Exhibit 10.2 EXECUTION VERSION CREDIT AND GUARANTY

Exhibit 10.2 EXECUTION VERSION CREDIT AND GUARANTY
Exhibit 10.2
EXECUTION VERSION
CREDIT AND GUARANTY AGREEMENT
dated as of January 28, 2015
among
TERRAFORM POWER OPERATING, LLC,
as Borrower,
TERRAFORM POWER, LLC,
as a Guarantor,
CERTAIN SUBSIDIARIES OF TERRAFORM POWER OPERATING, LLC,
as Guarantors,
VARIOUS LENDERS,
BARCLAYS BANK PLC,
as Administrative Agent, Collateral Agent, Joint Lead Arranger and Joint Bookrunner,
CITIGROUP GLOBAL MARKETS INC.
GOLDMAN SACHS BANK USA,
MACQUARIE CAPITAL (USA) INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arrangers, Joint Bookrunners and Co-Syndication Agents,
and
KEYBANK NATIONAL ASSOCIATION
and
ROYAL BANK OF CANADA,
as Co-Documentation Agents
$550 Million Revolving Loan
TABLE OF CONTENTS
Page
Section 1.
1.1.
1.2.
1.3.
1.4.
1.5.
DEFINITIONS AND INTERPRETATION
Definitions
Accounting Terms
Interpretation, Etc
Exchange Rates; Currency Equivalents
Letter of Credit Amounts
1
1
43
43
44
44
Section 2.
2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.
2.9.
2.10.
2.11.
2.12.
2.13.
2.14.
2.15.
2.16.
2.17.
2.18.
2.19.
2.20.
2.21.
2.22.
2.23.
2.24.
LOANS AND LETTERS OF CREDIT
[Reserved.]
Revolving Loans
Swing Line Loans
Issuance of Letters of Credit and Purchase of Participations Therein
Pro Rata Shares; Availability of Funds
Use of Proceeds
Evidence of Debt; Register; Lenders’ Books and Records; Notes
Interest on Loans
Conversion/Continuation
Default Interest
Fees
[Reserved.]
Voluntary Prepayments/Commitment Reductions
Mandatory Prepayments/Commitment Reductions
Application of Prepayments/Reductions
General Provisions Regarding Payments
Ratable Sharing
Making or Maintaining Eurodollar Rate Loans
Increased Costs; Capital Adequacy
Taxes; Withholding, Etc
Obligation to Mitigate
Defaulting Lenders
Removal or Replacement of a Lender
Incremental Facilities
44
44
44
45
48
54
55
55
56
58
58
59
60
60
62
62
63
64
65
66
68
72
72
75
77
Section 3.
3.1.
3.2.
CONDITIONS PRECEDENT
Closing Date
Conditions to Each Credit Extension
78
78
82
Section 4.
4.1.
4.2.
4.3.
4.4.
4.5.
REPRESENTATIONS AND WARRANTIES
Organization; Requisite Power and Authority; Qualification
Equity Interests and Ownership
Due Authorization
No Conflict
Governmental Consents
85
85
85
85
85
86
i
4.6.
4.7.
4.8.
4.9.
4.10.
4.11.
4.12.
4.13.
4.14.
4.15.
4.16.
4.17.
4.18.
4.19.
4.20.
4.21.
4.22.
4.23.
4.24.
4.25.
4.26.
Binding Obligation
Historical Financial Statements
Projections
No Material Adverse Effect
No Restricted Junior Payments
Adverse Proceedings, Etc
Payment of Taxes
Properties
Environmental Matters
No Defaults
Material Contracts
Governmental Regulation
Federal Reserve Regulations; Exchange Act
Employee Matters
Employee Benefit Plans
Certain Fees
Solvency
Compliance with Statutes, Etc
Disclosure
PATRIOT Act
Energy Regulatory Matters
86
86
86
86
86
87
87
87
88
88
88
88
89
89
89
89
90
90
90
90
91
Section 5.
5.1.
5.2.
5.3.
5.4.
5.5.
5.6.
5.7.
5.8.
5.9.
5.10.
5.11.
5.12.
5.13.
5.14.
5.15.
5.16.
5.17.
5.18.
AFFIRMATIVE COVENANTS
Financial Statements and Other Reports
Existence
Payment of Taxes and Claims
Maintenance of Properties
Insurance
Books and Records; Inspections
Lenders Meetings
Compliance with Laws
Environmental
Subsidiaries
Additional Material Real Estate Assets
[Reserved.]
Further Assurances
Cash Management Systems
Designation of Subsidiaries
Ratings
Energy Regulatory Status
Post-Closing Obligations
93
93
97
97
97
98
98
98
98
99
100
100
102
102
103
103
103
103
103
Section 6.
6.1.
6.2.
6.3.
6.4.
NEGATIVE COVENANTS
Indebtedness
Liens
No Further Negative Pledges
Restricted Junior Payments
104
104
106
109
109
ii
6.5.
6.6.
6.7.
6.8.
6.9.
6.10.
6.11.
6.12.
6.13.
6.14.
6.15.
Restrictions on Subsidiary Distributions
Investments
Financial Covenants
Fundamental Changes; Disposition of Assets
Reserved
Sales and Lease-Backs
Transactions with Shareholders and Affiliates
Conduct of Business
Permitted Activities of Project Holdcos
Amendments or Waivers of Organizational Documents and Certain Material Contracts
Fiscal Year
110
111
112
113
114
114
114
115
115
115
115
Section 7.
7.1.
7.2.
7.3.
7.4.
7.5.
7.6.
7.7.
7.8.
7.9.
7.10.
7.11.
7.12.
7.13.
GUARANTY
Guaranty of the Obligations
Contribution by Guarantors
Payment by Guarantors
Liability of Guarantors Absolute
Waivers by Guarantors
Guarantors’ Rights of Subrogation, Contribution, Etc
Subordination of Other Obligations
Continuing Guaranty
Authority of Guarantors or Borrower
Financial Condition of Borrower
Bankruptcy, Etc
Discharge of Guaranty Upon Sale of Guarantor
Keepwell
115
115
116
116
117
119
119
120
120
121
121
121
122
122
Section 8.
8.1.
EVENTS OF DEFAULT
Events of Default
122
122
Section 9.
9.1.
9.2.
9.3.
9.4.
9.5.
9.6.
9.7.
9.8.
9.9.
9.10.
AGENTS
Appointment of Agents
Powers and Duties
General Immunity
Agents Entitled to Act as Lender
Lenders’ Representations, Warranties and Acknowledgment
Right to Indemnity
Successor Administrative Agent, Collateral Agent and Swing Line Lender
Collateral Documents and Guaranty
Withholding Taxes
Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim
125
125
126
126
128
128
129
129
131
133
133
Section 10. MISCELLANEOUS
10.1. Notices
134
134
iii
10.2.
10.3.
10.4.
10.5.
10.6.
10.7.
10.8.
10.9.
10.10.
10.11.
10.12.
10.13.
10.14.
10.15.
10.16.
10.17.
10.18.
10.19.
10.20.
10.21.
10.22.
10.23.
10.24.
Expenses
Indemnity
Set-Off
Amendments and Waivers
Successors and Assigns; Participations
Independence of Covenants
Survival of Representations, Warranties and Agreements
No Waiver; Remedies Cumulative
Marshalling; Payments Set Aside
Severability
Obligations Several; Independent Nature of Lenders’ Rights
Headings
APPLICABLE LAW
CONSENT TO JURISDICTION
WAIVER OF JURY TRIAL
Confidