrangements. All payments received into the Lockbox will be deposited into the Depository Account for disposition as set forth above in Section 7.17(b) or Section 10.3, as applicable.

Section 7.18 Backup Servicing Provider. Borrowers shall retain or cause to be retained at all times a Backup Servicing Provider reasonably acceptable to Administrative Agent; provided, however, in the event a Backup Servicing Provider resigns or otherwise must be replaced, Borrowers may operate for no more than sixty (60) days without a Backup Servicing Provider. Administrative Agent agrees that, as of the Closing Date, GreatAmerica Portfolio Services Group LLC is an acceptable Backup Servicing Provider.

Section 7.19 Permits. Borrowers shall maintain all Applicable Permits.

ARTICLE 8

NEGATIVE COVENANTS

Each Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding or any Lender has any Commitment hereunder:

Section 8.1 Debt. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, incur, create, assume, or permit to exist any Debt, except:

(a) The Obligations under the Loan Documents and Obligations existing or arising under Bank Product Agreements other than Hedge Agreements;

(b) Purchase money Debt and Capitalized Lease Obligations not to exceed $50,000 in the aggregate at any time outstanding; and

(c) Hedge Obligations existing or arising under Hedge Agreements permitted by Section 8.17.

Section 8.2 Limitation on Liens. No Borrower shall, nor shall it permit any of its Subsidiaries to, incur, create, assume, or permit to exist any Lien upon any of its Property, assets, or revenues, whether now owned or hereafter acquired, except:

(a) Existing Liens disclosed on Schedule 8.2;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(b) Liens in favor of the Secured Parties or Administrative Agent for the benefit of Secured Parties (including with respect to the Haleakala Assets such Liens in favor of Sunnova LV3-HI which have been assigned to Administrative Agent for the benefit of Secured Parties);

(c) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of any Borrower or its Subsidiaries to use such assets in their respective businesses, and none of which is violated in any material respect by existing or proposed structures or land use;

(d) Liens for taxes, assessments, or other governmental charges which are not delinquent or which are being contested in good faith and for which adequate reserves in accordance with GAAP have been established;

(e) Liens of mechanics, materialmen, warehousemen, carriers, or other similar statutory Liens securing obligations that are not yet due and are incurred in the ordinary course of business;

(f) Liens resulting from good faith deposits to secure payments of workmen’s compensation or other social security programs (other than Liens imposed by ERISA) or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, contracts (other than for payment of Debt), or leases made in the ordinary course of business; and

(g) Purchase money Liens on specific property to secure Debt used to acquire such Property and Liens securing Capitalized Lease Obligations with respect to specific leased property, in each case to the extent permitted in Section 8.1(b).

Section 8.3 Mergers, Etc. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become a party to a merger or consolidation, or purchase or otherwise acquire all or any part of the assets of any Person or any shares or other evidence of beneficial ownership of any Person, or wind-up, dissolve, or liquidate, except that (a) Borrowers may purchase from any Person Host Customer Agreements and related Solar Panel Systems in the ordinary course of business, (b) any Subsidiary may merge or consolidate with any Borrower so long as a Borrower is the surviving entity, and (c) Borrower Representative may consummate the acquisition by contribution permitted under Section 8.5(g).

Section 8.4 Restricted Payments. No Borrower shall, directly or indirectly, declare or pay any dividends or make any other payment or distribution (in cash, Property, or obligations) on account of its equity interests, or redeem, purchase, retire, call, or otherwise acquire any of its equity interests, or permit any of its Subsidiaries to purchase or otherwise acquire any equity interest of any Borrower or another Subsidiary of such Borrower, or set apart any money for a sinking or other analogous fund for any dividend or other distribution on its equity interests or for any redemption, purchase, retirement, or other acquisition of any of its equity interests, or incur any obligation (contingent or otherwise) to do any of the foregoing. For clarity and avoidance of doubt, neither the payment of O&M Expenses, nor the reimbursement to Parent for any Performance Guaranty Obligations paid by Parent, nor the making of payments or distributions from one Borrower to another Borrower shall be prohibited by this Section 8.4.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 8.5 Loans and Investments. No Borrower shall make, nor shall it permit any of its Subsidiaries to, directly or indirectly, make, hold or maintain, any advance, loan, extension of credit, or capital contribution to or investment in, or purchase any stock, bonds, notes, debentures, or other securities of, any Person, except:

(a) Existing investments described on Schedule 8.5;

(b) Readily marketable direct obligations of the United States of America or any agency thereof with maturities of one (1) year or less from the date of acquisition;

(c) Fully insured certificates of deposit with maturities of one (1) year or less from the date of acquisition issued by either (i) any commercial bank operating in the United States of America having capital and surplus in excess of $50,000,000.00 or (ii) any Lender;

(d) Commercial paper of a domestic issuer if at the time of purchase such paper is rated in one (1) of the two (2) highest rating categories of Standard and Poor’s Corporation or Moody’s Investors Service;

(e) Investments consisting of Hedge Agreements permitted under Section 8.17;

(f) Investments consisting of advances or extensions of credit in the form of accounts receivable incurred in the ordinary course of business and upon terms common in the industry for such accounts receivable, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

(g) Investments of Sunnova LV3-HI pursuant to the Haleakala Loan Documents; and

(h) Investments in any Borrower.

Section 8.6 Limitation on Issuance of Equity. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, issue, sell, assign, or otherwise dispose of (a) any of its stock or other equity interests, (b) any securities exchangeable for or convertible into or carrying any rights to acquire any of its stock or other equity interests, or (c) any option, warrant, or other right to acquire any of its stock or other equity interests, in each case, other than to a Borrower or another Subsidiary.

Section 8.7 Transactions With Affiliates. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter into any transaction, including, without limitation, the purchase, sale, or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate of such Borrower or such Subsidiary, except (a) the Master Service Agreement, (b) in the ordinary course of and

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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pursuant to the reasonable requirements of such Borrower’s or such Subsidiary’s business, pursuant to a transaction which is otherwise expressly permitted under this Agreement, and upon fair and reasonable terms no less favorable to such Borrower or such Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person not an Affiliate of such Borrower or such Subsidiary, (c) the acquisition by contribution described in Section 8.5(g) and (d) any transactions between or among Borrowers.

Section 8.8 Disposition of Assets. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly make any Disposition, except (a) Dispositions of inventory in the ordinary course of business, (b) leases of Solar Panel Systems pursuant to Lease Agreements and sales of Solar Panel Systems pursuant to EZ-Own Contracts, (c) Dispositions, for fair value, of worn-out and obsolete equipment not necessary or useful to the conduct of business (the net proceeds of which shall be used to prepay Borrowings in accordance with Section 2.6(d)), (d) Dispositions, not to exceed the lesser of (i) five percent (5%) of the EPC Cost of Assets of Borrowers and (ii) $2,500,000 in any year, of any other Property in cash for fair value (the net proceeds of which shall be held under, used to prepay Borrowings in accordance, with Section 2.6(d), and (e) Dispositions between or among Borrowers; provided, however, that Sunnova LV3-HI may not transfer to any other Borrower any of its interests in the Haleakala Assets until such time as Sunnova LV3-HI has title to the Haleakala Assets.

Section 8.9 Sale and Leaseback. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter into any arrangement with any Person pursuant to which it leases from such Person real or personal property that has been or is to be sold or transferred, directly or indirectly, by it to such Person.

Section 8.10 Prepayment of Debt. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, make any optional or voluntary payment, prepayment, repurchase or redemption of any Debt, except the Obligations under the Loan Documents.

Section 8.11 Nature of Business. No Borrower shall, nor shall it permit any of its Subsidiaries to, engage in any business other than the businesses in which they are engaged as of the date hereof or as provided in Section 6.24 hereof. Borrower shall not, and shall not permit any of its Subsidiaries to, make any material change in its credit collection policies if such change would materially impair the collectability of any Account, nor will it rescind, cancel or modify any Account except in the ordinary course of business.

Section 8.12 Environmental Protection. No Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (a) use (or permit any tenant to use) any of their respective Properties or assets for the handling, processing, storage, transportation, or disposal of any Hazardous Material, (b) generate any Hazardous Material in violation of Environmental Laws, (c) conduct any activity that is likely to cause a Release or threatened Release of any Hazardous Material in violation of Environmental Laws, or (d) otherwise conduct any activity or use any of their respective Properties or assets in any manner that is likely to violate any Environmental Law or create any Environmental Liabilities for which such Borrower or any of its Subsidiaries would be responsible.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 8.13 Accounting. No Borrower shall, nor shall it permit any of its Subsidiaries to, change its fiscal year or make any change (a) in accounting treatment or reporting practices, except as required by GAAP and disclosed to Administrative Agent and Lenders, or (b) in tax reporting treatment, except as required by law and disclosed to Administrative Agent and Lenders.

Section 8.14 Burdensome Agreements. No Borrower shall, nor shall it permit any of its Subsidiaries or any Obligated Party to, enter into or permit to exist any arrangement or agreement, other than pursuant to this Agreement or any Loan Document, which (a) directly or indirectly prohibits Borrower, any of its Subsidiaries, or any Obligated Party from creating or incurring a Lien on any of its Property, revenues, or assets, whether now owned or hereafter acquired, (b) directly or indirectly prohibits any of its Subsidiaries, or any Obligated Party to make any payments, directly or indirectly, to such Borrower by way of dividends, distributions, advances, repayments of loans, repayments of expenses, accruals, or otherwise or (c) in any way would be contravened by such Person’s performance of its obligations hereunder or under the other Loan Documents.

Section 8.15 Subsidiaries. No Borrower shall, directly or indirectly, form or acquire any Subsidiary unless such Borrower complies with the requirements of Section 7.13.

Section 8.16 Amendments of Constituent Documents. No Borrower shall, nor shall it permit any of its Subsidiaries to, amend or restate any of their respective Constituent Documents.

Section 8.17 Hedge Agreements. No Borrower shall, nor shall it permit any of its Subsidiaries to, enter into any Hedge Agreement, except (a) Hedge Agreements entered into to hedge or mitigate risks to which such Borrower or any Subsidiary of such Borrower has actual exposure which have terms and conditions reasonably acceptable to Administrative Agent, (b) Hedge Agreements required under Section 7.14, and (c) other Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any Debt of such Borrower or any of its Subsidiaries limited to the principal amount of such Debt which have terms and conditions reasonably acceptable to Administrative Agent.

Section 8.18 OFAC. No Borrower shall, nor shall it permit any of its Subsidiaries to, fail to comply with the Laws, regulations and executive orders referred to in Section 6.19 and Section 6.20.

Section 8.19 Host Customer Agreements . No Borrower shall, and no Borrower shall permit any other Person to, make any amendments to the forms of Host Customer Agreements it uses or acquires (which forms have been disclosed to and approved by Administrative Agent) which materially affects the economic terms of such Host Customer Agreements or which could reasonably be expected to lead to a Material Adverse Effect.

Section 8.20 O&M Expense; Master Services Agreement.

(a) No Borrower shall, nor shall it permit any of its Subsidiaries to, pay any O&M Expense other than those that are reasonable and customary in the market and which have been approved by Administrative Agent in its reasonable discretion. Administrative Agent hereby approves the O&M Expense as stipulated in the Master Service Agreement as in effect on the date hereof.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(b) Borrowers shall not permit any material amendments or modifications to, or any restatements of, the Master Service Agreement (or any comparable agreement with any Backup Service Provider) without Administrative Agent’s prior written consent (not to be unreasonably withheld or delayed). Borrowers shall deliver to Administrative Agent copies of all amendments, modifications and restatements to the Master Service Agreement (and any comparable agreement with any Backup Service Provider), as applicable, promptly upon the execution thereof.

Section 8.21 Performance Guaranty Obligations . No Borrower shall, nor shall it permit Parent or any of its Subsidiaries to, pay any Performance Guaranty Obligations other than those that are reasonable and customary in the market. To the extent that Parent makes any payment with respect to Performance Guaranty Obligations on behalf of Borrowers, all rights and claims of Parent to reimbursement by Borrowers for such payments, shall be subordinate, junior and subject in right of payment to Borrowers’ prior and indefeasible payment in full of all Obligations and the termination of this Agreement. Notwithstanding the foregoing, Borrowers shall be permitted to make such reimbursement payments to Parent in accordance with the waterfall in Section 7.17(b) provided that no Event of Default then exists. Borrowers agree not to make any reimbursement payments to Parent, and Parent agrees not to ask for, sue for, take, demand or accept from Borrowers by set off or in any other manner, any payment for reimbursement, or exercise any remedies in respect thereof and hereby defers all rights of subrogation, contribution or any similar right with respect thereto, unless such payment is permitted by this Section. If any amount shall be paid by or on behalf of Borrowers to Parent contrary to the provisions of this Section, such amount shall be held in trust for the benefit of Administrative Agent and shall be returned to the Depository Account for disposition as set forth above in Section 7.17(b) or Section 10.3, as applicable.

ARTICLE 9

FINANCIAL COVENANTS

Each Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding or any Lender has any Commitment hereunder:

Section 9.1 Debt Service Coverage Ratio. Borrowers shall not permit, for any four fiscal quarter period referenced in the table below, the Debt Service Coverage Ratio for such four fiscal quarter period to be less than the ratio set forth below:

 

Four Fiscal Quarter Period
End Date

   Minimum Debt Service
Coverage Ratio
 

6/30/19 and 9/30/19

     1.10 to 1.00  

12/31/19

     1.175 to 1.00  

3/31/20 and thereafter

     1.25 to 1.00  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 9.2 Right to Cure. If at the end of any fiscal quarter of the Borrower there exists an Event of Default resulting from a breach of the financial covenant set forth in Section 9.1, Borrower Representative may, subject to the terms of this paragraph and so long as there is no other Default under this Agreement or any other Loan Document, and such action is taken within ten (10) days after the date upon which financial statements for such fiscal quarter are required to be delivered pursuant to Section 7.1(a) or Section 7.1(b), as applicable, cure such Event of Default by making an Equity Cure. For purposes of determining whether the amount of the Equity Cure cures an Event of Default resulting from a breach of the financial covenant set forth in Section 9.1, the calculation shall not take into account any reduction of Debt (whether by direct payment or by netting or otherwise) which was effected as a result of the proceeds of the Equity Cure being used to repay Debt. The provisions of this paragraph may not be utilized more than two (2) times over the term of this Agreement, nor more than one (1) time per four fiscal quarter period (without consideration of any Equity Cure made under the Existing Credit Agreement), and cash equity contributions for purposes of this Section only shall not exceed the amount required to cause Borrower to be in compliance with Section 9.1. An Equity Cure may only be used to cure an Event of Default resulting from a breach of the financial covenant set forth in Section 9.1, and shall be disregarded in the calculation of Collections for any other purpose.

Section 9.3 Minimum Portfolio FICO Score. Borrowers shall at all times ensure that the minimum average FICO Score of its portfolio of Host Customer Agreements is at least [***].

Section 9.4 Minimum Book Net Worth. Commencing with the fiscal quarter ending December 31, 2018, Borrowers shall not permit Book Net Worth at the end of any fiscal quarter to be less than the minimum set forth below corresponding to the Outstanding Amount of Loans at such time; provided that in calculating Book Net Worth, with respect to any fiscal quarter, the Borrowers shall be permitted to give pro forma effect to the repayment of Debt or other liabilities occurring subsequent to the end of applicable fiscal quarter but not later than the date of delivery of each of the financial statements referred to in Section 7.1(b) for such fiscal quarter, as if such repayment had taken place prior to the end of the applicable fiscal quarter:

 

Outstanding Amount of Loans

   Minimum Book Net Worth  

$0 - $50,000,000

   $ 10,000,000  

$50,000,001 - $62,500,000

   $ 15,000,000  

$62,500,001 - $75,000,000

   $ 18,750,000  

$75,00,001 - $90,000,000

   $ 22,500,000  

$90,000,001 - $102,500,000

   $ 27,000,000  

$102,500,000 - $110,000,000

   $ 30,750,000  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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ARTICLE 10

DEFAULT

Section 10.1 Events of Default. Each of the following shall be deemed an “Event of Default”:

(a) Any Borrower shall fail to pay the Obligations under the Loan Documents or any part thereof shall not be paid when due or declared due;

(b) Any Borrower shall fail to provide to Administrative Agent and Lenders timely any notice of Default as required by Section 7.1(k) of this Agreement, Borrower Representative shall fail to provide to Administrative Agent timely any quarterly financial statements as required by Section 7.1(b), or any Borrower shall breach any provision of Section 7.2, Section 7.5, Section 7.6, Section 7.13, Section 7.14, Section 7.15, Section 7.17, Section 7.18 or Article 8 or Article 9 of this Agreement;

(c) Any representation or warranty made or deemed made by Borrower or any other Obligated Party (or any of their respective officers) in any Loan Document or in any certificate, report, notice, or financial statement furnished at any time in connection with this Agreement shall be false, misleading, or erroneous in any material respect (without duplication of any materiality qualifier contained therein) when made or deemed to have been made;

(d) Borrower Representative shall fail to provide to Administrative Agent timely any NPV Report as required by Section 7.1(c), any Compliance Certificate as required by Section 7.1(d), or any Expense Report as required by Section 7.1(o), and such failure continues for more than ten (10) Business Days following the date such failure first began;

(e) Any Borrower, any of its Subsidiaries, or any other Obligated Party shall fail to perform, observe, or comply with any covenant, agreement, or term contained in this Agreement or any other Loan Document (other than as covered by Section 10.1(a), (b) or (d)), and such failure continues for more than thirty (30) days following the date such failure first began;

(f) Any Borrower, any of its Subsidiaries, any other Obligated Party, Parent or Intermediate Holdco (if existing) shall commence a voluntary proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar official of it or a substantial part of its Property or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it or shall make a general assignment for the benefit of creditors or shall generally fail to pay its debts as they become due or shall take any corporate action to authorize any of the foregoing;

(g) An involuntary proceeding shall be commenced against any Borrower, any of its Subsidiaries, any other Obligated Party, Parent or Intermediate Holdco (if existing) seeking liquidation, reorganization, or other relief with respect to it or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar official for it or a substantial part of its Property, and such involuntary proceeding shall remain undismissed and unstayed for a period of thirty (30) days;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(h) Any Borrower, any of its Subsidiaries, or any other Obligated Party shall fail to pay when due any principal of or interest on any Debt (other than the Obligations under the Loan Documents) in the amount of $250,000 or more, or the maturity of any such Debt shall have been accelerated, or any such Debt shall have been required to be prepaid, repurchased, defeased or redeemed prior to the stated maturity thereof or any cash collateral in respect thereof to be demanded, or any event shall have occurred that permits (or, with the giving of notice or lapse of time or both, would permit) any holder or holders of such Debt or any Person acting on behalf of such holder or holders to accelerate the maturity thereof or require any such prepayment, repurchase, defeasance or redemption or any cash collateral in respect thereof to be demanded;

(i) There shall occur under any Hedge Agreement an Early Termination Date (as defined in such Hedge Agreement) resulting from (1) any event of default under such Hedge Agreement to which any Borrower or any other Obligated Party is the Defaulting Party (as defined in such Hedge Agreement), or (2) any Termination Event (as so defined) under such Hedge Agreement as to which any Borrower or any other Obligated Party is an Affected Party (as so defined) and, in either event, the Hedge Termination Value owed by such Borrower, such Obligated Party as a result thereof exceeds $250,000;

(j) This Agreement or any other Loan Document shall cease to be in full force and effect or shall be declared null and void or the validity or enforceability thereof shall be contested or challenged by any Borrower, any of its Subsidiaries, any other Obligated Party or any of their respective equity holders, or any Borrower or any other Obligated Party shall deny that it has any further liability or obligation under any of the Loan Documents, or any Lien created by the Loan Documents shall for any reason cease to be a valid, first priority perfected Lien upon any of the Collateral purported to be covered thereby;

(k) Any of the following events shall occur or exist with respect to any Borrower or any ERISA Affiliate: (i) any ERISA Event occurs with respect to a Plan or Multiemployer Plan, or (ii) any Prohibited Transaction involving any Plan; and in each case above, such event or condition, together with all other events or conditions, if any, have subjected or could in the reasonable opinion of Administrative Agent subject any Borrower or any ERISA Affiliate to any tax, penalty, or other liability to a Plan, a Multiemployer Plan, the PBGC, the IRS, the U. S. Department of Labor, or otherwise (or any combination thereof) which in the aggregate exceed or could reasonably be expected to result in a Material Adverse Event;

(l) A Change of Control shall occur;

(m) Any Borrower, any of its Subsidiaries, or any other Obligated Party, or any of their Properties, revenues, or assets, shall become subject to an order of forfeiture, seizure, or divestiture (whether under RICO or otherwise) and the same shall not have been discharged within 30 days from the date of entry thereof;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(n) Any Borrower, any of its Subsidiaries, or any other Obligated Party shall fail to discharge within a period of thirty (30) days after the commencement thereof any attachment, sequestration, or similar proceeding or proceedings involving an aggregate amount in excess of $250,000 against any of its assets or Properties;

(o) A final judgment or judgments for the payment of money in excess of $250,000 in the aggregate shall be rendered by a court or courts against any Borrower, any of its Subsidiaries, or any other Obligated Party and the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof and such Borrower, such Subsidiary, or such Obligated Party shall not, within such period of thirty (30) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal;

(p) Any Security Document shall cease to create valid perfected first priority liens (subject to Permitted Liens) on the Collateral purported to be covered thereby;

(q) Required Lenders in good faith determine that a Material Adverse Event has occurred or a circumstance exists that could reasonably be expected to result in a Material Adverse Event;

(r) The Master Service Agreement shall be in default and Borrowers fail to promptly engage the Backup Servicing Provider as the primary servicer for the Collateral; or

(s) The maturity of the Debt evidenced by a Qualified Parent Credit Facility shall have been accelerated, or any such Debt shall have been required to be prepaid (other than with respect to any regularly scheduled required prepayment or redemption or any customary mandatory prepayments provided forth therein), repurchased, defeased or redeemed prior to the stated maturity thereof; or Parent or Intermediate Holdco, as applicable, shall pledge its equity interests in Borrower Representative to any Person other than to secure the Obligations and the Debt arising under any Qualified Parent Credit Facility.

Section 10.2 Remedies Upon Default. If any Event of Default shall occur and be continuing, then Administrative Agent may, with the consent of Required Lenders, or shall, at the direction of Required Lenders, without notice do any or all of the following: (a) terminate the Commitments of Lenders, or (b) declare the Obligations under the Loan Documents or any part thereof to be immediately due and payable, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by each Borrower; provided, however, that upon the occurrence of an Event of Default under Section 10.1(f) or (g), the Commitments of Lenders shall automatically terminate, and the Obligations under the Loan Documents shall become immediately due and payable, in each case without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by each Borrower. In addition to the foregoing, if any Event of Default shall occur and be continuing, Administrative Agent may, with the consent of Required Lenders, or shall, at the direction of Required Lenders, exercise all rights and remedies available to it, and Lenders in law or in equity, under the Loan Documents, or otherwise.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 10.3 Application of Funds. After the exercise of remedies provided for in Section 10.2 (or after the Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall be applied by Administrative Agent in the following order:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Administrative Agent) payable to Administrative Agent in its capacity as such;

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to Lenders arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, and other Obligations arising under the Loan Documents, ratably among Lenders in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and constituting unpaid Bank Product Obligations, ratably among Lenders and Bank Product Providers in proportion to the respective amounts described in this clause Fourth held by them;

Fifth, to payment of that remaining portion of the Obligations, ratably among the Lenders and Bank Product Providers in proportion to the respective amounts described in this clause Fifth held by them; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Borrowers or as otherwise required by law.

Notwithstanding the foregoing, Bank Product Obligations shall be excluded from the application described above if Administrative Agent has not received written notice thereof, together with supporting documentation as Administrative Agent may request from the applicable Bank Product Provider, provided that no such notice shall be required for any Bank Product Agreement for which Administrative Agent or any Affiliate of Administrative Agent is the applicable Bank Product Provider. Each Bank Product Provider that is not a party to this Agreement that has given notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of Administrative Agent pursuant to the terms of Article 11 hereof for itself and its Affiliates as if a “Lender” party hereto.

Section 10.4 Performance by Administrative Agent. If any Borrower shall fail to perform any covenant or agreement contained in any of the Loan Documents beyond the expiration of any applicable cure periods, then Administrative Agent may perform or attempt to perform such covenant or agreement on behalf of such Borrower. In such event, Borrowers

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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shall, at the request of Administrative Agent, promptly pay to Administrative Agent any amount expended by Administrative Agent in connection with such performance or attempted performance, together with interest thereon at the Default Interest Rate from and including the date of such expenditure to but excluding the date such expenditure is paid in full. Notwithstanding the foregoing, it is expressly agreed that Administrative Agent shall not have any liability or responsibility for the performance of any covenant, agreement, or other obligation of Borrowers under this Agreement or any other Loan Document.

ARTICLE 11

AGENCY

Section 11.1 Appointment and Authority.

(a) Each of the Lenders hereby irrevocably appoints Texas Capital Bank to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article 11 are solely for the benefit of Administrative Agent and Lenders, and no Borrower or any other Obligated Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

(b) Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including for itself and its Affiliates in their capacities as potential Bank Product Providers) hereby irrevocably appoints and authorizes Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Obligated Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by Administrative Agent pursuant to Section 11.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of Administrative Agent), shall be entitled to the benefits of all provisions of this Article 11 and Article 12 (including Section 12.1(b), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

Section 11.2 Rights as a Lender. The Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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include the Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, any Borrower or any Subsidiary or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without any duty to account therefor to Lenders.

Section 11.3 Exculpatory Provisions.

(a) Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent:

(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by Required Lenders (or such other number or percentage of Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that Administrative Agent shall not be required to take any action that, in its opinion or upon the advice of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law;

(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity;

(iv) shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document unless it shall first be indemnified to its satisfaction by Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action; and

(v) does not warrant or accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate”.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(b) Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of Required Lenders (or such other number or percentage of Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.2 and Section 11.9), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. SUCH LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIABILITY ARISES FROM THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF ADMINISTRATIVE AGENT. Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to Administrative Agent in writing by Borrower Representative or a Lender.

(c) Neither Administrative Agent nor any Related Party thereof shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 5 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent.

Section 11.4 Reliance by Administrative Agent. Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of the Borrowing, that by its terms must be fulfilled to the satisfaction of a Lender, Administrative Agent may presume that such condition is satisfactory to such Lender unless Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Administrative Agent may consult with legal counsel (who may be counsel for Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

Section 11.5 Delegation of Duties. Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by Administrative Agent. Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article 11 shall apply to any such sub agent and to the Related Parties of Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of this facility as well as activities as Administrative Agent. Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 11.6 Resignation of Administrative Agent.

(a) Administrative Agent may at any time give notice of its resignation to Lenders and Borrower Representative. Upon receipt of any such notice of resignation, Required Lenders shall have the right, in consultation with Borrowers (so long as no Event of Default has occurred and is continuing), to appoint a successor, which shall be a bank with an office in Dallas, Texas, or an Affiliate of any such bank with an office in Dallas, Texas. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. After the Resignation Effective Date, the provisions of this Article 11 relating to or indemnifying or releasing Administrative Agent shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.

(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, Required Lenders may, to the extent permitted by applicable law, by notice in writing to Borrower Representative and such Person remove such Person as Administrative Agent and, in consultation with Borrowers, appoint a successor. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by Administrative Agent on behalf of Secured Parties under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such Collateral until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity, fee or expense payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrowers and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article 11, Section 12.1, and Section 12.2 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

Section 11.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither Administrative Agent nor any other Lender nor any Related Party thereto has made any representation or warranty to such Person and that no act by Administrative Agent or any other Lender hereafter taken, including any review of the affairs of Borrowers, shall be deemed to constitute any representation or warranty by Administrative Agent or any Lender to any other Lender. Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Except for notices, reports and other documents expressly required to be furnished to the Lenders by Administrative Agent hereunder, Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), or creditworthiness of Borrowers or the value of the Collateral or other Properties of Borrowers or any other Person which may come into the possession of Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

Section 11.8 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Obligated Party, Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrowers) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations under the Loan Documents that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders and Administrative Agent and their respective agents and counsel and all other amounts due Lenders and Administrative Agent under Section 12.1 or Section 12.2) allowed in such judicial proceeding; and

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Section 12.1 or Section 12.2.

Section 11.9 Collateral Matters.

(a) The Secured Parties irrevocably authorize Administrative Agent, at its option and in its discretion:

(i) to release any Lien on any property granted to or held by Administrative Agent under any Loan Document (x) upon termination of all Commitments and payment in full of all Obligations (other than (A) contingent indemnification obligations and (B) obligations and liabilities under Bank Product Agreements as to which arrangements satisfactory to the applicable Bank Product Provider shall have been made), (y) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, or (z) if approved, authorized or ratified in writing by Required Lenders or all Lenders, as applicable, under Section 12.10;

(ii) to subordinate any Lien on any property granted to or held by Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.2; and

(iii) to release any Borrower from its obligations under the Loan Documents if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.

Upon request by Administrative Agent at any time, Required Lenders will confirm in writing Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Borrower from its obligations under the Loan Documents pursuant to this Section 11.9.

(b) Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of Administrative Agent’s Lien thereon, or any certificate prepared by any Obligated Party in connection therewith, nor shall Administrative Agent be responsible or liable to Lenders for any failure to monitor or maintain any portion of the Collateral.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 11.10 Bank Product Agreements. No Bank Product Provider who obtains the benefits of Section 10.3, or any Collateral by virtue of the provisions hereof or of any Security Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, wavier or modification of the provisions hereof or of any Security Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article 11 to the contrary, Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Bank Product Obligations unless Administrative Agent has received written notice of such Bank Product Obligations, together with such supporting documentation as Administrative Agent may request, from the applicable Bank Product Provider. Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Bank Product Obligations arising under Bank Product Agreements upon termination of all Commitments and payment in full of all Obligations under the Loan Documents (other than contingent indemnification obligations).

Section 11.11 Certain ERISA Matters.

(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Administrative Agent and not, for the avoidance of doubt, to or for the benefit of Borrowers or any other Obligated Party, that at least one of the following is and will be true:

(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,

(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,

(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of subsections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or

(iv) such other representation, warranty and covenant as may be agreed in writing between Administrative Agent, in its sole discretion, and such Lender.

(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Administrative Agent and not, for the avoidance of doubt, to or for the benefit of Borrowers or any other Obligated Party, that Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).

ARTICLE 12

MISCELLANEOUS

Section 12.1 Expenses.

(a) Each Borrower hereby agrees to pay on demand: (i) all costs and expenses of Administrative Agent and its Related Parties in connection with the preparation, negotiation, execution, and delivery of this Agreement and the other Loan Documents and any and all amendments, modifications, renewals, extensions, supplements, waivers, consents and ratifications thereof and thereto, including, without limitation, the reasonable fees and expenses of legal counsel, advisors, consultants, and auditors for Administrative Agent and its Related Parties; (ii) all costs and expenses of Administrative Agent and each Lender in connection with any Default and the enforcement of this Agreement or any other Loan Document, including, without limitation, court costs and fees and expenses of legal counsel, advisors, consultants, and auditors for Administrative Agent and each Lender; (iii) all transfer, stamp, documentary, or other similar taxes, assessments, or charges levied by any Governmental Authority in respect of this Agreement or any of the other Loan Documents; (iv) all costs, expenses, assessments, and other charges incurred in connection with any filing, registration, recording, or perfection of any Lien contemplated by this Agreement or any other Loan Document; and (v) all other costs and expenses incurred by Administrative Agent and any Lender in connection with this Agreement or any other Loan Document, any litigation, dispute, suit, proceeding or action, the enforcement of its rights and remedies,

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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and the protection of its interests in bankruptcy, insolvency or other legal proceedings, including, without limitation, all costs, expenses, and other charges (including Administrative Agent’s and such Lender’s internal charges) incurred in connection with evaluating, observing, collecting, examining, auditing, appraising, selling, liquidating, or otherwise disposing of the Collateral or other assets of Borrowers. Each Borrower shall be responsible for all expenses described in this clause (a) whether or not the Borrowing is ever made. Any amount to be paid under this Section 12.1 shall be a demand obligation owing by Borrowers and if not paid within thirty (30) days of demand shall bear interest, to the extent not prohibited by and not in violation of applicable Law, from the date of expenditure until paid at a rate per annum equal to the Default Interest Rate. The obligations of Borrowers under this Section 12.1 shall survive payment of the Notes and other obligations hereunder and the assignment of any right hereunder.

(b) To the extent that Borrowers for any reason fail to indefeasibly pay any amount required under Section 12.1(a) or Section 12.2 to be paid by Borrowers to Administrative Agent (or any sub-agent thereof) or any Related Party of Administrative Agent (or any sub-agent thereof), each Lender severally agrees to pay to Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based each Lender’s Applicable Percentage at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent) or against any Related Party of Administrative Agent (or any sub-agent thereof) acting for Administrative Agent (or any such sub-agent) in connection with such capacity. EACH LENDER ACKNOWLEDGES THAT SUCH PAYMENTS MAY BE IN RESPECT OF LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARISING OUT OF OR RESULTING FROM THE SOLE, CONTRIBUTORY, COMPARATIVE, CONCURRENT OR ORDINARY NEGLIGENCE OF THE PERSON (OR THE REPRESENTATIVES OF THE PERSON) TO WHOM SUCH PAYMENTS ARE TO BE MADE.

Section 12.2 INDEMNIFICATION. EACH BORROWER SHALL INDEMNIFY ADMINISTRATIVE AGENT, EACH LENDER AND EACH RELATED PARTY THEREOF FROM, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (A) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (B) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (C) ANY BREACH BY ANY BORROWER OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (D) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE PROPERTIES OR ASSETS OF ANY BORROWER

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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OR ANY OF ITS SUBSIDIARIES OR ANY OTHER OBLIGATED PARTY, (E) ANY LOAN OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM, OR (F) ANY INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, RELATING TO ANY OF THE FOREGOING. WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS FEES) ARISING OUT OF OR RESULTING FROM THE SOLE, CONTRIBUTORY, COMPARATIVE, CONCURRENT OR ORDINARY NEGLIGENCE OF SUCH PERSON (OR THE REPRESENTATIVES OF SUCH PERSON). Any amount to be paid under this Section 12.2 shall be a demand obligation owing by Borrowers and if not paid within ten (10) days of demand shall bear interest, to the extent not prohibited by and not in violation of applicable Law, from the date of expenditure until paid at a rate per annum equal to the Default Interest Rate. The obligations of Borrowers under this Section 12.2 shall survive payment of the Notes and other obligations hereunder and the assignment of any right hereunder.

Section 12.3 Limitation of Liability. To the fullest extent permitted by applicable Laws, none of Administrative Agent or any Lender, or any Affiliate, officer, director, employee, attorney, or agent of any of the foregoing, shall have any liability with respect to, and each Borrower hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, or consequential damages suffered or incurred by any Borrower or any other Obligated Party in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents. To the fullest extent permitted by applicable Laws, each Borrower hereby waives, releases, and agrees not to sue Administrative Agent or any Lender, or any Affiliates, officers, directors, employees, attorneys, or agents of any of the foregoing for punitive damages in respect of any claim in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents.

Section 12.4 No Duty. All attorneys, accountants, appraisers, and other professional Persons and consultants retained by Administrative Agent or any Lender shall have the right to act exclusively in the interest of Administrative Agent or such Lender and shall have no duty of disclosure, duty of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to any Borrower or any of Borrowers’ equity holders, Affiliates, officers, employees, attorneys, agents, or any other Person.

Section 12.5 Lenders Not Fiduciary. The relationship between each Borrower and Administrative Agent, Arranger and each Lender, is solely that of debtor and creditor, and none of Administrative Agent, Arranger, or any Lender, has any fiduciary or other special relationship with any Borrower, and no term or condition of any of the Loan Documents shall be construed so as to deem the relationship between each Borrower and Administrative Agent, Arranger and each Lender to be other than that of debtor and creditor.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 12.6 Equitable Relief. Each Borrower recognizes that in the event Borrowers fail to pay, perform, observe, or discharge any or all of the Obligations, any remedy at law may prove to be inadequate relief to Administrative Agent or Lenders. Each Borrower therefore agrees that Administrative Agent or any Lender, if Administrative Agent or such Lender so requests, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.

Section 12.7 No Waiver; Cumulative Remedies. No failure on the part of Administrative Agent or any Lender to exercise and no delay in exercising, and no course of dealing with respect to, any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The rights and remedies provided for in this Agreement and the other Loan Documents are cumulative and not exclusive of any rights and remedies provided by law.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Obligated Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, Administrative Agent in accordance with Section 10.2 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 4.2 (subject to the terms of Section 12.23), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Obligated Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to Administrative Agent pursuant to Section 10.2 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 12.23, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

Section 12.8 Successors and Assigns.

(a) Successors and Assigns Generally. 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 no Borrower may assign or transfer any of its rights, duties, or obligations under this Agreement or the other Loan Documents without the prior written consent of Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 12.8(b), (ii) by way of participation in accordance with the provisions of Section 12.8(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 12.8(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 12.8(d) and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment(s) and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in Section 12.8(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in Section 12.8(b)(i)(A), the aggregate amount of the Commitment(s) (which for this purpose includes Loans outstanding hereunder) or, if the applicable Commitment is not then in effect, the Outstanding Amount of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000, unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower Representative otherwise consents (each such consent not to be unreasonably withheld or delayed).

(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment(s) assigned.

(iii) Required Consents. No consent shall be required for any assignment except to the extent required by Section 12.8(b)(i)(B) and, in addition: (A) the consent of Borrower Representative (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that Borrower Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within five (5) Business Days after having received notice thereof; and (B) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any Commitment or Loans if such assignment is to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire.

(v) No Assignment to Certain Persons. No such assignment shall be made to (A) any Borrower, or any of Borrowers’ Affiliates or Subsidiaries or any other Obligated Party or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing persons described in this clause (B).

(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).

(vii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to such assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower Representative and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by such Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to: (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent or any Lender hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 12.8(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 12.1 and Section 12.2 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that, except to the

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any party hereunder arising from that Lenders’ having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.8(d). Upon the consummation of any assignment pursuant to this Section 12.8(b), if requested by the transferor or transferee Lender, the transferor Lender, Administrative Agent and Borrowers shall make appropriate arrangements so that replacement Notes are issued to such transferor Lender (if applicable) and new Notes or, as appropriate, replacement Notes, are issued to the assignee.

(c) Register. Administrative Agent, acting solely for this purpose as an agent of Borrowers, shall maintain at one of its offices in Dallas, Texas a copy of each Assignment and Assumption delivered to it and a Register. The entries in the Register shall be conclusive absent manifest error, and Borrowers, Administrative Agent and Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(d) Participations. Any Lender may at any time, without the consent of, or notice to, Borrowers or Administrative Agent, sell participations to a Participant in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) Borrowers, Administrative Agent, and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 12.1(b) without regard to the existence of any participation.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 12.10 which requires the consent of all Lenders and affects such Participant. Each Borrower agrees that each Participant shall be entitled to the benefits of Section 3.1, Section 3.5 and Section 3.4 (subject to the requirements and limitations therein, including the requirements under Section 3.4(g) (it being understood that the documentation required under Section 3.4(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 3.6 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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greater payment under Section 3.1 or Section 3.4, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrowers’ request and expense, to use reasonable efforts to cooperate with Borrowers to effectuate the provisions of Section 3.6 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 4.2 as though it were a Lender; provided that such Participant agrees to pay to Administrative Agent any amount set-off for application to the Obligations under the Loan Documents as required pursuant to Section 4.2; provided further that such Participant agrees to be subject to Section 12.23 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrowers, maintain a Participant Register; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(f) Dissemination of Information. Each Borrower and each other Obligated Party authorizes Administrative Agent and each Lender to disclose to any actual or prospective purchaser, assignee or other recipient of a Lender’s Commitment, any and all information in Administrative Agent’s or such Lender’s possession concerning Borrowers, the other Obligated Parties and their respective Affiliates, in each case, subject to the provisions of Section 12.27.

Section 12.9 Survival. All representations and warranties made in this Agreement or any other Loan Document or in any document, statement, or certificate furnished in connection with this Agreement shall survive the execution and delivery of this Agreement and the other Loan Documents, and no investigation by Administrative Agent or any Lender or any closing shall affect the representations and warranties or the right of Administrative Agent or any Lender to rely upon them. Without prejudice to the survival of any other obligation of Borrowers hereunder, the obligations of Borrowers under Section 12.1 and Section 12.2 shall survive repayment of the Obligations and termination of the Commitments.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 12.10 Amendment. The provisions of this Agreement and the other Loan Documents to which any Borrower is a party may be amended or waived only by an instrument in writing signed by Required Lenders (or by Administrative Agent with the consent of Required Lenders) and each Borrower and acknowledged by Administrative Agent; provided, however, that no such amendment or waiver shall:

(a) waive any condition set forth in Section 5.1 (other than Section 5.1(n) and Section 5.1(o)(i)), without the written consent of each Lender;

(b) extend or increase any Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 10.2) without the written consent of such Lender;

(c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayment) of principal, interest, fees or other amounts due to Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;

(d) reduce the principal of, or the rate of interest specified herein on, any Loan, or any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of Required Lenders shall be necessary to adjust the Default Interest Rate or to waive any obligation of Borrowers to pay interest at such rate;

(e) change any provision of this Section 12.10 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;

(f) change Section 10.3 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;

(g) change or waive Section 7.17, change the definition of “Excess Cash”, change or waive Section 2.6(d)(viii) or extend any date for payment set forth therein, or change or waive Section 7.1(o) or extend any date for delivery set forth therein, in any case, without the written consent of each Lender; or

(h) release all or substantially all of the Collateral (in each case, except as provided herein) without the written consent of each Lender;

and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document; (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; and (iii) Borrowers and Administrative Agent may amend this Agreement or any other Loan Document without the consent of Lenders (unless the Required Lenders object in writing within five (5) Business Days of notice by Administrative Agent of such amendment) in

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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order to (A) correct, amend or cure any ambiguity, inconsistency or defect or correct any typographical error or other manifest error in any Loan Document or (B) comply with local Law or advice of local counsel in any jurisdiction the Laws of which govern any Security Document or that are relevant to the creation, perfection, protection and/or priority of any Lien in favor of Administrative Agent, (C) effect the granting, perfection, protection, expansion or enhancement of any security interest or Lien in any Collateral or additional Property to become Collateral for the benefit of the Secured Parties, (D) make administrative or operational changes not adverse to any Lender or (E) add a Guarantor or Collateral or otherwise enhance the rights and benefits of the Lenders.

Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment(s) of any Defaulting Lender may not be increased or extended without the consent of such Lender; and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

Section 12.11 Notices.

(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 12.11(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as set forth on Schedule 12.11. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications, to the extent provided in Section 12.11(b) shall be effective as provided in Section 12.11(b).

(b) Electronic Communications. Notices and other communications to Lenders and hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article 2 if such Lender has notified Administrative Agent that it is incapable of receiving notices under Article 2 by electronic communication. Administrative Agent or Borrower Representative may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such facsimile, email or other electronic communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

(c) Change of Address, etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto, and Schedule 12.11 shall be deemed to be amended by each such change, and Administrative Agent is authorized, in its discretion, from time to time to reflect each such change in an amended Schedule 12.11 provided by Administrative Agent to each party hereto.

(d) Platform.

(i) Each Borrower agrees that Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting the Communications on the Platform.

(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Agent Parties have any liability to any Borrower, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s or Administrative Agent’s transmission of communications through the Platform.

(iii) Each Borrower and each other Obligated Party (by its execution of a Loan Document) hereby authorizes Administrative Agent, each Lender, and their respective counsel and agents and Related Parties (each, an “Authorized Party”) to communicate and transfer documents and other information (including confidential information) concerning this transaction or any Borrower or any other Obligated Party and the business affairs of such Borrower and such other Obligated Parties via the Internet or other electronic communication method. In no event shall any Authorized Party have any liability to any Borrower, any Lender or any other Person or entity for damages of any kind (whether in tort, contract or otherwise) arising out of any such communications or transmissions, except to the extent that such damages are determined by a court of competent

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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jurisdiction in a final and nonappealable judgment to have directly resulted from the gross negligence or willful misconduct of such Authorized Party; provided, however, that in no event shall any Authorized Party have any liability for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

(e) Public Information. Each Borrower and each other Obligated Party (by its execution of a Loan Document) hereby acknowledges that certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any Borrower or any other Obligated Party or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such securities. Each Borrower and each other Obligated Party (by its execution of a Loan Document) hereby agrees that it will use commercially reasonable efforts to identify that portion of the materials and information provided by or on behalf of any Borrower or any other Obligated Party hereunder and under the other Loan Documents (collectively, “Borrower Materials”) that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC,” Each Borrower and each other Obligated Party shall be deemed to have authorized Administrative Agent and the other Lenders to treat such Borrower Materials as not containing any material non-public information with respect to any Borrower or any other Obligated Party or its securities for purposes of U.S. federal and state securities Laws (provided, however, that to the extent that such Borrower Materials constitute Information, they shall be subject to Section 12.27); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (iv) Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”. Each Public Lender will designate one or more representatives that shall be permitted to receive information that is not designated as being available for Public Lenders, in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and under applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to any Borrower or any other Obligated Party or its Subsidiaries and its securities for the purposes of United State federal or state securities Laws

Section 12.12 Governing Law; Venue; Service of Process.

(a) Governing Law. This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of Texas (without reference to applicable rules of conflicts of Laws), except to the extent the Laws of any jurisdiction where Collateral is located require application of such Laws with respect to such Collateral.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(b) Jurisdiction. Each of the parties hereto irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against any other party hereto or any Related Party thereof in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of Texas sitting in Dallas County, and of the United States District Court of the Northern District of Texas, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such Texas State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation 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) Waiver of Venue. Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent permitted by applicable Laws, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Service of Process. Each party hereto irrevocably consents to service of process by the mailing thereof, by registered or certified mail, postage prepaid, in the manner provided for the mailing of notices in Section 12.11. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law.

Section 12.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Except as provided in Section 5.1, this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 12.14 Severability. Any provision of this Agreement or any other Loan Document held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision held to be invalid or illegal. Furthermore, in lieu of such invalid or unenforceable provision there shall be added as a part of this Agreement or the other Loan Documents a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 12.15 Headings. The headings, captions, and arrangements used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.

Section 12.16 Construction. Each Borrower, Administrative Agent and each Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other Loan Documents shall be construed as if jointly drafted by each Borrower, Administrative Agent and each Lender.

Section 12.17 Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken or such condition exists.

Section 12.18 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.18.

Section 12.19 Additional Interest Provision. It is expressly stipulated and agreed to be the intent of each Borrower, Administrative Agent and each Lender at all times to comply strictly with the applicable law governing the maximum rate or amount of interest payable on the indebtedness evidenced by any Note, any Loan Document, and the Related Indebtedness (or applicable United States federal law to the extent that it permits any Lender to contract for, charge, take, reserve or receive a greater amount of interest than under applicable law). If the applicable law is ever judicially interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or received pursuant to any Note, any of the other Loan Documents or any other communication or writing by or between any Borrower and any Lender related to the transaction or transactions that are the subject matter of the Loan Documents, (b) contracted for, charged, taken, reserved or received by reason of Administrative Agent’s or any Lender’s exercise of the option to accelerate the maturity of any Note and/or the Related Indebtedness, or (c) Borrowers will have paid or Administrative Agent or any Lender will have received by reason of any voluntary prepayment by Borrowers of any Note and/or the Related Indebtedness, then it is Borrowers’, Administrative Agent’s and Lenders’ express intent that all amounts charged in excess of the Maximum Rate shall be automatically canceled, ab initio, and all amounts in excess of the Maximum Rate theretofore collected by Administrative Agent or any Lender shall be credited on the principal balance of any Note and/or the Related Indebtedness

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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(or, if any Note and all Related Indebtedness have been or would thereby be paid in full, refunded to Borrowers), and the provisions of any Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if any Note or Related Indebtedness has been paid in full before the end of the stated term thereof, then each Borrower, Administrative Agent and each Lender agree that Administrative Agent or any Lender, as applicable, shall, with reasonable promptness after Administrative Agent or such Lender discovers or is advised by any Borrower that interest was received in an amount in excess of the Maximum Rate, either refund such excess interest to Borrowers and/or credit such excess interest against such Note and/or any Related Indebtedness then owing by Borrowers to Administrative Agent or such Lender. Each Borrower hereby agrees that as a condition precedent to any claim seeking usury penalties against Administrative Agent or such Lender, Borrower Representative will provide written notice to Administrative Agent or any Lender, advising Administrative Agent or such Lender in reasonable detail of the nature and amount of the violation, and Administrative Agent or such Lender shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Borrowers or crediting such excess interest against the Note to which the alleged violation relates and/or the Related Indebtedness then owing by Borrowers to Administrative Agent or such Lender. All sums contracted for, charged, taken, reserved or received by Administrative Agent or any Lender for the use, forbearance or detention of any debt evidenced by any Note and/or the Related Indebtedness shall, to the extent permitted by applicable law, be amortized or spread, using the actuarial method, throughout the stated term of such Note and/or the Related Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of any Note and/or the Related Indebtedness does not exceed the Maximum Rate from time to time in effect and applicable to such Note and/or the Related Indebtedness for so long as debt is outstanding. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of Administrative Agent or any Lender to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration.

Section 12.20 Ceiling Election. To the extent that any Lender is relying on Chapter 303 of the Texas Finance Code to determine the Maximum Rate payable on any Note and/or any other portion of the Obligations under the Loan Documents, such Lender will utilize the weekly ceiling from time to time in effect as provided in such Chapter 303. To the extent United States federal law permits any Lender to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law, such Lender will rely on United States federal law instead of such Chapter 303 for the purpose of determining the Maximum Rate. Additionally, to the extent permitted by applicable law now or hereafter in effect, any Lender may, at its option and from time to time, utilize any other method of establishing the Maximum Rate under such Chapter 303 or under other applicable law by giving notice, if required, to Borrower Representative as provided by applicable law now or hereafter in effect.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

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Section 12.21 USA Patriot Act Notice. Administrative Agent and each Lender hereby notifies each Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Borrower and each other Obligated Party, which information includes the name and address of each Borrower and each other Obligated Party and other information that will allow Administrative Agent and such Lender to identify each Borrower and each other Obligated Party in accordance with the Patriot Act. In addition, each Borrower agrees to (a) not to use or permit the use of proceeds of the Obligations to violate any Anti-Corruption Laws, Anti-Terrorism Laws or any applicable Sanctions, and (b) comply, or cause its Subsidiaries to comply, with the applicable Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions.

Section 12.22 Defaulting Lenders.

(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of “Required Lenders” and in Section 12.10.

(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 10 or otherwise) or received by Administrative Agent from a Defaulting Lender shall be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, with respect to a Defaulting Lender, as Borrower Representative may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; third, with respect to a Defaulting Lender, if so determined by Administrative Agent and Borrower Representative, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 5.1 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

97


until such time as all Loans are held by Lenders pro rata in accordance with their Applicable Percentages. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 12.22(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees. No Defaulting Lender shall be entitled to receive any fee payable under Section 2.2 for any period during which that Lender is a Defaulting Lender (and Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(b) Defaulting Lender Cure. If Borrower Representative and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by Lenders in accordance with their Applicable Percentages, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

Section 12.23 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it or other obligations hereunder, resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall:

(a) notify Administrative Agent of such fact; and

(b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

98


(ii) the provisions of this Section 12.23 shall not be construed to apply to: (A) any payment made by or on behalf of Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender); or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than an assignment to any Borrower or any Affiliate thereof (as to which the provisions of this Section 12.23 shall apply).

Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.

Section 12.24 Payments Set Aside. To the extent that any payment by or on behalf of Borrowers is made to Administrative Agent or any Lender, or Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of Lenders and under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

Section 12.25 Borrower Representative as Agent for Borrowers. Each Borrower hereby irrevocably appoints Borrower Representative as the borrowing agent and attorney-in-fact for all Borrowers, which appointment shall remain in full force and effect unless and until Administrative Agent shall have received prior written notice signed by each Borrower that such appointment has been revoked and that another Borrower has been appointed Borrower Representative. Each Borrower hereby irrevocably appoints and authorizes Borrower Representative (i) to provide Administrative Agent with all notices with respect to Loans obtained for the benefit of any Borrower and all other notices and instructions under this Agreement and (ii) to take such action as Borrower Representative deems appropriate on its behalf to obtain Loans and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement. It is understood that the handling of the Register and Collateral of Borrowers in a combined fashion, as more fully set forth herein and in the other Loan Documents, is done solely as an accommodation to Borrowers in order to utilize the collective borrowing powers of Borrowers in the most efficient and economical manner and at their request, and that Administrative Agent and Lenders shall not incur liability to any Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

99


handling of the Register and the Collateral in a combined fashion since the operation of each Borrower is dependent on the performance of the integrated group. To induce Administrative Agent and Lenders to do so, and in consideration thereof, each Borrower hereby jointly and severally agrees to indemnify Administrative Agent and Lenders and hold Administrative Agent and Lenders harmless against any and all liability, expense, loss or claim of damage or injury, made against Administrative Agent or any Lender by any Borrower or by any third-party whosoever, arising from or incurred by reason of (a) the handling of the Register and Collateral of Borrowers as herein provided, or (b) Administrative Agent and Lenders relying on any instructions of Borrower Representative, except that Borrowers will have no liability to Administrative Agent or any Lender, as applicable, under this Section 12.25 with respect to any liability that has been finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such party, as the case may be.

Section 12.26 Joint and Several Liability.

(a) Each Borrower acknowledges and agrees that it is the intent of the parties that each such Borrower be primarily liable for the obligations as a joint and several obligor. It is the intention of the parties that with respect to liability of any Borrower hereunder arising solely by reason of its being jointly and severally liable for Loans and other extensions of credit taken by the Borrowers, the obligations of such Borrower shall be absolute, unconditional and irrevocable irrespective of:

(i) any lack of validity, legality or enforceability of this Agreement or any Note as to any Borrower, as the case may be;

(ii) the failure of any Lender or any holder of any Note:

(A) to enforce any right or remedy against any Borrower, as the case may be, or any other Person under the provisions of this Agreement, such Note, or otherwise,

(B) to exercise any right or remedy against any Obligated Party or Collateral;

(C) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other extension, compromise or renewal of any Obligations;

(D) any reduction, limitation, impairment or termination of any Obligations with respect to any Borrower, as the case may be, for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Borrower hereby waives any right to or claim of) any defense (other than the defense of payment in full of the Obligations) or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Debt with respect to any Borrower, as the case may be;

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

100


(E) any addition, exchange, release, surrender or nonperfection of any Collateral, or any amendment to or waiver or release or addition of, or consent to departure from, any guaranty, held by any Lender or any holder of the Notes securing any of the Obligations; or

(F) any other circumstance which might otherwise constitute a defense (other than the defense of payment in full of the Obligations) available to, or a legal or equitable discharge of, any Borrower, as the case may be, any surety or any Obligated Party.

(b) Each Borrower agrees that its joint and several liability hereunder shall continue to be effective or be reinstated, as the case may be, if at any time any payment (in whole or in part) of any of the Obligations is rescinded or must be restored by any Lender or any holder of any Note, upon the insolvency, bankruptcy or reorganization of any Borrower, as the case may be, as though such payment had not been made;

(c) Each Borrower hereby expressly waives: (i) notice of Lenders’ acceptance of this Agreement; (ii) notice of the existence or creation or non-payment of all or any of the Obligations other than notices expressly provided for in this Agreement; (iii) presentment, demand, notice of dishonor, protest, and all other notices whatsoever other than notices expressly provided for in this Agreement; (iv) any claim or defense based on an election of remedies; and (v) all diligence in collection or protection of or realization upon the Obligations or any part thereof, any obligation hereunder, or any security for or guaranty of any of the foregoing.

Section 12.27 Confidentiality. Each of Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential or shall otherwise be subject to confidentiality provisions generally), (b) to any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners) or any Governmental Authority, quasi-Governmental Authority or legislative committee, (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement or any other Loan Document, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to its being under a duty of confidentiality no less restrictive than this Section 12.27, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (ii) any actual or prospective counterparty (or its Related Parties) to any Hedge Agreement relating to any Borrower and its obligations, (iii) any actual or prospective purchaser of a Lender or its holding company, (iv) any rating agency or any similar organization in connection with the rating of any Borrower or the credit facility established pursuant to this Agreement or (v) the CUSIP Service Bureau or any similar organization in connection with the issuance and monitoring of CUSIP numbers with respect to the credit facility established pursuant to the terms of this Agreement, (g) with the consent of Borrower Representative, or (h) to the extent such Information (i) becomes publicly available other than as a result of a

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

101


breach of this Section 12.27 or (ii) becomes available to Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than a Borrower. In addition, Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments. For purposes of this Section 12.27, “Information” means all information received from any Borrower or any Subsidiary relating to any Borrower or any Subsidiary or any of their respective businesses which is clearly identified as confidential, other than any such information that is available to Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by a Borrower or a Subsidiary; provided that, in the case of information received from any Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 12.27 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Each Borrower and each other Obligated Party (by its execution of a Loan Document) hereto agrees and confirms that, as between such Borrower or such Obligated Party and Texas Capital Bank, the obligations of Texas Capital Bank under this Section 12.27 supersede and replace in their respective entireties all confidentiality, non-disclosure and similar obligations of Texas Capital Bank, if any, set forth in any previous agreement between such Borrower or such Obligated Party and Texas Capital Bank notwithstanding anything to the contrary contained therein

Section 12.28 Electronic Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.

Section 12.29 Independence of Covenants. All covenants under the Loan Documents shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken or such condition exists.

Section 12.30 Release of Lien. If, after the Closing Date, Parent or Intermediate Holdco enters into a Qualified Parent Credit Facility, contemporaneously with the closing of such Qualified Parent Credit Facility, if required pursuant to the terms thereof and notwithstanding anything in the Pledge Agreement or any other Loan Document to the contrary, the Administrative Agent and the Lenders shall automatically release their Liens on the Pledged

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

102


Collateral, the Pledged Collateral shall no longer constitute Collateral and the Pledge Agreement shall terminate and be of no further effect, in each case without any further action on the part of the Administrative Agent, the Lenders, the Parent or any other Person; provided that Administrative Agent shall have received, in form reasonably satisfactory to Administrative Agent, the following:

(a) the documentation required pursuant to, and in compliance with, Section 7.1(q)(i) and (ii); and

(b) a certificate of a Responsible Officer of each Borrower dated as of the date of the closing of such Qualified Parent Credit Facility, certifying that immediately before and immediately after giving effect to the closing of such Qualified Parent Credit Facility, (x) no Default shall have occurred and be continuing, (y) no Material Adverse Event has occurred since December 31, 2018 or the most recently ended fiscal year or fiscal quarter for which financial statements have been furnished pursuant to Section 7.1(a) or (b), as applicable, and (z) all of the representations and warranties contained in Article 6 and in the other Loan Documents shall be true and correct on and as of the date thereof with the same force and effect as if such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 12.30, the representations and warranties contained in Section 6.2 shall be deemed to refer to the most recent statements furnished pursuant to Section 7.1(a) and (b), respectively.

Each Lender further authorizes and directs the Administrative Agent to do, execute and deliver, or cause to be done, executed and delivered all such further acts, instruments, documents and agreements as may be reasonably requested by Parent or Borrower Representative, which may be necessary or desirable in order to evidence or effectuate the termination of the Pledge Agreement and the termination and release of any and all security interests and Liens on the Pledged Collateral, whether created under the Security Documents, any other Loan Document or otherwise.

Section 12.31 Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

103


(b) the effects of any Bail-in Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

Section 12.32 Keepwell. Each Qualified ECP Guarantor party hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Obligated Party to honor all of such other Obligated Party’s (a) Swap Obligations and (b) obligations under its Guaranty including those with respect to Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section, or otherwise under this Agreement or any other Loan Document, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations (other than contingent indemnification obligations that survive the termination of this Agreement) have been paid in full and the Commitments have expired or terminated. Each Qualified ECP Guarantor intends that this Section constitute, and this Section shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Obligated Party for all purposes of Section 1a(18)(A)(v)(ii) of the Commodity Exchange Act.

Section 12.33 Amendment and Restatement; Ratification of Prior Liens and Loan Documents The parties hereto agree that: (a) this Agreement is intended to, and does hereby, restate, renew, extend, amend, modify, supersede and replace the Existing Credit Agreement in its entirety; (b) the Obligations (as defined in this Agreement) represent, among other things, the restatement, renewal, amendment, extension and modification of the “Obligations” (as defined in the Existing Credit Agreement); (c) the Notes executed pursuant to the Existing Credit Agreement, and for which Sunnova LV3-HI became bound as a Borrower thereunder pursuant to the Ninth Amendment (as defined in the Existing Credit Agreement) to the Existing Credit Agreement as if Sunnova LV3-HI had been an original signatory to such Notes, are hereby ratified and confirmed and shall remain in full force and effect and shall continue to evidence the Obligations (as defined in this Agreement); (d) the entering into and performance of their respective obligations under the Loan Documents and the transactions evidenced hereby do not constitute a novation nor shall they be deemed to have terminated, extinguished or discharged the indebtedness under the Existing Credit Agreement, all of which indebtedness shall continue under and be governed by this Agreement and the other Loan Documents, (e) all liens and security interests created by or pursuant to the Existing Credit Agreement (including each of the “Security Documents” and other “Loan Documents” each as defined in the Existing Credit Agreement) are hereby ratified and confirmed and shall remain in full force and effect, and shall continue to secure full payment and performance of the Obligations (as defined in this Agreement), without novation, discharge or interruption, except as expressly provided otherwise herein or in any other Loan Document; and (f) all references to the Existing Credit Agreement contained in any Loan Document shall mean such agreement, as amended and restated hereby.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

104


Section 12.34 NOTICE OF FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

105


EXECUTED to be effective as of the date first written above.

 

BORROWERS:

SUNNOVA ASSET PORTFOLIO 4, LLC,

a Delaware limited liability company

By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   SVP, Head of Finance and Treasurer

 

SUNNOVA LEASE VEHICLE 3-HI, LLC,

a Delaware limited liability company

By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   SVP, Head of Finance and Treasurer

SIGNATURE PAGE TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ADMINISTRATIVE AGENT:
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION
By:   /s/ Kurt A. Goeringer
  Kurt A. Goeringer
  Executive Vice President

SIGNATURE PAGE TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


LENDER:
TEXAS CAPITAL BANK, NATIONAL ASSOCIATION
By:   /s/ Kurt A. Goeringer
  Kurt A. Goeringer
  Executive Vice President

SIGNATURE PAGE TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


LENDER:
LEGACYTEXAS BANK, a Texas state commercial bank, successor by merger to ViewPoint Bank, N.A.
By:   /s/ Michael Murray
Name: Michael Murray
Title: Senior Vice President

SIGNATURE PAGE TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


LENDER:
HANCOCK WHITNEY BANK
By:   /s/ Nathaniel Ellis
Name: Nathaniel Ellis
Title: Senior Vice President

SIGNATURE PAGE TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


LENDER:
VERITEX COMMUNITY BANK
By:   /s/ Gregory P. Christmann
Name:   Gregory P. Christmann
Title:   Executive Vice President

SIGNATURE PAGE TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


CONSENT OF PARENT

As an inducement to Administrative Agent and Lenders to enter into this Agreement, the undersigned hereby (a) acknowledges and agrees to the provisions of this Agreement relating to Parent, including Section 8.21; (b) acknowledges and agrees to the provisions of Section 12.33 of this Agreement; and (c) ratifies and confirms its obligations under the Pledge Agreement and, if not now bound under the provisions thereof, does hereby bind itself individually to the provisions thereof as modified and agrees that the term “Secured Obligations” as used in the Pledge Agreement includes the Obligations as defined in this Agreement.

 

PARENT:

SUNNOVA ENERGY CORPORATION,

a Delaware corporation

By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   SVP, Head of Finance and Treasurer

AMENDED AND RESTATED CREDIT AGREEMENT – Consent of Parent

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


SCHEDULE 1.1(a)

BrightGrid Assets

 

System Project:

ID

   System
Project:
Sunnova
System ID
    

Partner Account:
Account Name

  

Contract
Type

   Committed
Capital
(EPC Cost)
 

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  

[***]

     [***]      BrightGrid Solar, Inc.    Lease    $ [***]  
           

 

 

 

Total

            $ 186,052.28  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 1.1(a) – Page 1


SCHEDULE 1.1(b)

Haleakala Assets

 

System Project:
ID

   System
Project:
Sunnova
System ID
   

Partner Account:
Account Name

  

Contract
Type

   Committed
Capital

(EPC Cost)
 

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]     Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [ ***]    Haleakala Solar, Inc.    PPA    $ [***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 1.1(b) – Page 1


System Project:
ID

   System
Project:
Sunnova
System ID
    

Partner Account:
Account Name

  

Contract
Type

   Committed
Capital

(EPC Cost)
 

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 1.1(b) – Page 2


System Project:
ID

   System
Project:
Sunnova
System ID
    

Partner Account:
Account Name

  

Contract
Type

   Committed
Capital

(EPC Cost)
 

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  

[***]

     [***]      Haleakala Solar, Inc.    PPA    $ [***]  
           

 

 

 

Total

            $ 1,667,893.67  
           

 

 

 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 1.1(b) – Page 3


SCHEDULE 2.1

Commitments and Applicable Percentages

 

Lender

   Commitment      Applicable
Percentage
 

Texas Capital Bank, National Association

   $ [***]        [***]

LegacyTexas Bank

   $ [***]        [***]

Veritex Community Bank

   $ [***]        [***]

Hancock Whitney Bank

   $ [***]        [***]

TOTAL

   $ 95,719,282.81        100.000000000000

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 2.1


SCHEDULE 6.5

Litigation and Judgments

None.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 6.5 – Page 1


SCHEDULE 6.13

Subsidiaries

Sunnova Lease Vehicle 3-HI, LLC is a wholly-owned Subsidiary of Sunnova Asset Portfolio 4, LLC.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 6.13 – Page 1


SCHEDULE 6.18

Intellectual Property

None.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 6.19 – Page 1


SCHEDULE 8.2

Existing Liens

None.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 8.2 – Page 1


SCHEDULE 8.5

Existing Investments

None.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 8.5 – Page 1


SCHEDULE 12.11

Notices

Notices under this Agreement shall be given:

(a) if to Borrowers, to it, c/o Borrower Representative, to it at 20 Greenway Plaza, Suite 475, Houston, Texas 77046, Attention of CFO (Facsimile No. [***]; Telephone No. [***]; Email: [***]);

(b) if to Administrative Agent, to:

Texas Capital Bank, National Association

Attention: [***] 2000 McKinney Avenue

Suite 700

Dallas, Texas 75201

Reporting Items:

Attention: [***]

Facsimile No. [***]

Telephone No. [***]

Email: [***]

Repayments & Conversions:

Attention: Loan Operations/PSE

Facsimile No. [***]

Telephone No. [***]

Email: [***]

with a copy to:

Texas Capital Bank, National Association 1330 Post Oak Boulevard, Suite 1700

Houston, Texas 77056

Attention: [***]

Facsimile: [***]

Telephone: [***]

Email: [***]

(c) if to a Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

SCHEDULE 12.11 – Page 1

EX-10.6 12 d709190dex106.htm EX-10.6 EX-10.6

Exhibit 10.6

EXECUTION VERSION

AMENDED AND RESTATED LIMITED PERFORMANCE GUARANTY

This AMENDED AND RESTATED LIMITED PERFORMANCE GUARANTY (this “Guaranty”), dated as of June 27, 2019 (the “Effective Date”), is made by SUNNOVA ENERGY CORPORATION, a Delaware corporation (the “Guarantor”) for the benefit of SUNNOVA LAP HOLDINGS, LLC, a Delaware limited liability company (“SSA SPV1”), SUNNOVA LAP I, LLC, a Delaware limited liability company (“SSA SPV2”), SUNNOVA LAP II, LLC, a Delaware limited liability company (“SSA SPV3” and, together with SSA SPV1 and SSA SPV2, each a “Borrower and, collectively, the “Borrowers”), and CREDIT SUISSE AG, NEW YORK BRANCH (the “Administrative Agent”), as administrative agent under that certain Amended and Restated Credit Agreement, dated as of even date herewith (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, as borrowers, Sunnova SSA Management, LLC, as manager (“Sunnova SSA Management” or in such capacity, the “Manager”) and as servicer (in such capacity, the “Servicer”), Sunnova Asset Portfolio 7 Holdings, LLC, a Delaware limited liability company, as seller (the “Seller” and together with the Guarantor, the Manager and the Servicer, each a “Sunnova Party”), the Administrative Agent, the financial institutions that become parties thereto as lenders (the “Lenders”), Wells Fargo Bank, National Association, as paying agent and U.S. Bank National Association, as custodian. Capitalized terms used but not defined herein shall have the meanings specified in the Credit Agreement.

PRELIMINARY STATEMENT:

WHEREAS, the Guarantor, the Borrowers and the Administrative Agent entered into that certain Limited Performance Guaranty dated as of November 8, 2018 (“Original Guaranty”) in order to induce the Borrowers, the Lenders and the Administrative Agent to enter into the Credit Agreement, pursuant to which the Guarantor agreed to guaranty (a) the performance and payment by Sunnova SSA Management of its obligations, as Manager, under that certain Management Agreement, dated as of November 8, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Management Agreement”), by and among the Borrowers, the Manager and the Administrative Agent, in its capacity as administrative agent under the Credit Agreement, (b) the performance and payment by Sunnova SSA Management of its obligations, as Servicer, under that certain Servicing Agreement, dated as of November 8, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Servicing Agreement”), by and among the Borrowers, the Servicer, Wells Fargo Bank, National Association, as back-up servicer (in such capacity, the “Back-Up Servicer”) and the Administrative Agent, in its capacity as administrative agent under the Credit Agreement, (c) the performance and payment by the Seller of all refund obligations for breaches of representations and warranties in respect of the Solar Assets pursuant to that certain Sale and Contribution Agreement, dated as of November 8, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Sale and Contribution Agreement”), by and among the Seller and the Borrowers, and (d) that no Sunnova Party will commit or cause any Borrower to commit any Performance Violation (as such term is defined herein);

WHEREAS, SSA SPV2 and SSA SPV3 are wholly-owned subsidiaries of SSA SPV1, SSA SPV1 is wholly-owned subsidiary of the Seller, the Seller is a wholly-owned subsidiary of Sunnova Intermediate Holdings, LLC, a Delaware limited liability company (“Intermediate Holdings”), and Intermediate Holdings is a wholly-owned subsidiary of the Guarantor, and, as such, the Guarantor will benefit by virtue of the financial accommodations extended to the Borrowers by the Lenders; and


WHEREAS, the parties hereto wish to amend and restate the Original Guaranty in its entirety.

NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the parties hereby agree as follows:

SECTION 1. Unconditional Undertaking. (a) Limited Performance Guaranty. The Guarantor hereby unconditionally and irrevocably undertakes and agrees with and for the benefit of the Borrowers and the Administrative Agent to:

(i) cause the Borrowers to enter into the hedge agreements required pursuant to Section 5.1(S) of the Credit Agreement (collectively, the Hedging Obligations”),

(ii) cause the due and punctual performance and observance by Sunnova SSA Management and its successors and assigns of all terms, covenants, conditions, agreements, undertakings, indemnities, and other obligations to be performed or observed by Sunnova SSA Management under the Servicing Agreement in accordance with the respective terms thereof (collectively, the “Servicer Obligations”),

(iii) cause the due and punctual performance and observance by Sunnova SSA Management and its successors and assigns of all terms, covenants, conditions, agreements, undertakings, indemnities, and other obligations to be performed or observed by Sunnova SSA Management under the Management Agreement in accordance with the respective terms thereof (collectively, the “Manager Obligations”),

(iv) cause the due and punctual performance and observance by the Seller and its successor and assigns of all indemnities for Indemnified Amounts (as defined in the Sale and Contribution Agreement) and all refund obligations for breaches of representations and warranties in respect of Solar Assets pursuant to the Sale and Contribution Agreement (collectively, the “Seller Obligations”),

(v) indemnify and reimburse and hold the Administrative Agent and the Lenders harmless from any liability or actual out-of-pocket loss, damage, cost or expense (collectively, “Losses”) suffered or incurred by the Administrative Agent and any Lenders, including all reasonable and documented attorneys fees and costs of enforcing this Guaranty resulting proximately from or arising proximately in connection with any one or more of the following (the “Performance Liabilities and together with the Hedging Obligations, the Servicer Obligations, the Manager Obligations and the Seller Obligations, the “Guarantied Obligations”):

 

2


(A) fraud or willful misconduct by (1) any Sunnova Party, (2) any Person expressly directed by any Sunnova Party to commit an act amounting to fraud or willful misconduct, or (3) any member of the senior management of any Sunnova Party acting in its capacity as such (any such person described in clauses (2) or (3), a “Sunnova Party Designee”) with respect to any Borrower or the Collateral;

(B) theft or misappropriation of funds of any Borrower by any Sunnova Party or any Sunnova Party Designee (including the acceptance of dividends, distributions or payments made to the Seller by any Borrower in contravention of the provisions of the Transaction Documents;

(C) any voluntary sale, encumbrance or disposition of any Collateral or any part thereof or interest therein, respectively, that is not expressly permitted by the Transaction Documents, in each case, to the extent that any such event occurs because of any action or inaction by any Sunnova Party (including in any such Person’s capacity as managing member of any Borrower) or any Sunnova Party Designee (regardless of whether such action or inaction is by such Person individually or in collusion with any other Persons);

(D) if, at any time when any Borrower is solvent and paying its debts when due, such Borrower is subject to an Insolvency Event (unless, in any such case, the Administrative Agent has provided its prior written consent thereto), to the extent that any such Insolvency Event occurs because of any action or inaction by any Sunnova Party or any Sunnova Party Designee (regardless of whether such action or inaction is by such Person individually or in collusion with any other persons or entities);

(E) any Sunnova Party or any Sunnova Party Designee consents to, initiates or institutes or makes any claim or proceeding that results in an entry of an order causing the “substantive consolidation” of any Borrower with any other Person in an insolvency proceeding (other than, in the case of any Borrower, another Borrower);

(F) any intentional act (excluding those acts expressly permitted under the terms of the Transaction Documents) by any Sunnova Party (including in any such Person’s capacity as managing member of any Borrower) or any Sunnova Party Designee which (x) by its terms expressly grants a security interest in any portion of the Collateral to another person or entity, (y) prevents the perfection of the Administrative Agent’s security interest in any portion of the Collateral, or (z) is taken for the purpose of, and results in, the security interest of the Administrative Agent becoming unperfected under the applicable provisions of the UCC or any other applicable law, or not being a first priority security interest under the UCC or any other applicable law (other than as the result of any non-consensual security interest arising by operation of law); and/or

 

3


(G) any intentional act (excluding those acts expressly permitted under the terms of the Transaction Documents) by any Sunnova Party (including in any such Person’s capacity as managing member of any Borrower) or any Sunnova Party Designee which prevents or materially delays (beyond any typical delay normally associated with a servicing transfer) the transfer of servicing responsibilities to another person or entity in accordance with the Transaction Documents following the occurrence of a Servicer Termination Event (any of the foregoing events described in clauses (A) through (G), a “Performance Violation”), and

(vi) pay any and all expenses (including reasonable and documented counsel fees and expenses) incurred by the Borrowers, the Lenders or the Administrative Agent in enforcing their respective rights against any Sunnova Party under the applicable Transaction Document and this Guaranty, in each case arising out of the Guarantied Obligations.

Notwithstanding anything to the contrary herein, “Loss” shall not include any losses amounting to recourse for credit losses with respect to the Solar Assets, and “Hedging Obligations” are not intended to be, and shall not be construed as, a general credit guarantee of the Borrowers’ payment obligations under hedging agreements. In addition, notwithstanding anything to the contrary herein and for the avoidance of doubt, it is understood and agreed that the Performance Liabilities are limited to the Losses arising out of or in connection with any Performance Violation expressly set forth herein and is not intended to be, and shall not be construed as, a general credit guarantee of the Obligations of the Borrowers.

(b) In recognition of the direct and indirect benefits to be received by the Guarantor from the proceeds of the Advances advanced under the Credit Agreement and other financial accommodations made and to be made under the applicable Transaction Documents, the Guarantor hereby unconditionally and irrevocably guarantees that no Sunnova Party shall commit or cause any Borrower to commit any Performance Violation and if any Sunnova Party fails in any manner whatsoever to perform or observe any of the Guarantied Obligations applicable to it when the same shall be required to be performed or observed under the applicable Transaction Document, after giving effect to any applicable grace or cure period thereunder, the Guarantor will itself, within three (3) Business Days of the earlier of (i) the Guarantor’s knowledge of such failure or (ii) demand from the Administrative Agent, duly and punctually perform or observe, or cause to be duly and punctually performed or observed, such Guarantied Obligations, and it shall not be a condition to the accrual of the obligation of the Guarantor hereunder to perform or observe any Guarantied Obligation (or to cause the same to be performed or observed) that the applicable Borrowers or the Administrative Agent shall have first made any request of or demand upon or given any notice to the Guarantor, any Sunnova Party, or any of their successors or assigns, or have instituted any action or proceeding against the Guarantor, any Sunnova Party, or their successors or assigns in respect thereof.

 

4


SECTION 2. Obligations Absolute. The Guarantor agrees that the Guarantied Obligations not performed by any other Sunnova Party will be performed by the Guarantor strictly in accordance with the terms of the applicable Transaction Document and this Guaranty. The obligations of the Guarantor under this Guaranty are independent of the Obligations and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, to the fullest extent permitted by applicable law, irrespective of whether any action is brought against any other Sunnova Party, as applicable, or whether any other Sunnova Party, as applicable, is joined in any such action or actions. The liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of:

(a) any lack of validity or enforceability against any Sunnova Party of any applicable Transaction Document or any other agreement or instrument relating thereto;

(b) any change in the time, manner or place of performance of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from any applicable Transaction Document;

(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release, amendment or waiver of, or consent to departure from, any guaranty, for all or any of the Obligations;

(d) any manner of application of collateral, or proceeds thereof, to all or any of the Obligations (unless such application satisfies the Obligations in full (other than contingent liabilities for which no claim has been made or is known to Guarantor)), or any manner of sale or other disposition of any collateral or any other assets of Sunnova SSA Management or any of its Subsidiaries for all or any of the Obligations under the Credit Agreement;

(e) any change, restructuring, termination, or dissolution of the corporate structure or existence of any Sunnova Party or any of their Subsidiaries;

(f) any other circumstance that might otherwise constitute a legal or equitable discharge or defense available to, or a discharge of, any Sunnova Party, as applicable, or a guarantor;

(g) any attempt or the absence of any attempt by, or on behalf of, the Administrative Agent or any of the Lenders, to collect, or to take any other action to enforce, all or any part of the Obligations;

(h) the election of any remedy by, or on behalf of, the Administrative Agent or any of the Lenders, in any proceeding of any Borrower instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section 1111(b)(2) of the Bankruptcy Code;

(i) any borrowing or grant of a security interest by any Borrower, as a debtor in possession, under Section 364 of the Bankruptcy Code;

 

5


(j) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims of the Administrative Agent or any of the Lenders against any Borrower for repayment of all or any part of the Obligations, including any amount due hereunder;

(k) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor; or

(l) any actual or alleged fraud by any party (other than the Administrative Agent, the Back-Up Servicer, any Successor Servicer under the Servicing Agreement, any Successor Manager under the Management Agreement or any of the Lenders).

In addition, this Guaranty may be revived and reinstated as further provided in Section 10 hereof.

SECTION 3. Waiver. (a) The Guarantor hereby waives promptness, diligence, notice of acceptance, presentments, demands for performance, protests and notices, including notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation, or incurring of new or additional Obligations or other financial accommodations, and any other notice (except as specifically provided for in any applicable Transaction Document) with respect to any of the Obligations and this Guaranty and any requirement that any Borrower or the Administrative Agent protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against any person or entity or any collateral. The Guarantor hereby waives notice of any Event of Default, Cash Trap Event, Early Amortization Event, Insolvency Event, Manager Termination Event, Sequential Interest Amortization Event or Servicer Termination Event under of the Credit Agreement or any applicable Transaction Document. The Guarantor assumes all responsibility for being and keeping itself informed of each Sunnova Party’s financial, business and legal condition and ongoing compliance with the applicable Transaction Documents, the nature, scope, and extent of the risks which the Guarantor assumes and incurs hereunder, and agrees that neither the Administrative Agent nor any Secured Party shall have any duty to advise the Guarantor of information known to them regarding such circumstances or risks.

(b) The Guarantor waives any right (except as shall be required by applicable statute and cannot be waived) to require the Administrative Agent or any other Secured Party to (i) proceed against any other Person, (ii) proceed against or exhaust any security held from the Guarantor or any other Person, or (iii) protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Person, or any collateral, or (iv) pursue any other remedy in any Secured Party’s power whatsoever. The Guarantor waives any defense based on or arising out of any defense of any other Person, based on or arising out of the disability any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Guarantor other than payment of the Guarantied Obligations in full (other than contingent liabilities for which no claim has been asserted or is known to Guarantor). The Administrative Agent may, in accordance with the applicable Transaction Document, foreclose upon any Collateral held by the Administrative Agent by one or more judicial or nonjudicial sales or other dispositions or may exercise any other right or remedy the

 

6


Administrative Agent or any other Secured Party may have against the Guarantor or any other Person, or any security, in each case, without affecting or impairing in any way the liability of the Guarantor hereunder except to the extent all Guarantied Obligations (other than contingent liabilities for which no claim has been asserted or is known to Guarantor) have been paid.

(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives:

(A) any right to assert against any Secured Party, any defense (legal or equitable), set-off, counterclaim, or claim which the Guarantor may now or at any time hereafter have against any Sunnova Party or any other party liable to any Secured Party arising out of, in connection with, or as a result of this Guaranty or the Transaction Documents or the transactions contemplated hereby or thereby;

(B) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or the Transaction Documents or any security therefor;

(C) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party including any defense based upon an impairment or elimination of the Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of the Guarantor against any other Sunnova Party or other guarantors or sureties; and

(D) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Obligations or Guarantied Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to the Guarantor’s liability hereunder.

(d) The Guarantor hereby agrees to subordinate any rights that it may now or hereafter acquire against any other Sunnova Party that arise from the existence, performance or enforcement of the Guarantor’s obligations under this Guaranty, including any right of reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any other Secured Party against the Guarantor, any other Sunnova Party or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, to the payment of all of the Guarantied Obligations (other than contingent liabilities for which no claim has been made or is known to Guarantor) in full.

 

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(e) Guarantor represents, warrants, and agrees that each of the waivers set forth above is made with full knowledge of its significance and consequences and that if any of such waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective to the maximum extent permitted by law.

SECTION 4. Subrogation. The Guarantor will not exercise any rights that it may acquire by way of subrogation under this Guaranty, by any performance hereunder or otherwise until all of the Guarantied Obligations (other than contingent liabilities for which no claim has been made or is known to Guarantor) have been performed in full. If any amount shall be paid to the Guarantor on account of such subrogation rights at any time prior to the performance in full of the Guarantied Obligations, such amount shall be held in trust for the benefit of the Borrowers or the Administrative Agent, as the case may be, and shall forthwith be paid to the Borrowers or the Administrative Agent, as the case may be, to be credited and applied to the Obligations, whether matured or unmatured, in accordance with the terms of the applicable Transaction Document, or to be held by the Borrowers or the Administrative Agent as the case may be, as collateral security for any Guarantied Obligations thereafter existing. If all the Guarantied Obligations under this Guaranty shall be performed in full, the Borrowers or the Administrative Agent, as the case may be, will, at the Guarantor’s request, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor, as applicable, of any interest in the Guarantied Obligations resulting from such payment by the Guarantor.

SECTION 5. Representations and Warranties and Covenants. Effective on, and as of, the Effective Date, unless otherwise specifically set forth in the applicable representation or warranty, the Guarantor hereby represents, warrants and covenants that:

(a) Existence. The Guarantor (i) is, and at all times during the term of this Guaranty will be, an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has, and at all times during the term of this Guaranty will have, all requisite corporate or other power, and all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor, and (iii) is qualified to do business and is in good standing in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary, except where failure so to qualify would not be reasonably likely (either individually or in the aggregate) to have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor.

(b) Financial Condition. The Guarantor has heretofore furnished to the Borrowers and the Administrative Agent, a copy of:

(i) the consolidated balance sheet of the Guarantor and its consolidated subsidiaries as of December 31, 2018, and the related consolidated statements of operations and of cash flows for the Guarantor and its consolidated subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous year, with the opinion thereon by PricewaterhouseCoopers LLP; and

 

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(ii) the unaudited consolidated balance sheet of the Guarantor and its consolidated subsidiaries as of March 31, 2019 and the related unaudited interim consolidated statements of operations and cash flows for the six months ended March 31, 2019 for the Guarantor and its consolidated subsidiaries, subject to year-end adjustments and the absence of footnotes.

All such financial statements are complete and correct and fairly present, in all material respects, the consolidated financial condition of the Guarantor and its subsidiaries and the consolidated results of their operations as at such dates and for such fiscal periods, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2018, through the date of this Guaranty, there has been no material adverse change in the consolidated business, operations or financial condition of the Guarantor and its consolidated subsidiaries, as applicable, taken as a whole from that set forth in said financial statements.

(c) Litigation. Other than the actions, suits, arbitrations or litigation disclosed in the Guarantor’s quarterly or annual financial statements, there are no actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened in writing) or other legal or arbitrable proceedings affecting the Guarantor or any of its Affiliates or affecting any of the property of any of them before any Governmental Authority (i) that questions or challenges the validity or enforceability of this Guaranty or any action to be taken in connection with the transactions contemplated hereby or (ii) which, individually or in the aggregate, if adversely determined, would reasonably be likely to have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor.

(d) No Breach. Neither (i) the execution and delivery of this Guaranty nor (ii) the consummation of the transactions herein contemplated in compliance with the terms and provisions hereof will conflict with or result in a breach of the charter, by-laws, limited liability company agreement, or operating agreement of the Guarantor, or any applicable law, rule or regulation, or any order, writ, injunction or decree of any Governmental Authority, or other material agreement or instrument to which the Guarantor is a party or by which any of its property is bound or to which it is subject, or constitute a default under any such material agreement or instrument or result in the creation or imposition of any Lien upon any property of the Guarantor or any of its subsidiaries pursuant to the terms of any such agreement or instrument.

(e) No Defaults or Violations. The Guarantor is not in default under any material agreement, contract or instrument, as applicable, to which the Guarantor is a party or by which it is or its properties are bound, or subject to or in violation of any statute or of any order or regulation of any court, administrative agency, arbitrator or governmental body

 

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that would have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor; and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such agreement, contract, instrument or indenture, or such a violation of any statute or of any order or regulation of any court, administrative agency, arbitrator or governmental body.

(f) Action. The Guarantor has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations hereunder; the execution, delivery and performance by the Guarantor of this Guaranty has been duly authorized by all necessary corporate or other action on its part and this Guaranty has been duly and validly executed and delivered by the Guarantor and constitutes a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights and by general principles of equity.

(g) Licenses. The Guarantor holds, and at all times during the term of this Guaranty will hold, all material licenses, certificates, franchises and permits from all governmental authorities necessary for the conduct of its business and has received no notice of proceedings relating to the revocation of any such license, certificate, franchise or permit which individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect its ability to perform its obligations under this Guaranty or any other documents or transactions contemplated hereunder.

(h) Approvals. No authorizations, approvals or consents of, and no filings or registrations with, any Governmental Authority or any securities exchange are necessary for the execution, delivery or performance by the Guarantor hereunder or for the legality, validity or enforceability hereof.

(i) Conditions Precedent. There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.

(j) Ownership. Effective on the Effective Date, (i) the Guarantor is the legal and beneficial owner of all of the outstanding equity interest in Intermediate Holdings, (ii) Intermediate Holdings is the legal and beneficial owner of all of the outstanding equity interest in the Seller, (iii) the Guarantor is the legal and beneficial owner of all of the outstanding equity interest in Sunnova SSA Management, (iv) the Seller is the legal and beneficial owner of all of the outstanding equity interest in SSA SPV1 and (v) SSA SPV1 is the legal and beneficial owner of all of the outstanding equity interest in SSA SPV2 and SSA SPV3.

(k) Taxes. The Guarantor and its subsidiaries have filed all U.S. federal income tax returns and all other material tax returns that are required to be filed by them and have paid, or have made provision for the payment of, all taxes due pursuant to such returns or pursuant to any assessment received by any of them, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Guarantor and its subsidiaries in respect of taxes and other governmental charges are, in the opinion of the Guarantor, adequate.

 

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(l) Foreign Taxes. Neither the Guarantor nor any Sunnova Party is aware of any Host Customer under a Solar Service Agreement who has withheld any portion of its payment due under such Solar Service Agreement because of the requirements of a foreign taxing authority, and no foreign taxing authority has contacted the Guarantor or any Sunnova Party concerning a withholding or other tax liability.

(m) Investment Company Act. The Guarantor is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the 1940 Act.

(n) True and Complete Disclosure. The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Guarantor to the Borrowers and the Administrative Agent in connection with the negotiation, preparation or delivery of this Guaranty or included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Guarantor to the Borrowers and the Administrative Agent in connection with this Guaranty and the transactions contemplated hereby and thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.

(o) ERISA. As of the Effective Date and at all times during the term of this Guaranty, (i) each “employee pension benefit plan,” as such term is defined in Section 3(2) of ERISA, that is sponsored, maintained, or contributed to by the Guarantor or its subsidiaries, other than any such plan that is a “multiemployer plan,” as such term is defined in Section 3(37) of ERISA, (a “Sunnova Pension Plan”) and, to the knowledge of the Guarantor, each “employee welfare benefit plan,” as such term is defined in Section 3(1) of ERISA, that is sponsored, maintained or contributed to by the Guarantor or its subsidiaries, is and will be in compliance in all material respects with, and has been and will be administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or state law; (ii) with respect to any Sunnova Pension Plan that is subject to Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, exists with respect to any plan year beginning prior to January 1, 2008, and with respect to any plan year beginning after December 31, 2007, no unpaid “minimum required contribution” (as defined in Section 430 of the Code or Section 303 of ERISA), whether or not waived, exists and, to the knowledge of the Guarantor, no event has occurred or circumstance exists that may result in an unpaid minimum required contribution as of the last day of the current plan year of any such plan; and (iii) the Guarantor and each of its Commonly Controlled Affiliates (as defined below) has made and will make substantially all

 

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contributions required under each “multiemployer plan,” as such term is defined in Section 3(37) of ERISA, to which the Guarantor or any of its Commonly Controlled Affiliates is obligated to contribute (a “Sunnova Multiemployer Plan”) and any required contribution that has not been paid would not, individually or in the aggregate, have a material adverse effect. As of the Effective Date, neither the Guarantor nor any of its Commonly Controlled Affiliates has been notified by the sponsor of a Sunnova Multiemployer Plan that such Sunnova Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, except where such reorganization or termination would not have a material adverse effect. After the Effective Date and at all times during the term of this Guaranty, the aggregate outstanding liability of the Guarantor and its Commonly Controlled Affiliates for any partial or complete withdrawal from any Sunnova Multiemployer Plan collectively does not exceed $10 million, and, to the knowledge of the Guarantor, no event has occurred or circumstance exists that presents a risk that the aggregate outstanding liability of the Guarantor and its Commonly Controlled Affiliates for any partial or complete withdrawal from any Sunnova Multiemployer Plan could collectively exceed $10 million at any time during the term of this Guaranty. For purposes of this Section 6(o), “Commonly Controlled Affiliates” means those direct or indirect affiliates of the Guarantor that would be considered a single employer with the Guarantor under Section 414(b), (c), (m), or (o) of the Code.

(p) Rank of Obligations. Its obligations under this Guaranty do rank and will rank at least pari passu in priority of payment and in all other respects with all of its unsecured indebtedness.

(q) Financial Reporting. The Guarantor shall furnish or cause to be furnished to the Borrowers and the Administrative Agent:

(i) Annual Reporting. Within one hundred eighty (180) days after the close of each fiscal year of the Guarantor, the unqualified audited financial statements for such fiscal year that shall include the consolidated balance sheet of the Guarantor and its consolidated subsidiaries, as of the end of such fiscal year, the related consolidated statements of income, of stockholders’ equity and of cash flows for such fiscal year, in each case, setting forth comparative figures for the preceding fiscal year, and, beginning with the fiscal year ending December 31, 2018, the assets and liabilities of the Borrowers as of the end of such fiscal year presented in a note or schedule to such financial statements of the Guarantor, and in each case prepared in accordance with GAAP and audited by a Nationally Recognized Accounting Firm selected by the Guarantor; and

(ii) Quarterly Reporting. Within sixty (60) days after the end of each fiscal quarter ending March 31, June 30 and September 30, the unaudited consolidated balance sheets and income statements for such fiscal quarter on a year-to-date basis for the Guarantor and its consolidated subsidiaries.

(r) Financial Covenants. As of the Effective Date and at all times during the term of this Guaranty, the following shall be true (collectively, the “Financial Covenants”):

 

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  (i)

the Guarantor shall have and maintain as of the last day of each fiscal quarter ending after the Effective Date a Tangible Net Worth (as defined below) of at least the sum of (A) fifty percent (50%) of all positive quarterly net income (as determined in accordance with GAAP) earned for each fiscal quarter ending after the Closing Date as of such date plus (B) $185,000,000;

 

  (ii)

the Guarantor shall have and maintain as of the last day of each fiscal quarter ending after the Effective Date, Working Capital (as defined below) available to it in an amount at least equal to $20,000,000; provided, however, that from the date hereof through August 31, 2019, the Guarantor shall only be required to have and maintain, as of the last day of each fiscal quarter ending during such period, Working Capital available to it in an amount at least equal to $5,000,000; and

 

  (iii)

no distribution with respect to the equity of the Guarantor shall be funded with the proceeds (directly or indirectly) any Advances made under the Credit Agreement;

provided that for purposes of determining compliance with the Financial Covenants in this Section 5(r), on or prior to the date that is fifteen (15) Business Days after the date on which it is determined that the Guarantor is not in compliance with any Financial Covenant (the “Equity Cure Period”), the Guarantor’s equity holders or any of their Affiliates shall have the right to make and fund an equity investment in the Guarantor in cash during such Equity Cure Period, and such cash, if so designated by the Guarantor, shall be included as unrestricted cash for purposes of calculating (A) “Tangible Net Worth” in clause (i) above, and (B) to the extent such amounts do not reduce undrawn capacity under equity or debt facilities included in the calculation, “Working Capital” in clause (ii) above (each such investment of cash, an “Equity Cure”); provided, further, that any actions taken by or with respect to the Guarantor during the Equity Cure Period in an effort to have the Guarantor comply with the Financial Covenants shall be promptly communicated to the Administrative Agent in writing and no more than (X) one (1) Equity Cure shall be permitted during each calendar year and (Y) two (2) Equity Cures shall be permitted during the term of Agreement, without advance notice to and consent of the Administrative Agent; provided, further, that so long as the Guarantor has delivered prior written notice to the Administrative Agent of its intention to exercise an Equity Cure, during the Equity Cure Period no Early Amortization Event shall be deemed to have occurred as a result of the breach of the Financial Covenants and neither the Administrative Agent nor any Lender shall exercise any rights or remedies under or arising out of this Section 5(r) or any other Transaction Document on the basis of any failure to comply with those Financial Covenants as to which notice of intent to exercise an Equity Cure has been delivered; provided, further, that if the Guarantor’s non-compliance with the Financial Covenants is cured by a permitted Equity Cure made within the Equity Cure Period, no Early Amortization Event shall be deemed to have occurred.

 

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For purposes of this Section 5(r), the following terms shall have the meanings set forth below:

Mezzanine Facility” shall mean (i) that certain Indenture dated as of April 24, 2017, as amended, restated, supplemented or otherwise modified from time to time (the “SEC Indenture”), between the Guarantor and Wilmington Trust, National Association, as trustee and collateral trustee and (ii) any indebtedness incurred by the Guarantor under any mezzanine financing facility or private high yield notes issuance, the proceeds of which are used to refinance in full the obligations under the SEC Indenture and otherwise for working capital purposes; provided that the Guarantor shall deliver prior written notice of its intention to enter into such facility or issue such notes not later than ten (10) days prior to the closing of such facility or issuance of such notes.

Tangible Net Worth” shall mean the amount which, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of the Guarantor, less all assets that are considered to be intangible assets under GAAP (including customer lists, goodwill, internal use software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs of the Guarantor) less “Total Liabilities” in a consolidated balance sheet of the Guarantor as reported in each set of quarterly financial statements delivered pursuant to Section 5(q)(ii) above; provided that the amount calculated in Section 5(r)(i) above and the term “Total Liabilities” shall carve out from the calculation thereof an aggregate principal amount of up to $50,000,000 then outstanding under any Mezzanine Facility as reported in each set of quarterly financial statements delivered pursuant to Section 5(q)(ii) above.

Working Capital” shall mean, as of any date, the cumulative amount of unrestricted cash and undrawn capacity under any equity or debt financing arrangement of the Guarantor or any Subsidiary of the Guarantor which is available (taking into account the ability of Guarantor or its applicable Subsidiary to satisfy any conditions to such availability as demonstrated to the reasonable satisfaction of the Administrative Agent) to pay for the Guarantor’s selling, asset origination and general and administrative expenses. For the avoidance of doubt, Working Capital shall include any undrawn capacity available (taking into account the ability of Guarantor or its applicable Subsidiary to satisfy any conditions to such availability as demonstrated to the reasonable satisfaction of the Administrative Agent) for the Guarantor’s general and administrative purposes under any other equity or debt financing arrangement of the Guarantor or any Subsidiary.

(s) Equity Cure Payment. Without duplication of any notice requirement set forth in Section 5(r), in the event that Parent or any Subsidiary thereof elects to make or cause an Affiliate to make an Equity Cure Payment, Parent shall notify the Borrowers, the Administrative Agent and the Servicer of such election on or prior to the date that is not later than three (3) Business Days prior to the Payment Date following the related Calculation Date.

 

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SECTION 6. Amendments to Guaranty. No amendment or waiver of any provision of this Guaranty, and no consent to any departure by the Guarantor here from, shall in any event be effective unless the same shall be in writing and signed by the Guarantor (only with respect to amendments), the Borrowers and the Administrative Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

SECTION 7. Addresses for Notices. All notices and other communications hereunder shall be in writing (which shall include facsimile communication), shall be personally delivered, express couriered, electronically transmitted (in which case a hard copy shall also be sent by regular mail) or mailed by registered or certified mail, if to the Borrowers, at the address set forth under the Borrower Representative’s name on the signature page hereof, if to the Administrative Agent, at the address set forth under its name on the signature page hereof and, if to the Guarantor, at the address set forth under its name on the signature page hereof, or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. Notices and communications by facsimile shall be effective when sent, and notices and communications sent by other means shall be effective when received.

SECTION 8. No Waiver; Remedies. No failure on the part of the Borrowers or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 9. Continuing Guaranty. This Guaranty is a continuing agreement and shall:

(a) remain in full force and effect until the performance in full of the Guarantied Obligations (other than contingent liabilities for which no claim has been asserted or is known to Guarantor s);

(b) be binding upon the Guarantor, its successors and assigns; and

(c) inure to the benefit of, and be enforceable by, the Borrowers, the Administrative Agent and their successors and assigns.

Notwithstanding anything contained in this Section 9 to the contrary, it is specifically agreed and is a condition of and inducement to the Guarantor to enter into this Guaranty, that all Servicer Obligations and Manager Obligations, as applicable, and performances, liabilities and duties of the Guarantor with respect to Sunnova SSA Management as the Servicer and as Manager and the provisions of the Servicing Agreement and the Management Agreement applicable to Sunnova SSA Management as the Servicer and as the Manager, as applicable, shall cease, terminate and be of no further force or effect immediately upon (i) the termination or the resignation of Sunnova SSA Management as the Servicer or Sunnova SSA Management as the Manager, as applicable, and (ii) the appointment of the Back-Up Servicer, any Successor Servicer or any Successor Manager, as applicable.

SECTION 10. Revival and Reinstatement. If (i) the incurrence or payment of the Guarantied Obligations or the obligations of the Guarantor under this Guaranty by the Guarantor or the transfer by the Guarantor to the Administrative Agent of any property of the Guarantor should for any reason subsequently be declared to be void or voidable under any state or federal law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to

 

15


fraudulent conveyances, preferences, or other voidable or recoverable payments of money or transfers of property (collectively, a “Voidable Transfer”), and if any Secured Party is required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that any Secured Party is required or elects to repay or restore, and as to all reasonable costs, expenses, and attorneys’ fees of the Secured Party related thereto, or (ii) any Guarantied Obligation that was a contingent liability becomes an actual liability (an “Actual Liability”), in each case the liability of the Guarantor automatically shall be revived, reinstated, and restored and shall exist as though, in the case of a Voidable Transfer, such Voidable Transfer had never been made and, in the case of an Actual Liability, as of the time such Actual Liability arose.

SECTION 11. Release of Guarantor. In the event that (a) the Guarantor ceases to control (within the meaning of the Securities Act) Sunnova SSA Management and the Borrowers, (b) a Servicer Termination Event or a Manager Termination Event has not occurred, (c) the new controlling person has agreed to assume the obligations of the Guarantor hereunder, (d) the Guarantor shall have received the written consent of the Administrative Agent, and (e) the Guarantor and such new controlling person shall have executed documents and provided opinions of counsel reasonably requested by the Administrative Agent, then the Guarantor shall be permitted to assign its obligations hereunder to such new controlling person, and upon such assignment, this Guaranty shall terminate with respect to the Guarantor and the Guarantor shall be released from its obligations hereunder without the necessity of any further action of the parties to this Guaranty

SECTION 12. GOVERNING LAW. THIS GUARANTY 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 13. JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK (NEW YORK COUNTY) OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

 

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SECTION 14. WAIVER OF JURY TRIAL. ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS GUARANTY.

SECTION 15. No Proceeding; Effects of Bankruptcy. The Guarantor hereby agrees that it will not, directly or indirectly, institute or cause to be instituted, or join any Person in instituting, against any Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law so long as there shall not have elapsed one year plus one day after payment in full of the Obligations (other than contingent liabilities for which no claim has been made or is known to Guarantor). To the extent permitted by law, this Guaranty shall survive the occurrence of any bankruptcy with respect to any Sunnova Party, any Borrower or any other Person. To the extent permitted by law, no automatic stay under the Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which any Sunnova Party or any Borrower is subject shall postpone the obligations of the Guarantor under this Guaranty.

SECTION 16. Counterparts. This Guaranty may be executed in counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same agreement. Delivery of an executed counterpart of this Guaranty by facsimile or other electronic transmission (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof and deemed an original.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

SUNNOVA ENERGY CORPORATION
By:   /s/ Christopher Smith
 

 

  Name:   Christopher Smith
  Title:   Senior Vice President, Head of
Finance and Treasurer
  Address:   20 Greenway Plaza
Suite 475
Houston, TX 77046

Signature Page to Amended and Restated Sunnova Island Limited Performance Guaranty


Acknowledged and Agreed:
SUNNOVA LAP HOLDINGS, LLC, as a Borrower
By:   /s/ Christopher Smith
 

 

  Name:   Christopher Smith
  Title:   Senior Vice President, Head of Finance and Treasurer
  Address:  

20 Greenway Plaza

Suite 475

Houston, TX 77046

 

SUNNOVA LAP I, LLC, as a Borrower
By:   /s/ Christopher Smith
 

 

  Name:   Christopher Smith
  Title:   Senior Vice President, Head of Finance and Treasurer
  Address:  

20 Greenway Plaza

Suite 475

Houston, TX 77046

 

SUNNOVA LAP II, LLC, as a Borrower
By:   /s/ Christopher Smith
 

 

  Name:   Christopher Smith
  Title:   Senior Vice President, Head of Finance and Treasurer
  Address:  

20 Greenway Plaza

Suite 475

Houston, TX 77046

Signature Page to Amended and Restated Sunnova Island Limited Performance Guaranty


CREDIT SUISSE AG, NEW YORK BRANCH,

as Administrative Agent

By:   /s/ Patrick Duggan
 

 

  Name:   Patrick Duggan
  Title:   Vice President

 

By:   /s/ Jeffrey Traola
 

 

  Name:   Jeffrey Traola
  Title:   Director
  Address:  

11 Madison Avenue, 4th Floor

New York, NY 10010

Attention: Asset Finance

Signature Page to Amended and Restated Sunnova Island Limited Performance Guaranty

EX-10.8 13 d709190dex108.htm EX-10.8 EX-10.8

Exhibit 10.8

EXECUTION VERSION

THIRD AMENDED AND RESTATED LIMITED PERFORMANCE GUARANTY

This THIRD AMENDED AND RESTATED LIMITED PERFORMANCE GUARANTY (this “Guaranty”), dated as of June 27, 2019 (the “Effective Date”), is made by SUNNOVA ENERGY CORPORATION, a Delaware corporation (the “Guarantor”), for the benefit of SUNNOVA EZ-OWN PORTFOLIO, LLC, a Delaware limited liability company (the “Borrower), and CREDIT SUISSE AG, NEW YORK BRANCH (the “Agent”), as agent under that certain 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”), by and among the Borrower, SLA Management, LLC (“Sunnova Management”), as manager (in such capacity, the “Manager”) and as servicer (in such capacity, the “Servicer”), Sunnova Asset Portfolio 7 Holdings, LLC, a Delaware limited liability company (“AP7 Holdings”), as seller (the “Seller” and together with Sunnova Management and the Guarantor, each a “Sunnova Party”), the Agent, the financial institutions that become parties thereto as lenders (the “Lenders”), Wells Fargo Bank, National Association, as paying agent, and U.S. Bank National Association, as custodian. Capitalized terms used but not defined herein shall have the meanings specified in the Credit Agreement.

PRELIMINARY STATEMENT:

WHEREAS, the Guarantor is party to that certain Amended and Restated Pledge and Limited Performance Guaranty dated as of March 27, 2019 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Existing Guaranty”), among the Guarantor and AP7 Holdings, for the benefit of the Borrower and the Agent;

WHEREAS, pursuant to the Existing Guaranty, AP7 Holdings granted a security interest in (A) the Cash Collateral Account (as such term is defined in the Existing Guaranty) and (B) its equity interests in the Borrower to secure the performance and payment by it of the Seller Obligations (as such term is defined in the Existing Guaranty);

WHEREAS, the Borrower, AP7 Holdings and the Guarantor have requested that the Existing Guaranty be amended and restated as reflected herein, and the Agent has agreed to such amendment and restatement;

WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make certain financial accommodations available to the Borrower pursuant to the terms and conditions thereof;

WHEREAS, in order to induce the Borrower, the Lenders and the Agent to enter into the Credit Agreement, the Guarantor entered into a Guaranty, pursuant to which the Guarantor agreed to guaranty (A) the performance and payment by Sunnova Management of its obligations, as Manager, under that certain Management Agreement, dated as of April 19, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Management Agreement”), by and among SPV, the Manager and the Agent, in its capacity as agent under the Credit Agreement, (B) the performance and payment by Sunnova Management of its obligations, as Servicer, under that certain Amended and Restated Servicing Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the


Servicing Agreement”), by and among SPV, the Servicer, Wells Fargo Bank, National Association, as back-up servicer (in such capacity, the “Back-Up Servicer”) and the Agent, in its capacity as agent under the Credit Agreement and (C) the performance and payment by the Seller of all refund obligations for breaches of representations and warranties in respect of the Solar Loans (as defined in the Credit Agreement) and related Solar Assets (as defined in the Credit Agreement) pursuant to that certain Sale and Contribution Agreement, dated as of April 19, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Sale and Contribution Agreement”), by and between the Seller and SPV; and

WHEREAS, SPV is a wholly-owned subsidiary of AP7 Holdings, AP7 Holdings is a wholly-owned subsidiary of Sunnova Intermediate Holdings, LLC, a Delaware limited liability company (“Intermediate Holdings”), and Intermediate Holdings is a wholly-owned subsidiary of the Guarantor, and, as such, the Guarantor will benefit by virtue of the financial accommodations extended to the Borrower by the Lenders.

NOW, THEREFORE, in consideration of the premises and in order to induce the Borrower, the Lenders and the Agent to enter into the Credit Agreement, the Guarantor hereby agrees as follows:

SECTION 1. Unconditional Undertaking. (a) Limited Performance Guaranty. The Guarantor hereby unconditionally and irrevocably undertakes and agrees with and for the benefit of the Borrower and the Agent to:

 

  (i)

cause the due and punctual performance and observance by Sunnova Management and its successors and assigns of all terms, covenants, conditions, agreements, undertakings, indemnities, and other obligations to be performed or observed by Sunnova Management under the Servicing Agreement in accordance with the respective terms thereof (collectively, the “Servicer Obligations”),

 

  (ii)

cause the due and punctual performance and observance by Sunnova Management and its successors and assigns of all terms, covenants, conditions, agreements, undertakings, indemnities, and other obligations to be performed or observed by Sunnova Management under the Management Agreement in accordance with the respective terms thereof (collectively, the “Manager Obligations”),

 

  (iii)

cause the due and punctual performance and observance by the Seller and its successor and assigns of all indemnities for Indemnified Amounts (as defined in the Sale and Contribution Agreement) and all refund obligations for breaches of representations and warranties in respect of Solar Loans (as defined in the Credit Agreement) pursuant to the Sale and Contribution Agreement (the “Seller Obligations”);

 

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  (iv)

upon the receipt of notice by the Borrower, the Manager or the Agent of the existence of a Defective Solar Loan, within sixty (60) days of such notice, cure in all material respects the circumstance or condition which has caused such Solar Loan to become a Defective Solar Loan or pay the Refund Price in respect of Defective Solar Loan pursuant to and in accordance with the Sale and Contribution Agreement (the “Defect Cure Obligation” and together with the Servicer Obligations, the Manager Obligations and the Seller Obligations, the “Guarantied Obligations”);

 

  (v)

pay any and all expenses (including reasonable and documented counsel fees and expenses) incurred by the Borrower or the Agent in enforcing their respective rights against Sunnova Management under the applicable Transaction Document (as defined in the Credit Agreement) and this Guaranty, in each case arising out of the Guarantied Obligations.

(b) If Sunnova Management fails in any manner whatsoever to perform or observe any of the Guarantied Obligations applicable to it when the same shall be required to be performed or observed under the applicable Transaction Document, after giving effect to any applicable grace or cure period thereunder, the Guarantor will itself, within three (3) Business Days of the earlier of (i) the Guarantor’s knowledge of such failure or (ii) demand from the Agent, duly and punctually perform or observe, or cause to be duly and punctually performed or observed, such Guarantied Obligations, and it shall not be a condition to the accrual of the obligation of the Guarantor hereunder to perform or observe any Guarantied Obligation (or to cause the same to be performed or observed) that the Borrower or the Agent shall have first made any request of or demand upon or given any notice to the Guarantor, any Sunnova Party, or any of their successors or assigns, or have instituted any action or proceeding against the Guarantor, any Sunnova Party, or their successors or assigns in respect thereof.

SECTION 2. Obligations Absolute. The Guarantor agrees that the Guarantied Obligations not performed by any other Sunnova Party will be performed by the Guarantor strictly in accordance with the terms of the applicable Transaction Document and this Guaranty. The obligations of the Guarantor under this Guaranty are independent of the Obligations under and as defined in the Credit Agreement (the “Borrower Obligations”), and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against any other Sunnova Party, as applicable, or whether any other Sunnova Party, as applicable, is joined in any such action or actions. Except as provided in Section 9 hereof, to the maximum extent permitted by Applicable Law, the liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of:

(a) any lack of validity or enforceability against any Sunnova Party of any applicable Transaction Document, or any other agreement or instrument relating thereto;

(b) any change in the time, manner or place of performance of, or in any other term of, all or any of the Borrower Obligations, or any other amendment or waiver of or any consent to departure from any applicable Transaction Document;

(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release, amendment or waiver of, or consent to departure from, any guaranty, for all or any of the Borrower Obligations;

 

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(d) any manner of application of collateral, or proceeds thereof, to all or any of the Borrower Obligations (unless such application satisfies the Borrower Obligations in full (other than contingent liabilities for which no claim has been made or is known to Guarantor)), or any manner of sale or other disposition of any collateral or any other assets of Sunnova Management, or any of its Subsidiaries for all or any of the Obligations under the Credit Agreement;

(e) any change, restructuring, termination, or dissolution of the corporate structure or existence of any Sunnova Party or any of their Subsidiaries;

(f) any other circumstance that might otherwise constitute a legal or equitable discharge or defense available to, or a discharge of, any Sunnova Party, as applicable, or a guarantor;

(g) any attempt or the absence of any attempt by, or on behalf of, the Agent or any of the Lenders, to collect, or to take any other action to enforce, all or any part of the Borrower Obligations;

(h) the election of any remedy by, or on behalf of, the Agent or any of the Lenders, in any proceeding of the Borrower instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section 1111(b)(2) of the Bankruptcy Code;

(i) any borrowing or grant of a security interest by the Borrower, as a debtor in possession, under Section 364 of the Bankruptcy Code;

(j) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims of the Agent or any of the Lenders against the Borrower for repayment of all or any part of the Borrower Obligations, including any amount due hereunder;

(k) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Borrower Obligations or of any security therefor; or

(l) any actual or alleged fraud by any party (other than the Agent, the Back-Up Servicer, any Successor Servicer under the Servicing Agreement, any Successor Manager under the Management Agreement, or any of the Lenders).

In addition, this Guaranty may be revived and reinstated as further provided in Section 10 hereof.

SECTION 3. Waiver. (a) The Guarantor hereby waives promptness, diligence, notice of acceptance, presentments, demands for performance, protests and notices, including notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence, creation, or incurring of new or additional Borrower Obligations or other financial accommodations, and any other notice (except as specifically provided for in any applicable Transaction Document) with respect to any of the Borrower Obligations and this Guaranty and any requirement that the Borrower or the Agent protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any

 

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action against any person or entity or any collateral. The Guarantor hereby waives notice of any Event of Default or Amortization Event under any of the Credit Agreements, any applicable Transaction Document. The Guarantor assumes all responsibility for being and keeping itself informed of each Sunnova Party’s financial, business and legal condition and ongoing compliance with the applicable Transaction Documents, the nature, scope, and extent of the risks which the Guarantor assumes and incurs hereunder, and agrees that neither the Agent nor any Secured Party shall have any duty to advise the Guarantor of information known to them regarding such circumstances or risks.

(b) The Guarantor waives any right (except as shall be required by applicable statute and cannot be waived) to require the Agent or any other Secured Party to (i) proceed against any other Person, (ii) proceed against or exhaust any security held from the Guarantor or any other Person, or (iii) protect, secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against any other Person, or any collateral, or (iv) pursue any other remedy in any Secured Party’s power whatsoever. The Guarantor waives any defense based on or arising out of any defense of any other Person, based on or arising out of the disability any other Person, or the validity, legality, or unenforceability of the Borrower Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Guarantor other than payment of the Guarantied Obligations in full (other than contingent liabilities for which no claim has been asserted or is known to Guarantor). The Agent may, in accordance with the applicable Transaction Document, foreclose upon any Collateral held by the Agent by one or more judicial or nonjudicial sales or other dispositions or may exercise any other right or remedy the Agent or any other Secured Party may have against the Guarantor or any other Person, or any security, in each case, without affecting or impairing in any way the liability of the Guarantor hereunder except to the extent all Guarantied Obligations (other than contingent liabilities for which no claim has been asserted or is known to Guarantor) have been paid.

(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives: (A) any right to assert against any Secured Party, any defense (legal or equitable), set-off, counterclaim, or claim which the Guarantor may now or at any time hereafter have against any Sunnova Party or any other party liable to any Secured Party arising out of, in connection with, or as a result of this Guaranty, the Transaction Documents or the transactions contemplated hereby or thereby; (B) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Borrower Obligations or the Transaction Documents or any security therefor; (C) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party including any defense based upon an impairment or elimination of the Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of the Guarantor against any other Sunnova Party or other guarantors or sureties; and (D) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Borrower Obligations or Guarantied Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to the Guarantor’s liability hereunder.

 

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(d) The Guarantor hereby agrees to subordinate any rights that it may now or hereafter acquire against any other Sunnova Party that arise from the existence, performance or enforcement of the Guarantor’s obligations under this Guaranty, including any right of reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Agent or any other Secured Party against the Guarantor, any other Sunnova Party or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, to the payment of all of the Guarantied Obligations (other than contingent liabilities for which no claim has been made or is known to Guarantor) in full.

(e) The Guarantor represents, warrants, and agrees that each of the waivers set forth above is made with full knowledge of its significance and consequences and that if any of such waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective to the maximum extent permitted by law.

SECTION 4. Subrogation. The Guarantor hereby agrees to subordinate any rights that it may acquire by way of subrogation under this Guaranty, by any performance hereunder or otherwise, to the payment of all of the Guarantied Obligations (other than contingent liabilities for which no claim has been made or is known to Guarantor) in full. If any amount shall be paid to the Guarantor on account of such subrogation rights at any time prior to the performance in full of the Guarantied Obligations, such amount shall be held in trust for the benefit of the Borrower or the Agent, as the case may be, and shall forthwith be paid to the Borrower or the Agent, as the case may be, to be credited and applied to the Borrower Obligations, whether matured or unmatured, in accordance with the terms of the applicable Transaction Document, or to be held by the Borrower or the Agent as the case may be, as collateral security for any Guarantied Obligations thereafter existing. If all the Guarantied Obligations under this Guaranty shall be performed in full, the Borrower or the Agent, as the case may be, will, at the Guarantor’s request, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor, as applicable, of any interest in the Guarantied Obligations resulting from such payment by the Guarantor.

SECTION 5. Representations and Warranties and Covenants. Effective on, and as of, the Effective Date, unless otherwise specifically set forth in the applicable representation or warranty, the Guarantor hereby represents, warrants and covenants that:

(a) Existence. The Guarantor (i) is, and at all times during the term of this Guaranty will be, an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has, and at all times during the term of this Guaranty will have, all requisite corporate or other power, and all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor, and (iii) is qualified to do business and is in good standing

 

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in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary, except where failure so to qualify would not be reasonably likely (either individually or in the aggregate) to have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor.

(b) Financial Condition. The Guarantor has heretofore furnished to the Borrower and the Agent, a copy of:

 

  (i)

the consolidated balance sheet of the Guarantor and its consolidated subsidiaries for the fiscal year ended December 31, 2018, and the related consolidated statements of operations and of cash flows for the Guarantor and its consolidated subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous year, with the opinion thereon by PricewaterhouseCoopers LLP; and

 

  (ii)

the unaudited consolidated balance sheet of the Guarantor and its consolidated subsidiaries for the fiscal quarter of the Guarantor ended March 31, 2019 setting forth the related unaudited interim consolidated statements of operations for such fiscal quarter and cash flows for such period for the Guarantor and its consolidated subsidiaries.

All such financial statements are complete and correct and fairly present, in all material respects, the consolidated financial condition of the Guarantor and its subsidiaries and the consolidated results of their operations as at such dates and for such fiscal periods, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2018, through the date of this Guaranty, there has been no material adverse change in the consolidated business, operations or financial condition of the Guarantor and its consolidated subsidiaries, as applicable, taken as a whole from that set forth in said financial statements.

(c) Litigation. Other than the actions, suits, arbitrations or litigation disclosed in the Guarantor’s quarterly or annual financial statements, there are no actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened in writing) or other legal or arbitrable proceedings affecting the Guarantor or any of its Affiliates or affecting any of the property of any of them before any Governmental Authority (i) that questions or challenges the validity or enforceability of this Guaranty or any action to be taken in connection with the transactions contemplated hereby or (ii) which, individually or in the aggregate, if adversely determined, would reasonably be likely to have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor.

(d) No Breach. Neither (i) the execution and delivery of this Guaranty nor (ii) the consummation of the transactions herein contemplated in compliance with the terms and provisions hereof will conflict with or result in a breach of the charter, by-laws of the Guarantor, or any applicable law, rule or regulation, or any order, writ, injunction or decree of any Governmental Authority, or other material agreement or instrument to which the Guarantor is a party or by which any of its property is bound or to which it is subject, or constitute a default under any such material agreement or instrument or result in the creation or imposition of any Lien upon any property of the Guarantor or any of its subsidiaries pursuant to the terms of any such agreement or instrument.

 

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(e) No Defaults or Violations. The Guarantor is not in default under any material agreement, contract or instrument, as applicable, to which the Guarantor is a party or by which it is or its properties are bound, or subject to or in violation of any statute or of any order or regulation of any court, administrative agency, arbitrator or governmental body that would have a material adverse effect on the ability of the Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Guarantor; and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such agreement, contract, instrument or indenture, or such a violation of any statute or of any order or regulation of any court, administrative agency, arbitrator or governmental body.

(f) Action. The Guarantor has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations hereunder; the execution, delivery and performance by the Guarantor of this Guaranty has been duly authorized by all necessary corporate or other action on its part and this Guaranty has been duly and validly executed and delivered by the Guarantor and constitutes a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights and by general principles of equity.

(g) Licenses. The Guarantor holds, and at all times during the term of this Guaranty will hold, all material licenses, certificates, franchises and permits from all governmental authorities necessary for the conduct of its business and has received no notice of proceedings relating to the revocation of any such license, certificate, franchise or permit which individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect its ability to perform its obligations under this Guaranty or any other documents or transactions contemplated hereunder.

(h) Approvals. No authorizations, approvals or consents of, and no filings or registrations with, any Governmental Authority or any securities exchange are necessary for the execution, delivery or performance by the Guarantor hereunder or for the legality, validity or enforceability hereof.

(i) Conditions Precedent. There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.

(j) Ownership. Effective on the Restatement Date, (i) the Guarantor is the legal and beneficial owner of all of the outstanding equity interest in Sunnova Management and (ii) AP7 Holdings is the legal and beneficial owner of all of the outstanding equity interest in the Borrower.

 

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(k) Taxes. The Guarantor and its subsidiaries have filed all U.S. federal income tax returns and all other material tax returns that are required to be filed by them and have paid, or have made provision for the payment of, all taxes due pursuant to such returns or pursuant to any assessment received by any of them, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Guarantor and its subsidiaries in respect of taxes and other governmental charges are, in the opinion of the Guarantor, adequate.

(l) Foreign Taxes. Neither the Guarantor nor any Sunnova Party is aware of any Host Customer under a Solar Service Agreement who has withheld any portion of its payment due under such Solar Service Agreement because of the requirements of a foreign taxing authority, and no foreign taxing authority has contacted the Guarantor or any Sunnova Party concerning a withholding or other tax liability.

(m) Investment Company Act. The Guarantor is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the 1940 Act.

(n) True and Complete Disclosure. The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Guarantor to the Borrower and the Agent in connection with the negotiation, preparation or delivery of this Guaranty or included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Guarantor to the Borrower and the Agent in connection with this Guaranty and the transactions contemplated hereby and thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.

(o) ERISA. As of the Effective Date and at all times during the term of this Guaranty, (i) each “employee pension benefit plan,” as such term is defined in Section 3(2) of ERISA, that is sponsored, maintained, or contributed to by the Guarantor or its subsidiaries, other than any such plan that is a “multiemployer plan,” as such term is defined in Section 3(37) of ERISA, (a “Sunnova Pension Plan”) and, to the knowledge of the Guarantor, each “employee welfare benefit plan,” as such term is defined in Section 3(1) of ERISA, that is sponsored, maintained or contributed to by the Guarantor or its subsidiaries, is and will be in compliance in all material respects with, and has been and will be administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or state law; (ii) with respect to any Sunnova Pension Plan that is subject to Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, exists with respect to any plan year beginning prior to January 1, 2008, and with respect to any plan year beginning after December 31, 2007, no unpaid “minimum required contribution” (as defined in Section 430 of the Code or Section 303 of ERISA), whether or not waived, exists and, to the knowledge of the Guarantor, no event has occurred or circumstance exists that may result in an unpaid minimum required contribution as of the last day of the current plan year of any such plan; and (iii) the Guarantor and each of its Commonly Controlled Affiliates (as defined below) has made and will make substantially all contributions required under each “multiemployer plan,” as such term is defined in Section 3(37)

 

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of ERISA, to which the Guarantor or any of its Commonly Controlled Affiliates is obligated to contribute (a “Sunnova Multiemployer Plan”) and any required contribution that has not been paid would not, individually or in the aggregate, have a material adverse effect. As of the Effective Date, neither the Guarantor nor any of its Commonly Controlled Affiliates has been notified by the sponsor of a Sunnova Multiemployer Plan that such Sunnova Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, except where such reorganization or termination would not have a material adverse effect. After the Effective Date and at all times during the term of this Guaranty, the aggregate outstanding liability of the Guarantor and its Commonly Controlled Affiliates for any partial or complete withdrawal from any Sunnova Multiemployer Plan collectively does not exceed $10 million, and, to the knowledge of the Guarantor, no event has occurred or circumstance exists that presents a risk that the aggregate outstanding liability of the Guarantor and its Commonly Controlled Affiliates for any partial or complete withdrawal from any Sunnova Multiemployer Plan could collectively exceed $10 million at any time during the term of this Guaranty. For purposes of this Section 5(o), “Commonly Controlled Affiliates” means those direct or indirect affiliates of the Guarantor that would be considered a single employer with the Guarantor under Section 414(b), (c), (m), or (o) of the Code.

(p) Rank of Obligations. Its obligations under this Guaranty do rank and will rank at least pari passu in priority of payment and in all other respects with all of its unsecured indebtedness.

(q) Financial Reporting. The Guarantor shall furnish or cause to be furnished to the Borrower and the Agent:

 

  (i)

Annual Reporting. Within one hundred eighty (180) days after the close of each fiscal year of the Guarantor, the unqualified audited financial statements for such fiscal year that shall include the consolidated balance sheet of the Guarantor and its consolidated subsidiaries, as of the end of such fiscal year, the related consolidated statements of income, of stockholders’ equity and of cash flows for such fiscal year, in each case, setting forth comparative figures for the preceding fiscal year, and, beginning with the fiscal year ending December 31, 2018, the assets and liabilities of the Borrower as of the end of such fiscal year presented in a note or schedule to such financial statements of the Guarantor, and in each case prepared in accordance with GAAP and audited by a Nationally Recognized Accounting Firm selected by the Guarantor; and

 

  (ii)

Quarterly Reporting. Within sixty (60) days after the end of each of its fiscal quarters, the unaudited consolidated balance sheets and income statements for such fiscal quarter on a year-to-date basis for the Guarantor and its consolidated subsidiaries.

 

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(r) Financial Covenants. As of the Effective Date and at all times during the term of this Guaranty, the following shall be true (collectively, the “Financial Covenants”):

 

  (i)

the Guarantor shall have and maintain as of the last day of each fiscal quarter ending after the Effective Date a Tangible Net Worth (as defined below) of at least the sum of (A) fifty percent (50%) of all positive quarterly net income (as determined in accordance with GAAP) earned for each fiscal quarter ending after the Closing Date as of such date plus (B) $185,000,000;

 

  (ii)

the Guarantor shall have and maintain as of the last day of each fiscal quarter ending after the Effective Date, Working Capital (as defined below) available to it in an amount at least equal to $20,000,000; provided, however, that from the date hereof through August 31, 2019, the Guarantor shall only be required to have and maintain, as of the last day of each fiscal quarter ending during such period, Working Capital available to it in an amount at least equal to $5,000,000; and

 

  (iii)

no distribution with respect to the equity of the Guarantor shall be funded with the proceeds (directly or indirectly) of Advances made on the Closing Date under the Credit Agreement;

provided that for purposes of determining compliance with the Financial Covenants in this Section 5(r), on or prior to the date that is fifteen (15) Business Days after the date on which it is determined that the Guarantor is not in compliance with any Financial Covenant (the “Equity Cure Period”), the Guarantor’s equity holders or any of their Affiliates shall have the right to make and fund an equity investment in the Guarantor in cash during such Equity Cure Period, and such cash, if so designated by the Guarantor, shall be included as unrestricted cash for purposes of calculating (a) “Tangible Net Worth” in clause (i) above, and (b) to the extent such amounts do not reduce undrawn capacity under equity or debt facilities included in the calculation, “Working Capital” in clause (ii) above (each such investment of cash, an “Equity Cure”); provided, further, that any actions taken by or with respect to the Guarantor during the Equity Cure Period in an effort to have the Guarantor comply with the Financial Covenants shall be promptly communicated to the Agent in writing and no more than (A) one (1) Equity Cure shall be permitted during each calendar year and (B) two (2) Equity Cures shall be permitted during the term of Agreement, without advance notice to and consent of the Agent; provided, further, that so long as the Guarantor has delivered prior written notice to the Agent of its intention to exercise an Equity Cure, during the Equity Cure Period no Amortization Event as defined in the Credit Agreement shall be deemed to have occurred and neither the Agent nor any Lender shall exercise any rights or remedies under or arising out of this Section 5(r) or any other Transaction Document on the basis of any failure to comply with those Financial Covenants as to which notice of intent to exercise an Equity Cure has been delivered; provided, further, that if the Guarantor’s non-compliance with the Financial Covenants is cured by a permitted Equity Cure made within the Equity Cure Period, no Amortization Event as defined in the Credit Agreement shall be deemed to have occurred.

 

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For purposes of this Section 5(r), the following terms shall have the meanings set forth below:

Mezzanine Facility” shall mean (i) that certain Indenture dated as of April 24, 2017, as amended, restated, supplemented or otherwise modified from time to time (the “SEC Indenture”), between the Guarantor and Wilmington Trust, National Association, as trustee and collateral trustee, and (ii) any indebtedness incurred by the Guarantor under any mezzanine financing facility or private high yield notes issuance, the proceeds of which are used to refinance in full the obligations under the SEC Indenture and otherwise for working capital purposes; provided that the Guarantor shall deliver prior written notice of its intention to enter into such facility or issue such notes not later than ten (10) days prior to the closing of such facility or issuance of such notes.

Tangible Net Worth” shall mean the amount which, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of the Guarantor, less all assets that are considered to be intangible assets under GAAP (including customer lists, goodwill, internal use software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs of the Guarantor) less “Total Liabilities” in a consolidated balance sheet of the Guarantor as reported in each set of quarterly financial statements delivered pursuant to Section 5(q)(ii) above; provided that the amount calculated in Section 5(r)(i) above and the term “Total Liabilities” shall carve out from the calculation thereof an aggregate principal amount of up to $50,000,000 then outstanding under any Mezzanine Facility as reported in each set of quarterly financial statements delivered pursuant to Section 5(q)(ii) above.

Working Capital” shall mean, as of any date, the cumulative amount of unrestricted cash and undrawn capacity under any equity or debt financing arrangement of the Guarantor or any Subsidiary of the Guarantor which is available (taking into account the ability of Guarantor or its applicable Subsidiary to satisfy any conditions to such availability as demonstrated to the reasonable satisfaction of the Agent) to pay for the Guarantor’s selling, asset origination and general and administrative expenses. For the avoidance of doubt, Working Capital shall include any undrawn capacity available (taking into account the ability of Guarantor or its applicable Subsidiary to satisfy any conditions to such availability as demonstrated to the reasonable satisfaction of the Agent) for the Guarantor’s general and administrative purposes under any other equity or debt financing arrangement of the Guarantor or any Subsidiary.

SECTION 6. Amendments to Guaranty. No amendment or waiver of any provision of this Guaranty, and no consent to any departure by the Guarantor here from, shall in any event be effective unless the same shall be in writing and signed by the Guarantor (only with respect to amendments), the Borrower and the Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

SECTION 7. Addresses for Notices. All notices and other communications hereunder shall be in writing (which shall include facsimile communication), shall be personally delivered, express couriered, electronically transmitted (in which case a hard copy shall also be sent by regular mail) or mailed by registered or certified mail, if to the Borrower, at the address set forth under the Borrower’s name on the signature page hereof, if to the Agent, at the address set forth under its name on the signature page hereof and, if to the Guarantor, at the address set forth

 

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under its name on the signature page hereof, or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. Notices and communications by facsimile shall be effective when sent, and notices and communications sent by other means shall be effective when received.

SECTION 8. No Waiver; Remedies. No failure on the part of the Borrower or the Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 9. Continuing Guaranty. This Guaranty is a continuing agreement and shall, to the maximum extent permitted by Applicable Law:

(a) remain in full force and effect until the performance in full of the Guarantied Obligations (other than contingent liabilities for which no claim has been asserted or is known to Guarantor);

(b) be binding upon the Guarantor, its successors and assigns; and

(c) inure to the benefit of, and be enforceable by, the Borrower, the Agent and their successors and assigns.

Notwithstanding anything contained in this Section 9 to the contrary, it is specifically agreed and is a condition of and inducement to the Guarantor to enter into this Guaranty, that all Servicer Obligations, Manager Obligations, as applicable, and performances, liabilities and duties of the Guarantor with respect to Sunnova Management as the Servicer, or Sunnova Management as the Manager, as applicable, and the provisions of the Servicing Agreement and the Management Agreement applicable to Sunnova Management as the Servicer, or Sunnova Management as the Manager, as applicable, shall cease, terminate and be of no further force or effect immediately upon (x) the termination or the resignation of Sunnova Management as the Servicer or Sunnova Management as the Manager, as applicable, and (y) the appointment of the Back-up Servicer, any Successor Servicer (as defined in the Servicing Agreement) or any Successor Manager (as defined in the Management Agreement), as applicable; provided that such termination shall not relieve the Guarantor from any liability for Guarantied Obligations that accrued prior to or that are based on any act, omission or other event that occurred prior to the date of such termination or resignation and appointment.

SECTION 10. Revival and Reinstatement. If the incurrence or payment of the Guarantied Obligations or the obligations of the Guarantor under this Guaranty by the Guarantor or the transfer by the Guarantor to the Agent of any property of the Guarantor should for any reason subsequently be declared to be void or voidable under any state or federal law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or other voidable or recoverable payments of money or transfers of property (collectively, a “Voidable Transfer”), and if any Secured Party is required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that any

 

13


Secured Party is required or elects to repay or restore, and as to all reasonable costs, expenses, and attorneys’ fees of the Secured Party related thereto, the liability of the Guarantor automatically shall be revived, reinstated, and restored and shall exist as though, in the case of a Voidable Transfer, such Voidable Transfer had never been made.

SECTION 11. Release of Guarantor. In the event that (a) the Guarantor ceases to control (within the meaning of the Securities Act) Sunnova Management and the Borrowers, (b) a Servicer Termination Event or a Manager Termination Event has not occurred, (c) the new controlling person has agreed to assume the obligations of the Guarantor hereunder, (d) the Guarantor shall have received the written consent of the Administrative Agent, and (e) the Guarantor and such new controlling person shall have executed documents and provided opinions of counsel reasonably requested by the Administrative Agent, then the Guarantor shall be permitted to assign its obligations hereunder to such new controlling person, and upon such assignment, this Guaranty shall terminate with respect to the Guarantor and the Guarantor shall be released from its obligations hereunder without the necessity of any further action of the parties to this Guaranty.

SECTION 12. GOVERNING LAW. THIS GUARANTY 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 13. JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK (NEW YORK COUNTY) OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

SECTION 14. WAIVER OF JURY TRIAL. ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT

 

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THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS GUARANTY.

SECTION 15. No Proceeding; Effects of Bankruptcy. The Guarantor hereby agrees that it will not, directly or indirectly, institute or cause to be instituted, or join any Person in instituting, against the Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law so long as there shall not have elapsed one year plus one day after payment in full of the Borrower Obligations (other than contingent liabilities for which no claim has been made or is known to Guarantor). To the extent permitted by law, this Guaranty shall survive the occurrence of any bankruptcy with respect to any Sunnova Party, the Borrower or any other Person. To the extent permitted by law, no automatic stay under the Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which any Sunnova Party or the Borrower is subject shall postpone the obligations of the Guarantor under this Guaranty.

SECTION 16. Counterparts. This Guaranty may be executed in counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same agreement. Delivery of an executed counterpart of this Guaranty by facsimile or other electronic transmission (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof and deemed an original.

SECTION 17. Amendment and Restatement. This Guaranty amends and restates the Existing Guaranty in all respects.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

SUNNOVA ENERGY CORPORATION
By:   /s/ Christopher Smith
  Name:       Christopher Smith
  Title:         Senior Vice President, Head of
                    Finance and Treasurer
  Address:    20 Greenway Plaza
                    Suite 475
                    Houston, TX 77046

 

Signature Page to Third Amended and Restated Limited Performance Guaranty


Acknowledged and Agreed:

 

SUNNOVA EZ-OWN PORTFOLIO, LLC, as Borrower
By:    /s/ Christopher Smith
  Name:       Christopher Smith
  Title:         Senior Vice President, Head of Finance and Treasurer
  Address:    20 Greenway Plaza
                    Suite 475
                    Houston, TX 77046

 

Signature Page to Third Amended and Restated Limited Performance Guaranty


CREDIT SUISSE AG, NEW YORK BRANCH,
as Agent
By:   /s/ Patrick Duggan
  Name: Patrick Duggan
  Title:   Vice President
By:   /s/ Jeffrey Traola
  Name:        Jeffrey Traola
  Title:          Director
  Address:    11 Madison Avenue, 4th Floor
                     New York, NY 10010
                     Attention: Asset Finance

 

 

 

Signature Page to Third Amended and Restated Limited Performance Guaranty

EX-10.10 14 d709190dex1010.htm EX-10.10 EX-10.10

Exhibit 10.10

Execution Version

AMENDED AND RESTATED PARENT GUARANTY

This AMENDED AND RESTATED PARENT GUARANTY (this “Guaranty”), dated as of June 27, 2019 (the “Effective Date”), is made by SUNNOVA ENERGY CORPORATION, a Delaware corporation (the “Parent Guarantor”), in favor of SUNNOVA TEP II HOLDINGS, LLC, a Delaware limited liability company (the “Borrower”), and CREDIT SUISSE AG, NEW YORK BRANCH (the “Administrative Agent”), as agent under that certain Amended and Restated Credit Agreement, dated as of March 29, 2019 (including all annexes, exhibits and schedules thereto, and as from time to time amended, restated, supplemented or otherwise modified, the “Credit Agreement”), by and among the Borrower, Sunnova TE Management II, LLC, as facility administrator (“Sunnova Management” or in such capacity, the “Facility Administrator”), the Administrative Agent, the financial institutions that become parties thereto as lenders (the “Lenders”), the Funding Administrative Agents named therein, Wells Fargo Bank, National Association, as paying agent and U.S. Bank National Association, as verification agent. Capitalized terms used but not defined herein shall have the meanings specified in the Credit Agreement.

RECITALS

WHEREAS, the Parent Guarantor, the Borrower, and the Administrative Agent entered into that certain Parent Guaranty dated as of August 17, 2018 (“Original Guaranty”) in order to induce the Borrower and the Administrative Agent to enter into the Credit Agreement, and pursuant to which the Parent Guarantor agreed to (A) guaranty the performance and observance by Sunnova Management of its obligations as Facility Administrator under that certain Facility Administration Agreement, dated as of August 17, 2018, by and among the Borrower, the Facility Administrator and the Administrative Agent, and (B) pay Liquidated Damages Amounts to the Borrower for breaches of representations and warranties in respect of the Solar Assets; and

WHEREAS, the parties hereto wish to amend and restate the Original Guaranty in its entirety.

NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the parties hereby agree as follows:

SECTION 1. Unconditional Undertaking. (a) The Parent Guarantor hereby unconditionally and irrevocably undertakes and agrees with and for the benefit of the Borrower and the Administrative Agent to:

 

  (i)

cause the due and punctual performance and observance by Sunnova Management and its successors and assigns of all terms, covenants, conditions, agreements, undertakings and other obligations to be performed or observed by Sunnova Management under the Facility Administration Agreement in accordance with the respective terms thereof (collectively, the “Obligations”),


  (ii)

upon the receipt of notice by the Borrower or the Administrative Agent of the existence of a Defective Solar Asset, within sixty (60) days of such notice, cure in all material respects the circumstance or condition which has caused such Solar Asset to become a Defective Solar Asset or pay the Liquidated Damages Amount in respect of Defective Solar Asset; provided that instead of paying the Liquidated Damages Amount in respect of a SAP II Solar Asset, the Parent may instead elect in its sole discretion, subject to the satisfaction of the conditions set forth in Section 2.8 of the Credit Agreement, to substitute one or more Substitute Solar Assets for such Defective Solar Asset and pay the related Substitution Shortfall Amount, if any, on any date prior to expiration of such sixty (60) day cure period, and

 

  (iii)

pay any and all expenses (including reasonable counsel fees and expenses) incurred by the Borrower or the Administrative Agent in enforcing their respective rights against Sunnova Management under the Facility Administration Agreement and this Guaranty.

For purposes of this Section 1, the following terms shall have the meanings set forth below:

Liquidated Damages Amount” shall mean, with respect to any Solar Asset, an amount equal to the present value of the remaining and unpaid stream of Net Scheduled Payments for such Solar Asset for the period beginning on such date of determination, based upon discounting such Net Scheduled Payments to such date of determination at an annual rate equal to the Discount Rate, determined immediately prior to such Solar Assets becoming a Transferable Solar Asset.

(b) If Sunnova Management fails in any manner whatsoever to perform or observe any of the Obligations applicable to it when the same shall be required to be performed or observed under the Facility Administration Agreement, after giving effect to any applicable grace or cure period thereunder, the Parent Guarantor will itself, within three Business Days of the earlier of (i) the Parent Guarantor’s knowledge of such failure or (ii) demand from the Administrative Agent, duly and punctually perform or observe, or cause to be duly and punctually performed or observed, such Obligations, and it shall not be a condition to the accrual of the obligation of the Parent Guarantor hereunder to perform or observe any Obligation (or to cause the same to be performed or observed) that the Borrower or the Administrative Agent shall have first made any request of or demand upon or given any notice to the Parent Guarantor or to Sunnova Management, as applicable, or its successors or assigns, or have instituted any action or proceeding against the Parent Guarantor or Sunnova Management, as applicable, or its successors or assigns in respect thereof.

(c) Upon the requirement to pay Liquidated Damages Amounts or Substitution Shortfall Amounts, if any, in accordance with Section 1(a)(ii), the Borrower and the Administrative Agent hereby direct and the Parent hereby agrees to pay all such Liquidated Damages Amounts or Substitution Shortfall Amount, if any, by remitting all such amounts in immediately available funds to the Paying Agent for deposit into the Collection Account.

SECTION 2. Obligation Absolute. The Parent Guarantor agrees that, to the maximum extent permitted by Applicable Law, the Obligations not performed by Sunnova Management will be performed by the Parent Guarantor strictly in accordance with the terms of the Facility Administration Agreement regardless of any law, regulation or order now or hereafter in effect in

 

2


any jurisdiction affecting any of such terms or the rights of Sunnova Management with respect thereto. The obligations of the Parent Guarantor under this Guaranty are independent of the Obligations, and a separate action or actions may be brought and prosecuted against the Parent Guarantor to enforce this Guaranty, to the maximum extent permitted by Applicable Law, irrespective of whether any action is brought against Sunnova Management or whether Sunnova Management is joined in any such action or actions. Except as provided in Section 10 hereof, to the maximum extent permitted by Applicable Law, the liability of the Parent Guarantor under this Guaranty shall be absolute and unconditional irrespective of:

(a) any lack of validity or enforceability against Sunnova Management of the Facility Administration Agreement or any other agreement or instrument relating thereto;

(b) any change in the time, manner or place of performance of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from any Transaction Document;

(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release, amendment or waiver of, or consent to departure from, any guaranty, for all or any of the Obligations;

(d) any manner of application of collateral, or proceeds thereof, to all or any of the Obligations (unless such application satisfies the Obligations in full), or any manner of sale or other disposition of any collateral or any other assets of Sunnova Management or any of its subsidiaries for all or any of the Obligations;

(e) any change, restructuring or termination of the corporate structure or existence of Sunnova Management, the Parent Guarantor or any of their respective subsidiaries;

(f) any other circumstance that might otherwise constitute a legal or equitable discharge or defense available to, or a discharge of, Sunnova Management, the Parent Guarantor, as applicable, or a guarantor;

(g) the absence of any attempt by, or on behalf of, the Administrative Agent or any of the Lenders, to collect, or to take any other action to enforce, all or any part of the Loan Notes or the Obligations;

(h) the election of any remedy by, or on behalf of, the Administrative Agent or any of the Lenders, in any proceeding of the Borrower instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”), of the application of Section 1111(b)(2) of the Bankruptcy Code;

(i) any borrowing or grant of a security interest by the Borrower, as a debtor in possession, under Section 364 of the Bankruptcy Code;

 

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(j) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the claims of the Administrative Agent or any of the Lenders against the Borrower for repayment of all or any part of the Obligations (not as defined herein, but as defined in the Credit Agreement), including any amount due hereunder; or

(k) any actual or alleged fraud by any party (other than the Administrative Agent, any Successor Facility Administrator, any of the Lenders, the Paying Agent or the Verification Agent).

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by the Borrower or the Administrative Agent upon the insolvency, bankruptcy or reorganization of Sunnova Management or the Parent Guarantor, as applicable, or otherwise, to the maximum extent permitted by Applicable Law, all as though payment had not been made.

SECTION 3. Waiver. The Parent Guarantor hereby waives, to the maximum extent permitted by Applicable Law, promptness, diligence, notice of acceptance and any other notice (except as specifically provided for in the Facility Administration Agreement) with respect to any of the Obligations and this Guaranty and any requirement that the Borrower or the Administrative Agent protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against any person or entity or any collateral.

SECTION 4. Subrogation. The Parent Guarantor will not exercise any rights that it may acquire by way of subrogation under this Guaranty, by any performance hereunder or otherwise, until all the Obligations and all other amounts payable under this Guaranty and the Facility Administration Agreement shall have been performed in full. If any amount shall be paid to the Parent Guarantor on account of such subrogation rights at any time prior to the performance in full of the Obligations under this Guaranty and the Facility Administration Agreement, such amount shall be held in trust for the benefit of the Borrower or the Administrative Agent, as the case may be, and shall forthwith be paid to the Borrower or the Administrative Agent, as the case may be, to be credited and applied to the Obligations, whether matured or unmatured, in accordance with the terms of the Facility Administration Agreement or to be held by the Borrower or the Administrative Agent as the case may be, as collateral security for any Obligations thereafter existing. If all the Obligations under this Guaranty shall be performed in full, the Borrower or the Administrative Agent, as the case may be, will, at the Parent Guarantor’s request, execute and deliver to the Parent Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Parent Guarantor of any interest in the Obligations resulting from such payment by the Parent Guarantor.

 

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SECTION 5. Representations and Warranties and Covenants. Effective on, and as of, the Effective Date, unless otherwise specifically set forth in the applicable representation or warranty, the Parent Guarantor hereby represents, warrants and covenants that:

(a) Existence. The Parent Guarantor (i) is, and at all times during the term of this Guaranty will be, an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has, and at all times during the term of this Guaranty will have, all requisite corporate or other power, and all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a material adverse effect on the ability of the Parent Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Parent Guarantor, and (iii) is qualified to do business and is in good standing in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary, except where failure so to qualify would not be reasonably likely (either individually or in the aggregate) to have a material adverse effect on the ability of the Parent Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Parent Guarantor.

(b) Financial Condition. The Parent Guarantor has heretofore furnished to the Borrower and the Administrative Agent, a copy of:

 

  (i)

the consolidated balance sheet of the Parent Guarantor and its consolidated subsidiaries for the fiscal year ended December 31, 2018, and the related consolidated statements of operations and of cash flows for the Parent Guarantor and its consolidated subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous year, with the opinion thereon by PricewaterhouseCoopers LLP; and

 

  (ii)

the unaudited consolidated balance sheet of the Parent Guarantor and its consolidated subsidiaries for the fiscal quarter of the Parent Guarantor ended March 31, 2019 setting forth the related unaudited interim consolidated statements of operations for such fiscal quarter and cash flows for such period for the Parent Guarantor and its consolidated subsidiaries.

All such financial statements are complete and correct and fairly present, in all material respects, the consolidated financial condition of the Parent Guarantor and its subsidiaries and the consolidated results of their operations as at such dates and for such fiscal periods, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2018, through the date of this Guaranty, there has been no material adverse change in the consolidated business, operations or financial condition of the Parent Guarantor and its consolidated subsidiaries, as applicable, taken as a whole from that set forth in said financial statements.

(c) Litigation. Other than the actions, suits, arbitrations or litigation disclosed in the Parent Guarantor’s quarterly or annual financial statements, there are no actions, suits, arbitrations, investigations (including, without limitation, any of the foregoing which are pending or threatened) or other legal or arbitrable proceedings affecting the Parent Guarantor or any of its Affiliates or affecting any of the property of any of them before any Governmental Authority (i) that questions or challenges the validity or enforceability of this Guaranty or any action to be

 

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taken in connection with the transactions contemplated hereby or (ii) which, individually or in the aggregate, if adversely determined, would reasonably be likely to have a material adverse effect on the ability of the Parent Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Parent Guarantor.

(d) No Breach. Neither (i) the execution and delivery of this Guaranty nor (ii) the consummation of the transactions herein contemplated in compliance with the terms and provisions hereof will conflict with or result in a breach of the charter or by-laws of the Parent Guarantor, or any applicable law, rule or regulation, or any order, writ, injunction or decree of any Governmental Authority, or other material agreement or instrument to which the Parent Guarantor is a party or by which any of its property is bound or to which it is subject, or constitute a default under any such material agreement or instrument or result in the creation or imposition of any Lien upon any property of the Parent Guarantor or any of its subsidiaries pursuant to the terms of any such agreement or instrument.

(e) No Defaults or Violations. The Parent Guarantor is not in default under any material agreement, contract or instrument, as applicable, to which the Parent Guarantor is a party or by which it is or its properties are bound, or subject to or in violation of any statute or of any order or regulation of any court, administrative agency, arbitrator or governmental body that would have a material adverse effect on the ability of the Parent Guarantor to perform its obligations under this Guaranty or the business, operations, financial condition, or assets of the Parent Guarantor; and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such agreement, contract, instrument or indenture, or such a violation of any statute or of any order or regulation of any court, administrative agency, arbitrator or governmental body.

(f) Action. The Parent Guarantor has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations hereunder; the execution, delivery and performance by the Parent Guarantor of this Guaranty has been duly authorized by all necessary corporate or other action on its part and this Guaranty has been duly and validly executed and delivered by the Parent Guarantor and constitutes a legal, valid and binding obligation of the Parent Guarantor, enforceable against the Parent Guarantor in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights and by general principles of equity.

(g) Licenses. The Parent Guarantor holds, and at all times during the term of this Guaranty will hold, all material licenses, certificates, franchises and permits from all governmental authorities necessary for the conduct of its business and has received no notice of proceedings relating to the revocation of any such license, certificate, franchise or permit which individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect its ability to perform its obligations under this Guaranty or any other documents or transactions contemplated hereunder.

(h) Approvals. No authorizations, approvals or consents of, and no filings or registrations with, any Governmental Authority or any securities exchange are necessary for the execution, delivery or performance by the Parent Guarantor hereunder or for the legality, validity or enforceability hereof.

 

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(i) Conditions Precedent. There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.

(j) Ownership. Effective on the Effective Date, the Parent Guarantor, is the legal and beneficial owner of all of the outstanding equity interest in Sunnova Management and is the indirect legal and beneficial owner of all of the outstanding equity interest in the Borrower.

(k) Taxes. The Parent Guarantor and its subsidiaries have filed all U.S. federal income tax returns and all other material tax returns that are required to be filed by them and have paid, or have made provision for the payment of, all taxes due pursuant to such returns or pursuant to any assessment received by any of them, except for any such taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Parent Guarantor and its subsidiaries in respect of taxes and other governmental charges are, in the opinion of the Parent Guarantor, adequate.

(l) Foreign Taxes. Neither Parent Guarantor nor Sunnova Management is aware of any Host Customer under a Solar Service Agreement who has withheld any portion of its payment due under such Solar Service Agreement because of the requirements of a foreign taxing authority, and no foreign taxing authority has contacted the Parent Guarantor or Sunnova Management concerning a withholding or other tax liability.

(m) Investment Company Act. The Parent Guarantor is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the 1940 Act.

(n) True and Complete Disclosure. The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Parent Guarantor to the Borrower and the Administrative Agent in connection with the negotiation, preparation or delivery of this Guaranty or included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Parent Guarantor to the Borrower and the Administrative Agent in connection with this Guaranty and the transactions contemplated hereby and thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.

(o) ERISA. As of the Effective Date and at all times during the term of this Guaranty, (i) each “employee pension benefit plan,” as such term is defined in Section 3(2) of ERISA, that is sponsored, maintained, or contributed to by the Parent Guarantor or its subsidiaries, other than any such plan that is a “multiemployer plan,” as such term is defined in Section 3(37) of ERISA, (a “Sunnova Pension Plan”) and, to the knowledge of the Parent Guarantor, each “employee welfare benefit plan,” as such term is defined in Section 3(1) of ERISA, that is sponsored, maintained or contributed to by the Parent Guarantor or its subsidiaries, is and will be in compliance in all material respects with, and has been and will be administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or state law; (ii) with respect to any Sunnova Pension Plan that is subject to Section 412 of the

 

7


Code or Section 302 of ERISA, no “accumulated funding deficiency” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, exists with respect to any plan year beginning prior to January 1, 2008, and with respect to any plan year beginning after December 31, 2007, no unpaid “minimum required contribution” (as defined in Section 430 of the Code or Section 303 of ERISA), whether or not waived, exists and, to the knowledge of the Parent Guarantor, no event has occurred or circumstance exists that may result in an unpaid minimum required contribution as of the last day of the current plan year of any such plan; and (iii) the Parent Guarantor and each of its Commonly Controlled Affiliates has made and will make substantially all contributions required under each “multiemployer plan,” as such term is defined in Section 3(37) of ERISA, to which the Parent Guarantor or any of its Commonly Controlled Affiliates is obligated to contribute (a “Sunnova Multiemployer Plan”) and any required contribution that has not been paid would not, individually or in the aggregate, have a material adverse effect. As of the Effective Date, neither the Parent Guarantor nor any of its Commonly Controlled Affiliates has been notified by the sponsor of a Sunnova Multiemployer Plan that such Sunnova Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, except where such reorganization or termination would not have a material adverse effect. After the Effective Date and at all times during the term of this Guaranty, the aggregate outstanding liability of the Parent Guarantor and its Commonly Controlled Affiliates for any partial or complete withdrawal from any Multiemployer Plan collectively does not exceed $10 million, and, to the knowledge of the Parent Guarantor, no event has occurred or circumstance exists that presents a risk that the aggregate outstanding liability of the Parent Guarantor and its Commonly Controlled Affiliates for any partial or complete withdrawal from any Sunnova Multiemployer Plan could collectively exceed $10 million at any time during the term of this Guaranty. For purposes of this Section 5(o), “Commonly Controlled Affiliates” means those direct or indirect affiliates of the Parent Guarantor that would be considered a single employer with the Parent Guarantor under Section 414(b), (c), (m), or (o) of the Code.

(p) Rank of Obligations. Its obligations under this Guaranty do rank and will rank at least pari passu in priority of payment and in all other respects with all of its unsecured indebtedness.

(q) Financial Reporting. The Parent Guarantor shall furnish or cause to be furnished to the Borrower and the Administrative Agent:

 

  (i)

Annual Reporting. Within one hundred eighty (180) days after the close of each fiscal year of the Parent Guarantor, the unqualified audited financial statements for such fiscal year that shall include the consolidated balance sheet of the Parent Guarantor and its consolidated subsidiaries, as of the end of such fiscal year, the related consolidated statements of income, of stockholders’ equity and of cash flows for such fiscal year, in each case, setting forth comparative figures for the preceding fiscal year, and, beginning with the fiscal year ending December 31, 2018, the assets and liabilities of the Borrower as of the end of such fiscal year presented in a note or schedule to such financial statements of the Parent Guarantor, and in each case prepared in accordance with GAAP and audited by a Nationally Recognized Accounting Firm selected by the Parent Guarantor; and

 

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  (ii)

Quarterly Reporting. Within sixty (60) days after the end of each of its fiscal quarters, the unaudited consolidated balance sheets and income statements for such fiscal quarter on a year-to-date basis for the Parent Guarantor and its consolidated subsidiaries.

(r) Financial Covenants. As of the Effective Date and at all times during the term of this Guaranty, the following shall be true (collectively, the “Financial Covenants”):

 

  (i)

the Parent Guarantor shall have and maintain as of the last day of each fiscal quarter ending after the Effective Date a Tangible Net Worth (as defined below) of at least the sum of (A) fifty percent (50%) of all positive quarterly net income (as determined in accordance with GAAP) earned for each fiscal quarter ending after the Closing Date as of such date plus (B) $185,000,000;

 

  (ii)

the Parent Guarantor shall have and maintain, as of the last day of each fiscal quarter ending after the Effective Date, Working Capital (as defined below) available to it in an amount at least equal to $20,000,000; provided, however, that from the date hereof through August 31, 2019, the Parent Guarantor shall only be required to have and maintain, as of the last day of each fiscal quarter ending during such period, Working Capital available to it in an amount at least equal to $5,000,000; and

 

  (iii)

no distribution with respect to the equity of the Parent Guarantor shall be funded with the proceeds (directly or indirectly) any Advances made under the Credit Agreement

provided that for purposes of determining compliance with the Financial Covenants in this Section 5(r), on or prior to the date that is fifteen (15) Business Days after the date on which it is determined that the Parent Guarantor is not in compliance with any Financial Covenant (the “Equity Cure Period”), the Parent Guarantor’s equity holders or any of their Affiliates shall have the right to make and fund an equity investment in the Parent Guarantor in cash during such Equity Cure Period, and such cash, if so designated by the Parent Guarantor, shall be included as unrestricted cash for purposes of calculating (A) “Tangible Net Worth” in clause (i) above, and (B) to the extent such amounts do not reduce undrawn capacity under equity or debt facilities included in the calculation, “Working Capital” in clause (ii) above (each such investment of cash, an “Equity Cure”); provided, further, that any actions taken by or with respect to the Parent Guarantor during the Equity Cure Period in an effort to have the Parent Guarantor comply with the Financial Covenants shall be promptly communicated to the Administrative Agent in writing and no more than (X) one (1) Equity Cure shall be permitted during each calendar year and (Y) two (2) Equity Cures shall be permitted during the term of Agreement, without advance notice to and consent of the Administrative Agent; provided, further, that so long as the Parent Guarantor has delivered prior written notice to the Administrative Agent of its intention to exercise an Equity Cure, during the Equity Cure Period no Amortization Event shall be deemed

 

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to have occurred and neither the Administrative Agent nor any Lender shall exercise any rights or remedies under or arising out of this Section 5(r) or any other Transaction Document on the basis of any failure to comply with those Financial Covenants as to which notice of intent to exercise an Equity Cure has been delivered; provided, further, that if the Parent Guarantor’s non-compliance with the Financial Covenants is cured by a permitted Equity Cure made within the Equity Cure Period, no Amortization Event shall be deemed to have occurred.

For purposes of this Section 5(r), the following terms shall have the meanings set forth below:

Mezzanine Facility” shall mean (i) that certain Loan Agreement entered into effective November 14, 2014, as amended, restated, supplemented or otherwise modified from time to time (the “GSO Facility”), among Sunnova Asset Portfolio 5 Holdings, LLC, the Parent Guarantor, Wilmington Trust, National Association, as administrative agent, and the lenders from time to time party thereto and (ii) any indebtedness incurred by the Parent Guarantor under any mezzanine financing facility or private high yield notes issuance, the proceeds of which are used to refinance in full the GSO Facility and otherwise for working capital purposes; provided that the Parent Guarantor shall deliver prior written notice of its intention to enter into such facility or issue such notes not later than ten (10) days prior to the closing of such facility or issuance of such notes.

Tangible Net Worth” shall mean the amount which, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of the Parent Guarantor, less all assets that are considered to be intangible assets under GAAP (including customer lists, goodwill, internal use software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs of the Parent Guarantor) less “Total Liabilities” in a consolidated balance sheet of the Parent Guarantor as reported in each set of quarterly financial statements delivered pursuant to Section 5(q)(ii) above; provided that the amount calculated in Section 5(r)(i) above and the term “Total Liabilities” shall carve out from the calculation thereof an aggregate principal amount of up to $50,000,000 then outstanding under any Mezzanine Facility as reported in each set of quarterly financial statements delivered pursuant to Section 5(q)(ii) above.

Working Capital” shall mean, as of any date, the cumulative amount of unrestricted cash and undrawn capacity under any equity or debt financing arrangement of the Parent Guarantor or any Subsidiary of the Parent Guarantor which is available (taking into account the ability of Guarantor or its applicable Subsidiary to satisfy any conditions to such availability as demonstrated to the reasonable satisfaction of the Administrative Agent) to pay for the Parent Guarantor’s selling, asset origination and general and administrative expenses. For the avoidance of doubt, Working Capital shall include any undrawn capacity available (taking into account the ability of Guarantor or its applicable Subsidiary to satisfy any conditions to such availability as demonstrated to the reasonable satisfaction of the Administrative Agent) for the Parent Guarantor’s general and administrative purposes under any other equity or debt financing arrangement of the Parent Guarantor or any Subsidiary.

 

10


SECTION 6. Amendments, Etc. No amendment or waiver of any provision of this Guaranty, and no consent to any departure by the Parent Guarantor here from, shall in any event be effective unless the same shall be in writing and signed by the Parent Guarantor (only with respect to amendments), the Borrower and the Administrative Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

SECTION 7. Addresses for Notices. All notices and other communications hereunder shall be in writing (which shall include facsimile communication), shall be personally delivered, express couriered, electronically transmitted (in which case a hard copy shall also be sent by regular mail) or mailed by registered or certified mail, if to the Borrower, at the address set forth under its name on the signature page hereof, if to the Administrative Agent, at the address set forth under its name on the signature page hereof and, if to the Parent Guarantor, at the address set forth under its name on the signature page hereof or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. Notices and communications by facsimile shall be effective when sent, and notices and communications sent by other means shall be effective when received.

SECTION 8. No Waiver; Remedies. No failure on the part of the Borrower or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 9. Continuing Guaranty. This Guaranty is a continuing agreement and shall, to the maximum extent permitted by Applicable Law:

(a) remain in full force and effect until the performance in full of the Obligations and the payment of all other amounts payable under the other Transaction Documents;

(b) be binding upon the Parent Guarantor, its successors and assigns; and

(c) inure to the benefit of, and be enforceable by, the Borrower, the Administrative Agent and their successors and assigns.

Notwithstanding anything contained in this Section 9 to the contrary, it is specifically agreed and is a condition of and inducement to the Parent Guarantor to enter into this Guaranty, that all Obligations and performances, liabilities and duties of the Parent Guarantor with respect to Sunnova Management as the Facility Administrator and its obligations under the Facility Administration Agreement, shall cease, terminate and be of no further force or effect immediately upon (i) the termination or the resignation of Sunnova Management as the Facility Administrator and (ii) the appointment of any Successor Facility Administrator.

SECTION 10. Release of the Parent Guarantor. In the event that (a) the Parent Guarantor ceases to control (within the meaning of the Securities Act) Sunnova Management and the Borrower, (b) a Facility Administrator Termination Event has not occurred, (c) the new controlling person has agreed to assume the obligations of the Parent Guarantor hereunder, (d)

 

11


the Parent Guarantor shall have received the written consent of the Administrative Agent, and (e) the Parent Guarantor and such new controlling person shall have executed documents and provided opinions of counsel reasonably requested by the Administrative Agent, then the Parent Guarantor shall be permitted to assign its obligations hereunder to such new controlling person, and upon such assignment, this Guaranty shall terminate with respect to the Parent Guarantor and the Parent Guarantor shall be released from its obligations hereunder without the necessity of any further action of the parties to this Guaranty.

SECTION 11. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS GUARANTY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY AGREES TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK, AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO SUCH PARTY AT THE ADDRESS SET FORTH ON THE SIGNATURE PAGE HEREOF, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED WHEN THE RETURN RECEIPT IS SIGNED. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARENT GUARANTOR AND THE BORROWER OR THE AGENT, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS GUARANTY. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY. WITH RESPECT TO THE FOREGOING CONSENT TO JURISDICTION, EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 11 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE PARENT GUARANTOR, THE BORROWER OR THE AGENT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY HERETO OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.

SECTION 12. No Proceeding; Effects of Bankruptcy. The Parent Guarantor hereby agrees that it will not, directly or indirectly, institute or cause to be instituted, or join any Person in instituting, against the Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law so long as there shall not have elapsed one year plus one day after payment in full of the Obligations (not as defined herein, but as defined in the Credit Agreement). To the extent permitted by law, this Guaranty shall survive the occurrence of any bankruptcy with respect to Sunnova Management, the Borrower or any other Person. To the extent permitted by law, no automatic stay under the Bankruptcy Code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which Sunnova Management or the Borrower is subject shall postpone the obligations of the Parent Guarantor under this Guaranty.

 

12


SECTION 13. Counterparts. This Guaranty may be executed in counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same agreement. Delivery of an executed counterpart of this Guaranty by facsimile or other electronic transmission (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof and deemed an original.

[Signature Page Follows]

 

13


IN WITNESS WHEREOF, the Parent Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

SUNNOVA ENERGY CORPORATION
By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   Senior Vice President, Head of Finance and Treasurer
Address:  

20 Greenway Plaza

Suite 475

Houston, TX 77046

 

[Signature Page to Amended and Restated Parent Guaranty]


Acknowledged and Agreed:

 

SUNNOVA TEP II HOLDINGS, LLC, as Borrower
By:   /s/ Christopher Smith
Name:   Christopher Smith
Title:   Senior Vice President, Head of Finance and Treasurer
Address:  

20 Greenway Plaza

Suite 475

Houston, TX 77046

 

[Signature Page to Amended and Restated Parent Guaranty]


CREDIT SUISSE AG, NEW YORK BRANCH,

as Administrative Agent

By:   /s/ Patrick Duggan
  Name: Patrick Duggan
  Title:   Vice President
By:   /s/ Jeffrey Traola
  Name: Jeffrey Traola
  Title:   Director
 

Address:    11 Madison Avenue, 4th Floor

New York, NY 10010

Attention: Asset Finance

 

[Signature Page to Amended and Restated Parent Guaranty]

EX-10.12 15 d709190dex1012.htm EX-10.12 EX-10.12

Exhibit 10.12

Execution Version

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT OR AN AVAILABLE EXEMPTION UNDER THE SECURITIES ACT OF 1933 AND COMPLIANCE WITH STATE SECURITIES LAWS.

SUBORDINATED CONVERTIBLE PROMISSORY NOTE

(Bridge Loan Note – Sunnova)

$15,000,000.00 (plus any amounts owing in respect of PIK Interest as set forth on Schedule I)

Effective as of June 28, 2019

New York, New York

FOR VALUE RECEIVED, Sunnova Energy Corporation, a Delaware corporation (“Maker”), having a notice address of 20 E. Greenway Plaza, Suite 475, Houston, Texas 77046, hereby promises to pay pursuant to this promissory note (this “Note”) to Energy Capital Partners III, LP, Energy Capital Partners III-A, LP, Energy Capital Partners III-B, LP, Energy Capital Partners III-C, LP, Energy Capital Partners III-D, LP, Energy Capital Partners III (Sunnova Co-Invest), LP, QSIP LP, Elk Mountain, Ltd., Minion Trail, Ltd., FS Energy and Power Fund, MTP Energy Master Fund Ltd, Portcullis Partners, LP, The Board of Trustees of the Leland Stanford Junior University (DAPER II), Rebecca Rabinow Management Trust, 1811 Pesikoff Family Trust, Richard A. Rabinow, Fayez Sarofim and FSI No. 2 Corporation (collectively, the “Holders” and, each individually, a “Holder”), on the earlier of (i) the first date on which all of the 9.50% Senior Secured Convertible Notes due 2021, including any notes issued in payment of PIK interest thereon, (the “2021 Notes”) issued pursuant to the Indenture, dated as of April 24, 2017 (as amended as of April 5, 2019 and, as further amended, amended and restated, supplemented or otherwise modified from time to time, the “Indenture”), by and between the Company and Wilmington Trust, National Association, as trustee (the “2021 Notes Trustee”) and collateral trustee, have been repaid in full and are no longer outstanding unless this Note would otherwise be converted into Series C Preferred Stock on such date, and (ii) September 30, 2021 (such date being referred to as the “Maturity Date”), the principal amounts set forth on Schedule I hereto next to each such Holder’s name, together with any and all accrued and unpaid interest on such outstanding principal amounts; provided, that, notwithstanding the foregoing all amounts payable hereunder shall become immediately due and payable upon the institution of, or material development under, bankruptcy proceedings under the U.S. Bankruptcy Code or similar proceedings under state or federal law with respect to the Maker (subject to the Subordination Provisions (as defined below)).

Interest shall accrue from the effective date hereof until the entire balance is paid (or converted, as provided below) on the unpaid principal balance of this Note at the interest rate (“Interest Rate”) of twelve percent (12%) per annum. Interest shall be paid quarterly in arrears on March 31, June 30, September 30 and December 31 of each year, until and including the Maturity Date, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent Interest Payment Date or, if no interest has been paid, from the date of issuance. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. At all times prior to the repayment of the 2021 Notes, interest shall be payable solely by increasing the then outstanding principal amount of this Note by the entire amount of the interest payment due on the applicable Interest

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


Payment Date (“PIK Interest”). Following an increase in the principal amount of this Note on the applicable Interest Payment Date by the amount of the PIK Interest, this Note will bear interest on such increased principal amount from and after such Interest Payment Date. For clarity, unless the context otherwise requires, references to any principal amount of this Note includes any increase in the principal amount of this Note as a result of the payment of PIK Interest. Upon the occurrence of the Maturity Date, all unpaid principal, accrued interest and other amounts owing hereunder shall be immediately due, payable and collectible by the Holders pursuant to applicable law. This Note shall not, under any circumstances, be payable in cash, except on and after the repayment in full of the 2021 Notes.

Notwithstanding any provision to the contrary herein, Maker may not, at any time, prepay all or any portion of this Note, except in connection with any conversion into shares of the Company’s Series C Convertible Preferred Stock pursuant to the terms hereof.

Unless earlier converted, on and after the Maturity Date, an amount equal to the principal amount of this Note and any accrued and unpaid interest, in each case, as of the Maturity Date, shall be payable in lawful money of the United States of America and in immediately available funds at the office of each Holder set forth on Schedule I, unless another place of payment shall be specified in writing by a Holder to Maker. Notwithstanding the foregoing, (i) upon and subject to the affirmative written election of the Majority Holders (as defined below) delivered to the Maker not later than five (5) business days prior to the date of conversion or (ii) automatically and immediately prior to a Qualified IPO (as defined below) without any further action required on the part of either the Holder or the Maker, the entire balance then outstanding hereunder shall be converted into that number of shares of the Company’s Series C Convertible Preferred Stock as is equal to (i) an amount equal to the principal amount of this Note and any accrued and unpaid interest, in each case, as of the date of conversion, divided by (ii) the lesser of $5.80 (as appropriately adjusted for any stock splits, combinations, recapitalizations or the like affecting the Series C Convertible Preferred Stock after the date hereof) and the Conversion Price. Notwithstanding anything to the contrary herein, until the expiration or termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 with respect to the acquisition of the Company’s Series C Convertible Preferred Stock as contemplated by this Note (the “HSR Act Approval”), no Holder shall be entitled to exercise its conversion rights described above.

For purposes of this Note, (i) the term “Conversion Price” shall mean an amount equal to the lowest purchase price per share of Series C Convertible Preferred Stock issued at any time from and after the date of this Note and until the date of conversion and (ii) the term “Qualified IPO” shall mean any sale of common stock of the Maker pursuant to an underwritten public offering registered under applicable securities laws (A) for which the aggregate gross cash proceeds to be received by the Maker from such offering (without deducting underwriting discounts, expenses and commissions) are at least $175,000,000 at a per share public offering price of at least $6.6558 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting any shares of common stock of the Maker) and (B) pursuant to which the common stock of the Maker is listed for trading on the New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market.

Anything in this Note to the contrary notwithstanding, the Maker hereby covenants and agrees, and the Holders likewise hereby covenant and agree, that the indebtedness and all other obligations, whether now or hereafter outstanding, of the Maker under this Note (the “Subordinated Debt”) shall be junior and subordinate to the extent and in the manner set forth in clauses (a) through (m) below (collectively, the “Subordination Provisions”) to the Maker’s Obligations (as defined in the Indenture), whether now or hereafter outstanding with respect to the 2021 Notes and related documents (the “Senior Indebtedness”).

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

2


(a) The Subordinated Debt is subordinated in all respects and subject in right of payment to the Senior Indebtedness such that the (i) payment in full, in cash of the principal of and interest and fees (including interest and fees accruing during the pendency of any insolvency or liquidation proceeding) regardless of whether allowed or allowable in an Insolvency Proceeding (as defined below) on the Senior Indebtedness and regardless of whether then due or payable and (ii) payment in full, in cash of all other Senior Indebtedness that is then due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (including any contingent indemnification obligations to the extent then asserted) (the “Payment in Full”) of the Senior Indebtedness shall occur before any Holder is entitled to receive any payment or distribution on account of the Subordinated Debt of assets, properties or cash of Maker or any other person of any kind or character, whether (A) a payment, purchase or other acquisition or retirement for cash, property or securities (other than PIK Interest in respect of this Note) or (B) by way of cancellation, forgiveness or offset of the indebtedness owing by Maker against any indebtedness owed by any Holder or (C) payable or deliverable by reason of the payment of any other indebtedness of Maker being subordinated to the payment of this Note and, in any case, shall include any assets of any kind or character received by the Holders in connection with the realization of any security for this Note (each, a “Distribution”) (including interest (other than PIK Interest)) on account of the Subordinated Debt and, in that connection, unless and until the Payment in Full of the Senior Indebtedness occurs, no payment or Distribution (including interest (other than PIK Interest)) with respect to this Note shall be made by or on behalf of the Maker; provided, that, nothing in this clause (a) or any other provision of this Note shall be construed to prohibit the refinancing, replacement or repayment of all or any portion of the unpaid principal balance of this Note with (or the conversion of all of any portion of the unpaid principal balance of this Note into) common or non-“disqualified preferred” (as customarily defined) equity interests of Maker. No Holder shall initiate or cooperate or join with any other person in any proceeding challenging (1) the validity or enforceability of any documents in connection with the Senior Indebtedness or any indebtedness governed thereby, (2) any payment or distribution received by any holder of Senior Indebtedness or any agent therefor (each, a “Senior Debtholder”) for application to all or any part of the Senior Indebtedness or (3) the existence, validity, perfection or priority of any actual or purported lien claimed by any Senior Debtholder in any collateral or any other property in which Maker has rights from time to time.

(b) In the event of any insolvency, bankruptcy or receivership case or proceeding or any dissolution, winding up, liquidation, reorganization or other similar proceedings relative to Maker or its assets (whether voluntary or involuntary and whether in bankruptcy, insolvency or receivership proceedings or otherwise) or upon an assignment for the benefit of creditors, or any other marshaling of the assets of Maker or its assets (each of the foregoing, an “Insolvency Proceeding”), then Payment in Full shall occur before the Holders shall be entitled to receive or retain any payment or Distribution (including interest (other than PIK Interest)) with respect to this Note. In any such proceedings, any payment or Distribution (including interest (other than PIK Interest)) to which the Holders would be entitled if this Note and the Subordinated Debt were not subordinated to the Senior Indebtedness shall be paid by the Maker or by the agent or other person making such payment or distribution, or by the Holders if and to the extent received by the Holders, directly to the 2021 Notes Trustee to be allocated as set forth in the terms of the Senior Indebtedness or if not so allocated, pro rata based on the outstanding principal amount thereof. Following commencement of and during the continuance of an Insolvency Proceeding, each of the Holders may (i) prove its claim or, if applicable, its interest, in the Subordinated Debt, (ii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading objecting to, or otherwise seeking the disallowance of, the amounts due under this Note or otherwise impairing any of the Holders’ rights under this Note or, except as otherwise limited or prohibited by the Subordination Provisions, file any motions pertaining to the Subordinated Debt, and (iii) vote on any plan of reorganization or other dispositive plan that is consistent with the rights and priorities of the Senior Debtholders under the Subordination Provisions. Nothing in this

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

3


clause (b) or any other provision of this Note shall be construed to prohibit the refinancing, replacement or repayment of all or any portion of the amounts due under this Note with (or the conversion of all of any portion of the amounts due under this Note into) common equity or non-“disqualified preferred” equity interests of Maker pursuant to this clause (b).

(c) Until the Payment in Full of Senior Indebtedness, if any Holder receives any payment or Distribution (including interest but excluding PIK Interest) in respect of the Subordinated Debt, then such payment or Distribution shall be promptly paid over or delivered to 2021 Notes Trustee with any necessary endorsement and the payment shall be deemed never to have been made in respect of the Subordinated Debt.

(d) The Holders shall not exercise any rights or remedies under this Note, including, without limitation, any action (A) to take from or for the account of the Maker or any other person, by set-off or in any other manner, the whole or any part of any moneys which may now or hereafter be owing by the Maker or any such person with respect to the Senior Indebtedness or the Subordinated Debt (including but not limited to the amounts due on account of this Note), (B) to sue for payment of the Senior Indebtedness or the Subordinated Debt, or to initiate or participate with others in any suit, action or proceeding against the Maker or any other person to (i) enforce payment of or to collect the whole or any part of the amounts due with respect to the Senior Indebtedness or the Subordinated Debt or (ii) commence judicial enforcement of any of the rights and remedies under the 2021 Notes (or other applicable loan or credit agreement) or applicable law with respect to the Senior Indebtedness or under this Note or applicable law with respect to the amounts due hereunder or thereunder, (C) to accelerate the Senior Indebtedness (or any portion thereof) or the Subordinated Debt (or any portion thereof), (D) to cause the Maker to honor any redemption or mandatory prepayment obligation related to this Note, or (E) to take any action under the provisions of any state or federal law, including, without limitation, the Uniform Commercial Code, or under any contract or agreement, to enforce, foreclose upon, take possession of or sell any property or assets of the Maker or any other person, including the collateral securing the Senior Indebtedness (each, an “Enforcement Action”), until Payment in Full has occurred. Notwithstanding anything in this Note to the contrary, whether or not any Senior Indebtedness is outstanding: (1) the Holders may file proofs of claim and statements of interest against Maker in any Insolvency Proceeding in a manner consistent with the Subordination Provisions; (2) the Holders may take any action required to toll the expiration of any statute of limitation; and (3) take any other actions to preserve or protect the validity and enforceability of rights of the Holders with respect to the Subordinated Debt not expressly prohibited in these Subordination Provisions. Any distributions or other proceeds of any Enforcement Action obtained by or for the benefit of the Holders shall in any event be held in trust by it for the benefit of the 2021 Notes Trustee and promptly paid or delivered to the 2021 Notes Trustee in the form received until Payment in Full has occurred.

(e) Until Payment in Full, each Holder hereby acknowledges and agrees that any Senior Debtholder may at any time and from time to time without the consent of or notice to any Holder, and without incurring responsibility to any Holder or impairing or releasing the subordination provided in the Subordination Provisions or the obligations hereunder of any Holder to any Senior Debtholder, do any one or more of the following: (i) extend, renew, modify, waive or amend the terms of any Senior Indebtedness; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any guarantor or any other person liable in any manner for Senior Indebtedness or amend or waive the terms of any guaranty of Senior Indebtedness; (iv) exercise or refrain from exercising any rights against Maker or any other person; (v) apply any sums by whomever paid or however realized to Senior Indebtedness; (vi) change the manner, place or terms of payment or extend the time of

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

4


payment of, or renew or alter, Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding or secured; and (vii) take any other action which otherwise might be deemed to impair the rights of the Senior Debtholders. Any and all of such actions may be taken by the Senior Debtholders without incurring responsibility to any Holder and without impairing or releasing the obligations of any Holder to the Senior Debtholders.

(f) Any subsequent Holder of this Note agrees, by its acceptance hereof, that obligations of the Maker hereunder are junior and subordinate to the Senior Indebtedness to the extent and in the manner set forth in the Subordination Provisions.

(g) No right of any present or future Senior Debtholder to enforce subordination as provided in the Subordination Provisions will at any time in any way be prejudiced or impaired by any act or failure to act on the part of Maker or by any act or failure to act, in good faith, by any Senior Debtholder, or by any noncompliance by Maker with the terms of this Note regardless of any knowledge thereof that any such Senior Debtholder may have or otherwise be charged with. The Subordination Provisions are intended to be for the benefit of, and shall be enforceable directly by, the 2021 Notes Trustee or any Senior Debtholder, and no other person other than the 2021 Notes Trustee, any Senior Debtholder or the parties hereto shall have or be entitled to assert rights or benefits hereunder.

(h) Until Payment in Full, so long as any Senior Indebtedness is outstanding, in the event that any Holder shall fail to file a proof of claim following any Insolvency Proceeding of Maker within 5 days prior to the deadline to file proofs of claim in the applicable Insolvency Proceeding, such Holder shall irrevocably appoint the 2021 Notes Trustee as its attorney in fact, and grant the 2021 Notes Trustee a power of attorney with full substitution, in the name of Holder, for the use and benefit of the Senior Debtholders, to file such proof of claim on its behalf in connection with such Insolvency Proceeding.

(i) Until Payment in Full, if, in any Insolvency Proceeding, debt obligations of the reorganized debtor secured by liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of both the Senior Indebtedness and the Subordinated Debt, then, to the extent the debt obligations distributed on account of the Senior Indebtedness and on account of the Subordinated Debt are secured by liens upon the same assets or property, the Subordination Provisions will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the liens securing such debt obligations.

(j) Following the Payment in Full of the Senior Indebtedness, the Holders shall be subrogated to the rights of the Senior Debtholders (or their agent or representative) to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of, and interest on, and all other amounts in respect of, the Subordinated Debt shall be paid in full; however, such right of subrogation shall not be exercised as to any collateral or other property acquired prior to Payment in Full by the 2021 Notes Trustee, the Senior Debtholders or their respective affiliates in connection with an Enforcement Action or an Insolvency Proceeding. For purposes of such subrogation, no payments or distributions to the Senior Debtholders (or their agent or representative) of any cash, property or securities to which the Holders would be entitled except for these Subordination Provisions, and no payments over pursuant to these Subordination Provisions to the Senior Debtholders (or their agent or representative) by the Holders, shall be deemed to be a payment or distribution by Maker to or on account of the Senior Indebtedness except to the extent constituting such a payment or distribution pursuant to the terms of the Indenture or constituting a Payment In Full; it being understood and agreed that the Subordination Provisions are solely for the purpose of defining the relative rights of the Senior Debtholders (or their agent or representative) on the one hand, and the Holders on the other hand.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

5


(k) Until Payment in Full has occurred, no amendment or waiver of any provision of this Note, shall directly or indirectly (s) modify the Subordination Provisions, (t) increase the Interest Rate in respect of the Subordinated Debt, (u) shorten the scheduled final maturity of the Subordinated Debt, (v) modify the principal repayment or prepayment provisions of the Subordinated Debt in a manner that would require a repayment or prepayment not required as of the date hereof, (w) change any covenants, defaults, or events of default (including the addition of covenants, defaults, or events of default not contained in the Note as in effect on the date hereof) to restrict Maker from making payments in respect of any Senior Indebtedness, (x) increase the principal balance of the Subordinated Debt (other than as a result of the accrual of interest, accretion or the payment of PIK Interest pursuant to the terms of the Note as in effect as of the date hereof), or (y) convert the payment of any accrual or PIK Interest to cash pay interest, in each case, without the prior written consent of the 2021 Notes Trustee and each of the Senior Debtholders. Until Payment in Full has occurred, Maker shall not grant (and no Holder shall accept the benefit of) a lien or security interest on any collateral to secure any portion of the Subordinated Debt.

(l) For the avoidance of doubt, nothing herein shall: (i) impair, as between the Maker and the Holders, the obligation of the Maker, which is absolute and unconditional, to pay principal of and interest on the Note as set forth herein; or (ii) affect the relative rights of the Holders and creditors of the Maker other than their rights in relation to the Senior Debtholders.

(m) No implied covenants or obligations shall be read into this Note against the 2021 Notes Trustee. The 2021 Notes Trustee shall not be deemed to owe any fiduciary duty to the Holders as a result of this Note and the 2021 Notes Trustee shall not be liable to any Holder of Notes if it shall pay over or deliver to holders of the 2021 Notes, the Issuer or any other Person money or assets which are delivered to the 2021 Notes Trustee hereunder.

Any waiver shall be in writing and effective against a Holder if signed by the applicable Holder. No delay or omission on the part of the Holders in exercising any right shall operate as a waiver of such right or any other right. A waiver on any one occasion shall not be construed as a bar to or waiver of any right on any future occasion. All rights and remedies of the Holders with respect to this Note and the obligations hereunder, whether evidenced hereby or by any other instrument or papers, shall be cumulative and may be exercised singularly, alternatively, successively or concurrently at such time or at such times as the Holders deems expedient.

The Holders shall not have the right to transfer or assign any of their rights or obligations under this Note without the prior written consent of the Maker and any proposed assignment or transfer without consent shall be void ab initio; provided, however, that transfers or assignments of this Note (but not increases in principal amount, other than as the result of PIK Interest) shall be permitted (i) to holders of Series A Common Stock, Series A Convertible Preferred Stock and Series C Convertible Preferred Stock that is required pursuant to Section 4.1(g) of that certain Third Amended and Restated Investors Agreement, dated as of March 29, 2018, by and among the Maker and certain other parties thereto (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Investors Agreement”) or (ii) to Energy Capital Partners III (Sunnova Co-Invest), LP or any other Permitted Transferee, as defined in and in accordance with the Investors Agreement.

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

6


This Note and all obligations of Maker hereunder shall be binding upon the successors and assigns of Maker, and shall, together with the rights and remedies of the Holders, inure to the benefit of each Holder, any future holder of any of the indebtedness and their respective successors and assigns. This Note may be amended by the Maker and Holders holding a majority of the then outstanding principal amount under this Note (the “Majority Holders”). Notwithstanding the foregoing, (a) no amendment or waiver of the terms of this Note shall be effective if such amendment or waiver would have a disproportionate and adverse effect on any Holder unless each such disproportionately and adversely affected Holder has consented in writing to such amendment or waiver, (b) the Interest Rate and Maturity Date cannot be amended without the written consent of all Holders and (c) the principal amount owed to a Holder under this Note cannot be amended without such Holder’s written consent.

The Maker and the Holders intend to comply at all times with applicable usury laws. If at any time such laws would render usurious any amounts due under this Note under applicable law, then it is Maker’s and the Holders’ express intention that (i) the Maker not be required to pay interest on this Note at a rate in excess of the maximum lawful rate, (ii) that the provisions of this paragraph shall control over all other provisions of this Note which may be in apparent conflict hereunder, (iii) that such excess amount shall be immediately credited to the principal balance of this Note, and (iv) the provisions hereof shall immediately be reformed and the amounts thereafter decreased, so as to comply with the then applicable usury law, but so as to permit the recovery of the fullest amount otherwise due under this Note.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Maker agrees that any suit for the enforcement of this Note may be brought in the courts of the State of New York or any federal court sitting therein and consents to the non-exclusive jurisdiction of such court and to service of process in any such suit being made upon Maker by mail at the address specified in the first paragraph of this Note (or such other address as Maker may provide written notice of to the Holders). Maker hereby waives any objection that it may now or hereafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient court.

EACH PARTY HERETO WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS NOTE, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, Maker waives any right which it may have to claim or recover in any litigation referred to in the preceding sentence any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. Each party (i) certifies that neither the other parties nor their respective representatives, agents or attorneys has represented, expressly or otherwise, that such party would not, in the event of litigation, seek to enforce the foregoing waivers and (ii) acknowledges that, in entering into this Note, each party is relying upon, among other things, the waivers and certifications contained in this Note.

If any term of this Note shall be held to be invalid, illegal or unenforceable, the validity of all other terms hereof shall in no way be affected thereby, and this Note shall be construed and be enforceable as if such invalid, illegal or unenforceable term had not been included herein. This Note may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Note by facsimile or by electronic portable document format shall be effective as delivery of a manually executed counterpart of this Note.

[Signature Pages to Follow]

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

 

7


IN WITNESS WHEREOF, the Maker has executed and delivered this Note on June 28, 2019.

 

SUNNOVA ENERGY CORPORATION
By:  

/s/ Robert L. Lane

Name:   Robert L. Lane
Title:   Executive Vice President and Chief Financial Officer

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ACCEPTED:
ENERGY CAPITAL PARTNERS III, LP
By:   Energy Capital Partners GP III, LP
Its:   General Partner
  By:   Energy Capital Partners III, LLC
  Its:   General Partner
  By:   ECP ControlCo, LLC
  Its:   managing member

 

By:   /s/ Rahman D’Argenio
  Name: Rahman D’Argenio
  Title: Partner

 

ENERGY CAPITAL PARTNERS III-A, LP
By:   Energy Capital Partners GP III, LP
Its:   General Partner
  By:   Energy Capital Partners III, LLC
  Its:   General Partner
  By:   ECP ControlCo, LLC
  Its:   managing member

 

By:   /s/ Rahman D’Argenio
  Name: Rahman D’Argenio
  Title: Partner

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ENERGY CAPITAL PARTNERS III-B, LP
By:   Energy Capital Partners GP III, LP
Its:   General Partner
  By:   Energy Capital Partners III, LLC
  Its:   General Partner
  By:   ECP ControlCo, LLC
  Its:   managing member
By:   /s/ Rahman D’Argenio
  Name: Rahman D’Argenio
  Title: Partner

 

ENERGY CAPITAL PARTNERS III-C, LP
By:   Energy Capital Partners GP III, LP
Its:   General Partner
  By:   Energy Capital Partners III, LLC
  Its:   General Partner
  By:   ECP ControlCo, LLC
  Its:   managing member

 

By:   /s/ Rahman D’Argenio
  Name: Rahman D’Argenio
  Title: Partner

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ENERGY CAPITAL PARTNERS III-D, LP
By:   Energy Capital Partners GP III, LP
Its:   General Partner
  By:   Energy Capital Partners III, LLC
  Its:   General Partner
  By:   ECP ControlCo, LLC
  Its:   managing member

 

By:   /s/ Rahman D’Argenio
  Name: Rahman D’Argenio
  Title: Partner

 

ENERGY CAPITAL PARTNERS III (SUNNOVA CO-INVEST), LP
By:   Energy Capital Partners GP III, LP
Its:   General Partner
  By:   Energy Capital Partners III, LLC
  Its:   General Partner
  By:   ECP ControlCo, LLC
  Its:   managing member

 

By:   /s/ Rahman D’Argenio
  Name: Rahman D’Argenio
  Title: Partner

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


QSIP LP
By:   Strategic Capital Investment Partners, LP
Its:   Investment Manager
By:   /s/ David Taylor
  Name:   David Taylor
  Title:   COO / GC

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


 

FS ENERGY AND POWER FUND
By:   /s/ Sean Coleman
  Name:   Sean Coleman
  Title:   Authorized Signatory

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


ELK MOUNTAIN, LTD.
By: Gordy Oil Company, its general partner
By:   

/s/ Russell D. Gordy

  Name:   Russell D. Gordy
  Title:   President

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


MINION TRAIL, LTD.
By: Elk Mountain Ltd., its general partner
By: Gordy Oil Company, its general partner
By:   

/s/ Russell D. Gordy

  Name: Russell D. Gordy
  Title: President

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


MTP ENERGY MASTER FUND LTD
By:   MTP Energy Management LLC Its Investment Manager
By:   Magnetar Financial LLC Its Sole Member

 

By:   

/s/ Michael Turro

  Name: Michael Turro
  Title: Chief Compliance Officer

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


PORTCULLIS PARTNERS, LP
By:   Portcullis G.P., LLC, Its general partner
By:   

/s/ Duane G. Kelley

  Name:   Duane G. Kelley
  Title:   Vice President

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY (DAPER II)
By:   

/s/ Sabrina Liang

  Name:   Sabrina Liang
  Title:   Director, Separate Investments

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


REBECCA RABINOW MANAGEMENT TRUST
By:   

/s/ Richard A. Rabinow

  Name:   Richard A. Rabinow
  Title:   Trustee

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


1811 PESIKOFF FAMILY TRUST
By:    /s/ David Pesikoff
  Name:   David Pesikoff
  Title:   Trustee

 

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


/s/ Richard A. Rabinow
Richard A. Rabinow

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


/s/ Fayez Sarofim
Fayez Sarofim

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


FSI NO. 2 CORPORATION
By:   /s/ Fayez Sarofim
Name:   Fayez Sarofim
Title:   President

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


SCHEDULE I

 

Holders and Addresses

    

Principal Amount

      

PIK Interest Amount

 

Energy Capital Partners III, LP

51 JFK Parkway

Suite 200

Short Hills, NJ 07078

Attn: General Counsel

Fax: (973) 671-6101

       $[***]          $[***]  

Energy Capital Partners III-A, LP

51 JFK Parkway

Suite 200

Short Hills, NJ 07078

Attn: General Counsel

Fax: (973) 671-6101

       $[***]          $[***]  

Energy Capital Partners III-B, LP

51 JFK Parkway

Suite 200

Short Hills, NJ 07078

Attn: General Counsel

Fax: (973) 671-6101

       $[***]          $[***]  

Energy Capital Partners III-C, LP

51 JFK Parkway

Suite 200

Short Hills, NJ 07078

Attn: General Counsel

Fax: (973) 671-6101

       $[***]          $[***]  

Energy Capital Partners III-D, LP

51 JFK Parkway

Suite 200

Short Hills, NJ 07078

Attn: General Counsel

Fax: (973) 671-6101

       $[***]          $[***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


Energy Capital Partners III (Sunnova Co-Invest), LP

51 JFK Parkway

Suite 200

Short Hills, NJ 07078

Attn: General Counsel

Fax: (973) 671-6101

       $[***]          $[***]  

QSIP LP

c/o Strategic Capital Investment Partners, LP

390 Park Avenue

New York, NY 10022

Attention: David Taylor

With a copy to:

Soros Fund Management LLC

250 West 55th Street

New York, NY 10019

Attention: Thomas O’Grady

       $[***]          $[***]  

MTP Energy Master Fund Ltd

1603 Orrington Avenue, 13th Floor

Evanston, IL 60201

Fax 847-905-5682

       $[***]          $[***]  

Elk Mountain, Ltd.

100 Waugh Drive, #400

Houston, TX 77007

       $[***]          $[***]  

Minion Trail, Ltd.

100 Waugh Drive, #400

Houston, TX 77007

       $[***]          $[***]  

FS Energy and Power Fund

c/o FS Investments

201 Rouse Boulevard

Philadelphia, PA 19112

       $[***]          $[***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.


Portcullis Partners, LP

11 Greenway Plaza, Suite 2000 Houston, TX 77046

       $[***]          $[***]  

The Board of Trustees of the Leland Stanford Junior University (DAPER II)

635 Knight Way

Stanford, CA, 94305-7297

       $[***]          $[***]  

Rebecca Rabinow Management Trust

3711 San Felipe #12-I

Houston, TX 77027

       $[***]          $[***]  

1811 Pesikoff Family Trust

1811 North Blvd.

Houston, TX 77098

       $[***]          $[***]  

Richard A. Rabinow

3711 San Felipe #12-I

Houston, TX 77027

       $[***]          $[***]  

Fayez Sarofim

P.O. Box 52830

Houston, TX 77052

       $[***]          $[***]  

FSI No. 2 Corporation

P.O. Box 52830

Houston, TX 77052

       $[***]          $[***]  

 

[***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EX-10.27 16 d709190dex1027.htm EX-10.27 EX-10.27

Exhibit 10.27

FORM OF INDEMNIFICATION AGREEMENT

This Indemnification Agreement (“Agreement”) is made as of ________, by and between Sunnova Energy International Inc., a Delaware corporation (the “Company”) and __________ (“Indemnitee” and, together with the Company, the “Parties”).

RECITALS:

WHEREAS, managers, directors, officers and other persons in service to corporations and other business enterprises are subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or the business enterprise itself;

WHEREAS, highly competent persons have become more reluctant to serve as managers, directors, officers or in other capacities unless they are provided with adequate protection through insurance and adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the business enterprise;

WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its shareholders, and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

WHEREAS, the Bylaws of the Company (as they may be amended, the “Bylaws”) expressly require that the Company indemnify its directors and officers, and empowers the Company to indemnify its employees and agents, as authorized by the Delaware General Corporation Law, as amended (the “Code”), under which the Company is organized and such Bylaws expressly provide that the indemnification provisions set forth therein are not exclusive and thereby contemplate that contracts may be entered into between the Company and directors, officers and other persons with respect to indemnification;

WHEREAS, this Agreement is a supplement to and in furtherance of the protections provided in applicable law, the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and

WHEREAS, (i) Indemnitee does not regard the protection available under the Bylaws, the Company’s other governing documents, and available insurance as adequate in the present circumstances, (ii) the Company has determined that Indemnitee may not be willing to serve or continue to serve as a director, manager, officer, employee, fiduciary or agent of the Company or its Affiliates without adequate protection, (iii) the Company desires and has requested Indemnitee to serve or continue to serve as a director, manager, officer, employee, fiduciary or agent of the Company or its Affiliates , as the case may be, and has proffered this Agreement to Indemnitee as additional inducement to serve in such capacity, and (iv) Indemnitee is willing to serve, or continue to serve, as a director, manager, officer, employee, fiduciary or agent of the Company or its Affiliates, as the case may be, on the condition that he or she be furnished the indemnity provided for herein by the Company.

AGREEMENT:

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Parties do hereby covenant and agree as follows:


Section 1    Definitions.

(a) As used in this Agreement:

“Affiliate” of any specified Person shall mean any other Person directly or indirectly controlling, controlled by or under common control with such specified Person.

“Agreement” shall have the meaning set forth in the preamble.

“Board” shall have the meaning set forth in the recitals.

“Bylaws” shall have the meaning set forth in the recitals.

“Corporate Status” describes the status of a person who is or was a Director, officer, employee, partner, trustee, member, fiduciary or agent of (i) Indemnitor or any Affiliate of Indemnitor or (ii) any other corporation, limited liability company, partnership (general or limited) or joint venture, trust, employee benefit plan, company, foundation, association, organization or other legal enterprise which such person is or was serving at the request of Indemnitor, in each case including, for the avoidance of doubt, any such status held prior to the date of this Agreement.

“Company” shall have the meaning set forth in the preamble.

“Director” shall mean, with respect to a corporation, a member of a board of directors or, with respect to, a limited liability company or partnership, a member of the board of managers or similar board.

“Disinterested Director” shall mean a Director of Indemnitor who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

“Effectiveness Date” shall have the meaning set forth in the recitals.

“Enterprise” shall mean Indemnitor or any Affiliate of Indemnitor and any other corporation, limited liability company, partnership (general or limited), joint venture, trust, employee benefit plan, company, foundation, association, organization or other legal enterprise of which Indemnitee is or was serving at the request of Indemnitor as a Director, officer, employee, fiduciary or agent.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Expenses” shall mean all reasonable costs, expenses, fees and charges, including, without limitation, all attorneys’ fees and costs, disbursements and retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other fees, disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also shall include, without limitation, (i) expenses incurred in connection with any appeal resulting from, incurred by Indemnitee in connection with, arising out of, or in respect of or relating to, any Proceeding, including, without limitation, the premium, security for,


and other costs relating to any cost bond, supersedes bond, injunction bond, appraisal bond, or other appeal bond or its equivalent, (ii) for purposes of Section 12(d) hereof only, expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise, (iii) any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, and (iv) any interest, assessments or other charges in respect of the foregoing. Notwithstanding anything to the contrary in this Agreement, “Expenses” shall not include either (x) “Liabilities” or (y) with respect to Indemnitee, amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

“Governing Documents” shall mean the governing documents of an Enterprise, including a limited liability company agreement, partnership agreement, certificate of incorporation, bylaws or any other similar document.

“Indemnitor” shall mean the Company.

“Indemnity Obligations” shall mean all obligations of Indemnitor to Indemnitee under this Agreement, including Indemnitor’s obligations to provide indemnification to Indemnitee and advance Expenses to Indemnitee under this Agreement.

“Independent Counsel” shall mean a law firm of fifty (50) or more attorneys, or a member or partner of, or person of equivalent seniority in a law firm of fifty (50) or more attorneys, that is experienced in matters of corporation and limited liability company law and neither presently is, nor in the past five (5) years has been, retained to represent: (i) Indemnitor or Indemnitee in any matter material to either such Party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder; provided, however, that the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either Indemnitor or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

“Liabilities” shall mean all claims, liabilities, damages, losses, judgments, orders, fines, penalties and other amounts payable in connection with, arising out of, or in respect of or relating to any Proceeding, including, without limitation, amounts paid in settlement in any Proceeding and all costs and expenses in complying with any judgment, order or decree issued or entered in connection with any Proceeding or any settlement agreement, stipulation or consent decree entered into or issued in settlement of any Proceeding.

“Parties” shall have the meaning set forth in the preamble.

“Person” shall mean any individual, corporation, partnership, limited partnership, limited liability company, trust, governmental agency or body or any other legal entity.

“Proceeding” shall mean any threatened, pending or completed action, completed or reasonably likely claim, government, regulatory and self-regulatory action, suit, arbitration, mediation, alternate dispute resolution mechanism, formal or informal hearing, inquiry or investigation (including any internal investigation), litigation, inquiry, administrative hearing, appeal or any other actual, pending threatened or completed


judicial, administrative or arbitration proceeding (including, without limitation, any such proceeding under the Securities Act of 1933, as amended, or the Exchange Act or any other federal law, state law, statute or regulation), whether brought in the right of Indemnitor or any Affiliate thereof or otherwise, and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, arbitrative or investigative nature, in each case, in or to which Indemnitee was, is, may or will be, or is threatened to become subject or, involved, directly or indirectly, as a party, potential party, non-party witness or otherwise by reason of Indemnitee’s Corporate Status or otherwise in connection with or by reason of Indemnitee’s involvement with Indemnitor or any Affiliate of Indemnitor, by reason of any actual or alleged action taken by Indemnitee (or failure to take action by Indemnitee) or of any action or failure to take action on Indemnitee’s part while acting in his or her Corporate Status, or by reason of the fact that he is or was serving at the request of Indemnitor or any Affiliate thereof as a Director, officer, trustee, general partner, managing member, employee, fiduciary or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement may be sought as provided under this Agreement.

“Spousal Equivalent” shall mean a person who meets the following conditions: (i) irrespective of whether or not the relevant person and the Spousal Equivalent are the same sex, they are the sole spousal equivalent of the other for the last 12 months, (ii) they intend to remain so indefinitely, (iii) neither are married to anyone else, (iv) both are at least 18 years of age and mentally competent to consent to contract, (v) they are not related by blood to a degree of closeness that would prohibit legal marriage in the state in which they legally reside, (vi) they are jointly responsible for each other’s common welfare and financial obligations, and (vii) they have resided together in the same residence for the last 12 months and intend to do so indefinitely.

(b) For the purpose hereof, references to “fines” shall include any excise tax assessed with respect to any employee benefit plan; references to “serving at the request of Indemnitor” shall include any service as a Director, officer, employee, fiduciary or agent of Indemnitor or any enterprise which imposes duties on, or involves services by, such Director, officer, employee, fiduciary or agent with respect to an employee benefit plan, its participants or beneficiaries; and a Person who acted in good faith and in a manner he reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of Indemnitor” as referred to in this Agreement.

Section 2    Indemnity in Third-Party Proceedings. Subject to Section 7 below, Indemnitor shall indemnify and hold harmless Indemnitee (including Indemnitee’s spouse or Spousal Equivalent) to the maximum extent permitted by applicable law, from and against any and all Liabilities and Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses and Liabilities) suffered or reasonably incurred (and, in the case of retainers, reasonably expected to be incurred) by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding (other than any Proceeding brought by or in the right of Indemnitor to procure a judgment in its favor), or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal proceeding had no reasonable cause to believe that Indemnitee’s conduct was unlawful.

Section 3    Indemnity in Proceedings by or in the Right of Indemnitor. Subject to Section 7 below, Indemnitor shall indemnify and hold harmless Indemnitee, to the maximum extent permitted by


applicable law, from and against any and all Liabilities and Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses and Liabilities) suffered or incurred (and, in the case of retainers, reasonably expected to be incurred) by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding brought by or in the right of Indemnitor to procure a judgment in its favor, or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal proceeding had no reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, however no indemnification for Expenses shall be made under this Section 3 in respect of any claim, issue or matter between Indemnitor on the one hand and Indemnitee on the other hand as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to Indemnitor, unless and only to the extent that the Delaware Court of Chancery or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to such indemnification.

Section 4    Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, and without limiting the rights of Indemnitee under any other provision hereof, including any rights to indemnification pursuant to Sections 2 or 3 hereof, to the maximum extent permitted by applicable law, to the extent that Indemnitee is successful, on the merits or otherwise, in defense of any Proceeding or any claim, issue or matter therein, in whole or in part, Indemnitor shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved Proceeding, claim, issue or matter. For purposes of this Section 4 and without limitation, the termination of any Proceeding or claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

Section 5    Indemnification For Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the maximum extent permitted by applicable law and to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status or otherwise in connection with or by reason of Indemnitee’s involvement with Indemnitor or any Affiliate of Indemnitor, a witness or otherwise a participant in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses suffered or incurred (or, in the case of retainers, reasonably expected to be incurred) by Indemnitee or on Indemnitee’s behalf in connection therewith.

Section 6    Additional Indemnification. Notwithstanding any limitation in Sections 2, 3 or 4 hereof, Indemnitor shall indemnify Indemnitee to the maximum extent permitted by applicable law if Indemnitee is a party to or threatened to be made a party to or a participant in any Proceeding (including a Proceeding by or in the right of Indemnitor to procure a judgment in its favor) against all Liabilities and Expenses suffered or reasonably incurred by Indemnitee in connection with such Proceeding, including but not limited to:

(a) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL; and

(b) the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a limited liability or a corporation, as applicable, may indemnify its officers and Directors.


Section 7    Exclusions. Notwithstanding any provision in this Agreement, Indemnitor shall not be obligated under this Agreement to indemnify or hold harmless Indemnitee in connection with any Proceeding (or any part of any Proceeding):

(a) for which payment has actually been made to or on behalf of Indemnitee under any statute, indemnity, insurance policy, vote or otherwise, except with respect to any excess beyond the amount paid, subject to any subrogation rights set forth in Section 13;

(b) for a disgorgement or accounting of profits made pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements);

(c) except as provided in Section 12(d) of this Agreement, initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against Indemnitor or its Directors, officers, employees, agents or other indemnitees, unless (i) the Board authorized the Proceeding (or the relevant part of any Proceeding) prior to its initiation; (ii) Indemnitor provides the indemnification, in its sole discretion, pursuant to the powers vested in Indemnitor under applicable law; (iii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement (for the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (A) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee or (B) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); or (iv) otherwise required by applicable law;

(d) if a final, non-appealable decision by a court of competent jurisdiction in the matter shall determine that such indemnification is not lawful; or

(e) for any claim, issue or matter as to which Indemnitee shall have (i) entered a plea of guilty or nolo contendere to a felony or (ii) received a final, non-appealable judgment or verdict of guilty or its equivalent in any criminal proceeding.

Section 8    Advancement. Indemnitor shall advance, to the maximum extent not prohibited by applicable law, the Expenses reasonably incurred by Indemnitee in connection with any Proceeding, and such advancement shall be made within ten (10) days after the receipt by Indemnitor of a statement or statements requesting such advances from time to time (which shall include invoices received by Indemnitee in connection with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditure made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be required to be included with the invoice), whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement or otherwise than under this Agreement. Advances shall include any and all Expenses reasonably incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to Indemnitor to support the advances claimed. Indemnitee shall qualify for advances upon the execution and delivery to Indemnitor of this Agreement, which shall hereby constitute an undertaking providing that Indemnitee undertakes to repay any and all amounts advanced to the extent that it is ultimately determined by final judicial decision from which there is no further right to appeal that Indemnitee is not entitled to be indemnified by Indemnitor under the terms of this Agreement, and no other form of undertaking shall be required other than the execution of this Agreement. Nothing in this Section 8 shall limit Indemnitee’s right to advancement pursuant to Section 12(d) of this Agreement. This Section 8 shall not apply to any claim made by Indemnitee for which advancement of Expenses is excluded pursuant to Section 7 hereof.


Section 9    Procedure for Notification and Defense of Claim.

(a) Indemnitee shall promptly notify Indemnitor in writing of any Proceeding with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder following the receipt by Indemnitee of written notice thereof. The written notification to Indemnitor shall include a description of the nature of the Proceeding and, to the extent known, the facts underlying the Proceeding. To obtain indemnification under this Agreement, Indemnitee shall submit to Indemnitor a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification and advancement of Expenses under this Agreement. Any delay or failure by Indemnitee to notify Indemnitor hereunder will not relieve Indemnitor from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and any delay or failure in so notifying Indemnitor shall not constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of Indemnitor shall, promptly upon receipt of such a request for indemnification and advancement of Expenses, advise the Board in writing that Indemnitee has requested indemnification.

(b) In the event Indemnitee is entitled to indemnification and/or advancement of Expenses with respect to any Proceeding, Indemnitee may, at Indemnitee’s option, (i) retain counsel (including local counsel) selected by Indemnitee and approved (which approval shall not be unreasonably withheld, conditioned or delayed) by Indemnitor to defend Indemnitee in such Proceeding, at the sole expense of Indemnitor, or (ii) have Indemnitor assume the defense of Indemnitee in such Proceeding, in which case Indemnitor shall assume the defense of such Proceeding with counsel selected by Indemnitor and approved by Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed) within ten (10) days of Indemnitor’s receipt of written notice of Indemnitee’s election to cause Indemnitor to do so. If Indemnitor is required to assume the defense of any such Proceeding, it shall engage legal counsel (including local counsel) for such defense, and Indemnitor shall be solely responsible for all fees and expenses of such counsel and otherwise of such defense. Such counsel may represent both Indemnitee and Indemnitor (and any other party or parties entitled to be indemnified by Indemnitor with respect to such matter) unless, in the reasonable opinion of counsel to Indemnitee, joint representation of all such parties could give rise to a conflict of interest between Indemnitee and Indemnitor (or any other such party or parties) or there may be legal defenses available to Indemnitee that are not available to Indemnitor (or any such other party or parties). Notwithstanding a Party’s assumption of responsibility for defense of a Proceeding, each Party shall have the right to engage separate counsel at its own expense. If Indemnitor has responsibility for defense of a Proceeding, Indemnitor shall provide the Indemnitee and its counsel with all copies of pleadings and material correspondence relating to the Proceeding. Indemnitee and Indemnitor shall reasonably cooperate in the defense of any Proceeding with respect to which indemnification is sought hereunder, regardless of whether Indemnitor or Indemnitee assumes the defense thereof. Indemnitee may not settle or compromise any Proceeding without the prior written consent of Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. Indemnitor may not settle or compromise any Proceeding without the prior written consent of Indemnitee.

Section 10    Procedure Upon Application for Indemnification.

(a) Upon written request by Indemnitee for indemnification pursuant to Section 9(a) hereof, if any determination by Indemnitor is required by applicable law with respect to Indemnitee’s entitlement thereto, such determination shall be made (i) if Indemnitee shall request such determination be made by Independent Counsel, by Independent Counsel, and (ii) in all other circumstances, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a


committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D) if so directed by the Board, by the members or stockholders of Indemnitor; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by Indemnitor (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and Indemnitor hereby indemnifies and agrees to hold Indemnitee harmless therefrom and agrees to pay such Expenses as they are incurred. Indemnitor will not deny any written request for indemnification hereunder made in good faith by Indemnitee unless a determination as to Indemnitee’s entitlement to such indemnification described in this Section 10(a) has been made. Indemnitor agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Liabilities and Expenses arising out of or relating to this Agreement or its engagement pursuant hereto.

(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(a) hereof, (i) the Independent Counsel shall be selected by Indemnitor within ten (10) days of the Submission Date (the cost of such Independent Counsel to be paid by Indemnitor), (ii) Indemnitor shall give written notice to Indemnitee advising it of the identity of the Independent Counsel so selected and (iii) Indemnitee may, within ten (10) days after such written notice of selection shall have been given, deliver to Indemnitor Indemnitee’s written objection to such selection. Such objection by Indemnitee may be asserted only on the ground that the Independent Counsel selected does not meet the requirements of “Independent Counsel” as defined in this Agreement. If such written objection is made, the Independent Counsel selected shall not serve as Independent Counsel unless and until Indemnitee withdraws the objection or a court has determined that such objection is without merit. Absent a timely objection, the person so selected shall act as Independent Counsel. If no Independent Counsel shall have been selected and not objected to before the later of (i) thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof (the “Submission Date”) and (ii) ten (10) days after the final disposition of the Proceeding, each of Indemnitor and Indemnitee shall select a law firm or member of a law firm meeting the qualifications to serve as Independent Counsel, and such law firms or members of law firms shall select the Independent Counsel. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

Section 11    Presumptions and Effect of Certain Proceedings.

(a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall, to the fullest extent not prohibited by applicable law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9(a) of this Agreement, and Indemnitor shall, to the fullest extent not prohibited by applicable law, have the burden of proof to overcome that presumption by clear and convincing evidence in connection with the making by any


person, persons or entity of any determination contrary to that presumption. Neither (i) the failure of Indemnitor (including by its Directors, the Board, any committee or subgroup of the Board, Independent Counsel or stockholders) to have made a determination that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual determination by Indemnitor (including by its Directors, the Board, any committee or subgroup of the Board, Independent Counsel or stockholders) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

(b) Subject to Section 12(e) hereof, if the person, persons or entity empowered or selected under Section 10 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by Indemnitor of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by applicable law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if (i) the determination is to be made by Independent Counsel and Indemnitee objects to Indemnitor’s selection of Independent Counsel and (ii) the Independent Counsel ultimately selected requires such additional time for the obtaining or evaluating of documentation or information relating thereto; provided further, however, that such 60-day period may also be extended for a reasonable time, not to exceed an additional sixty (60) days, if the determination of entitlement to indemnification is to be made by the members or stockholders of Indemnitor.

(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification under this Agreement or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of Indemnitor or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.

(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee relied in good faith on (i) the records or books of account of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the Enterprise, or its board of directors or counsel selected by any committee of the board of directors, (iv) information or records given or reports made to the Enterprise by an independent certified public accountant, appraiser, investment banker or other expert selected with reasonable care by the Enterprise or its board of directors or any committee thereof or (v) if the Indemnitee has met any other related standard set forth in the Governing Documents. The provisions of this Section 11(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement or otherwise.

(e) The knowledge or actions, or failure to act, of any Director, officer, employee or agent of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

(f) Indemnitor acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement


of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

Section 12    Remedies of Indemnitee.

(a) Subject to Section 12(e) hereof, in the event that (i) a determination is made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement is not timely made pursuant to Section 8 or 12(d) of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(a) of this Agreement within sixty (60) days after receipt by Indemnitor of the request for indemnification or the final disposition of the Proceeding, (iv) payment of indemnification pursuant to this Agreement is not made (A) within thirty days after a determination has been made that Indemnitee is entitled to indemnification or (B) pursuant to Sections 4 or 5 or the last sentence of Section 10(a) of this Agreement within ten (10) days after receipt by Indemnitor of a written request therefor, (v) payment of indemnification pursuant to Sections 2, 3 or 6 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that Indemnitor or any other Person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by the Delaware Court of Chancery of Indemnitee’s entitlement to such indemnification or advancement. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration with respect to his or her entitlement to such indemnification or advancement of Expenses, to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a). Indemnitor shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

(b) In the event that a determination shall have been made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12 Indemnitor shall, to the fullest extent not prohibited by law, have the burden of proving Indemnitee is not entitled to indemnification or advancement, as the case may be, by clear and convincing evidence.

(c) If a determination shall have been made pursuant to Section 10(a) of this Agreement that Indemnitee is entitled to indemnification, Indemnitor shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent a prohibition of such indemnification under applicable law.

(d) Indemnitor shall, to the fullest extent not prohibited by applicable law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate

 


in any such court or before any such arbitrator that Indemnitor is bound by all the provisions of this Agreement. It is the intent of Indemnitor that Indemnitee not be required to incur Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement (or under any directors’ and officers’ liability insurance policies maintained by Indemnitor or any Affiliate of Indemnitor) by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to Indemnitee hereunder. Indemnitor shall indemnify Indemnitee against any and all such Expenses and, if requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later than within ten (10) days after receipt by Indemnitor of a written request therefor) advance, to the maximum extent not prohibited by applicable law, such Expenses to Indemnitee, as they are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advancement from Indemnitor under this Agreement or under any directors’ and officers’ liability insurance policies maintained by Indemnitor or any Affiliate of Indemnitor, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement or insurance recovery, as the case may be.

(e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, including any appeal thereof; provided that, for the avoidance of doubt, in the absence of any such determination as to indemnification prior to the final disposition of such Proceeding, Indemnitor shall advance Expenses as they are incurred with respect to such Proceeding.

Section 13    Non-Exclusivity; Survival of Rights; Insurance; Subrogation.

(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, Indemnitor’s Governing Documents, any agreement, a vote of members or stockholders or a resolution of Directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee by reason of Indemnitee’s Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement than would be afforded currently under Indemnitor’s Governing Documents or this Agreement, it is the intent of the Parties that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

(b) Indemnitor hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and insurance provided by one or more Persons with whom or which Indemnitee may be associated. To the extent not in contravention of any insurance policy or policies providing liability or other insurance for the Company or any director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise, Indemnitor hereby acknowledges and agrees that (i) Indemnitor shall be the indemnitor of first resort with respect to any Proceeding, Expense, Liability or matter that is the subject of the Indemnity Obligations, (ii) Indemnitor shall be primarily liable for all Indemnity Obligations and any indemnification afforded to Indemnitee in respect of any Proceeding, Expense, Liability or matter that is the subject of Indemnity Obligations, whether created by applicable law, organizational or constituent documents, contract (including this Agreement) or otherwise, (iii) any obligation of any other Persons with whom or which Indemnitee may be associated to indemnify Indemnitee or advance Expenses or Liabilities to Indemnitee


in respect of any Proceeding shall be secondary to the obligations of Indemnitor hereunder, (iv) Indemnitor shall be required to indemnify Indemnitee and advance Expenses or Liabilities to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other Person with whom or which Indemnitee may be associated or insurer of any such Person and (v) Indemnitor irrevocably waives, relinquishes and releases any other Person with whom or which Indemnitee may be associated from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by Indemnitor hereunder. In the event any other Person with whom or which Indemnitee may be associated or their insurers advances or extinguishes any liability or loss which is the subject of any Indemnity Obligation owed by Indemnitor or payable under any Company insurance policy, the payor shall have a right of subrogation against Indemnitor or its insurer or insurers for all amounts so paid which would otherwise be payable by Indemnitor or its insurer or insurers under this Agreement. In no event will payment of an Indemnity Obligation by any other Person with whom or which Indemnitee may be associated or their insurers affect the obligations of Indemnitor hereunder or shift primary liability for any Indemnity Obligation to any other Person with whom or which Indemnitee may be associated. Any indemnification, insurance or advancement provided by any other Person with whom or which Indemnitee may be associated with respect to any Liability arising as a result of Indemnitee’s Corporate Status or capacity as an officer or Director of any Person is specifically in excess over any Indemnity Obligation of Indemnitor or any collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by Indemnitor under this Agreement. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received payment for such amounts under any insurance policy, contract, agreement or otherwise, subject to any subrogation right set forth in this Section 13.

(c) To the extent that Indemnitor maintains an insurance policy or policies providing liability insurance for Directors, officers, trustees, general partners, managing members, employees, fiduciaries, or agents of Indemnitor or of any other Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such Director, officer, trustee, general partner, managing member, employee, fiduciary or agent under such policy or policies and such policies shall provide for and recognize that the insurance policies are primary to any rights to indemnification, advancement or insurance proceeds to which Indemnitee may be entitled from one or more Persons with whom or which Indemnitee may be associated to the same extent as Indemnitor’s indemnification and advancement obligations set forth in this Agreement. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, Indemnitor has director and officer liability insurance in effect, Indemnitor shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. Indemnitor shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

(d) In the event of any payment under this Agreement, Indemnitor shall not be subrogated to the rights of recovery of Indemnitee, including rights of indemnification provided to Indemnitee from any other person or entity with whom Indemnitee may be associated; provided, however, that Indemnitor shall be subrogated to the extent of any such payment of all rights of recovery of Indemnitee under insurance policies of Indemnitor or any of its subsidiaries.

(e) The indemnification and contribution provided for in this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of Indemnitee.

Section 14    Duration of Agreement; Not Employment Contract. This Agreement shall continue until and terminate upon the latest of: (a) ten (10) years after the date that Indemnitee shall have


ceased to serve as a Director, officer, employee, fiduciary or agent of Indemnitor or any other Enterprise and (b) for so long as any Proceeding, including any appeal thereof, is pending in respect of which Indemnitee is granted rights of indemnification or advancement hereunder and of any proceeding, including any appeal thereof, commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto, even after Indemnitee has ceased to serve as a director or officer of the Company or as a director, officer, trustee, general partner, managing member, officer, employee, agent or fiduciary of any other Enterprise, as applicable, and for one (1) year after the final termination of any such Proceeding, including any appeal, and of any proceeding commenced by Indemnitee pursuant to Section 12 relating thereto. This Agreement shall be binding upon Indemnitor and its successors and assigns, including, without limitation, any corporation or other entity which may have acquired all or substantially all of Indemnitor’s assets or business or into which Indemnitor may be reorganized, consolidated or merged or into which Indemnitor may elect to convert, and shall inure to the benefit of Indemnitee and Indemnitee’s heirs, executors and administrators. This Agreement shall not be deemed an employment contract between Indemnitor (or any of its subsidiaries or any other Enterprise) and Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s employment with Indemnitor (or any of its subsidiaries or any other Enterprise), if any, is at will, and Indemnitee may be discharged at any time for any reason, with or without cause, except as may be otherwise provided in any written employment contract between Indemnitee and Indemnitor (or any of its subsidiaries or any other Enterprise), other applicable formal severance policies duly adopted by the Board, or, with respect to service as a Director or officer of Indemnitor, by Indemnitor’s Governing Documents or Delaware law.

Section 15    Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by applicable law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the Parties; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

Section 16    Enforcement.

(a) Indemnitor expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a Director, officer, employee, fiduciary or agent of Indemnitor, and Indemnitor acknowledges that Indemnitee is relying upon this Agreement in serving as a Director, officer, employee, fiduciary or agent of Indemnitor.

(b) This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, among the Parties with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Governing Documents and applicable law, and shall not be deemed a substitute therefore, nor diminish or abrogate any rights of Indemnitee thereunder.

Section 17    Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the Parties thereto. No amendment, alteration or repeal of this Agreement shall adversely affect any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. No waiver of any of the provisions of this Agreement shall be deemed to be or shall constitute a waiver of any other provision of this Agreement nor shall any waiver constitute a continuing waiver.


Section 18    Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by electronic mail or otherwise delivered by hand, messenger or courier service addressed:

(a) if to Indemnitee, to Indemnitee’s address or electronic mail address as shown on the signature page of this Agreement or in the Company’s records, as may be updated in accordance with the provisions hereof; or

(b) if to the Company, to the attention of the Chief Executive Officer or Chief Financial Officer of the Company at Sunnova Energy International Inc., Attn: General Counsel, 20 Greenway Plaza, Suite 475, Houston, Texas 77046, or at such other current address of Indemnitor as Indemnitor shall have furnished to Indemnitee for such purposes.

Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if sent via mail, at the earlier of its receipt or five days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if sent via electronic mail, upon confirmation of delivery when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day.

Section 19    Contribution.

(a) Whether or not the indemnification provided in Sections 2, 3, 4, 5 and 6 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which Indemnitor is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), Indemnitor shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and Indemnitor hereby waives and relinquishes any right of contribution it may have against Indemnitee. Indemnitor shall not enter into any settlement of any action, suit or proceeding in which Indemnitor is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final and unconditional release of all claims asserted against Indemnitee.

(b) Without diminishing or impairing the obligations of Indemnitor set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which Indemnitor is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), Indemnitor shall contribute to the amount of Expenses and Liabilities incurred or paid or payable by Indemnitee or on Indemnitee’s behalf in proportion to the relative benefits received by Indemnitor and all officers, Directors or employees of Indemnitor, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction or events from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of Indemnitor and all officers, Directors or employees of Indemnitor other than Indemnitee who are jointly liable with Indemnitee (or


would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the transaction or events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which applicable law may require to be considered. The relative fault of Indemnitor and all officers, Directors or employees of Indemnitor, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.

(c) To the maximum extent permitted by applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, Indemnitor, in lieu of indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for Liabilities or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by Indemnitor and Indemnitee as a result of the event(s) and transaction(s) giving cause to such Proceeding; and (ii) the relative fault of Indemnitor (and its Directors, officers, employees and agents) and Indemnitee in connection with such event(s) and transaction(s).

Section 20    Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the Parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Parties hereby irrevocably and unconditionally (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court of Chancery, and not in any other state or federal court in the United States of America or any court in any other country, (b) consent to submit to the exclusive jurisdiction of the Delaware Court of Chancery for purposes of any action or proceeding arising out of or in connection with this Agreement, (c) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court of Chancery, and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court of Chancery has been brought in an improper or inconvenient forum.

Section 21    Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the Party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

Section 22    Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

[Remainder of page intentionally left blank; signatures follow]


IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed as of the day and year first above written.

 

SUNNOVA ENERGY INTERNATIONAL INC.
By:    
  Name: [_________________]
  Title: [____________________________]
INDEMNITEE
     
Name: [_________________]
Residence Address:

 

 

 

Email address:

 

 

Signature Page to Indemnification Agreement

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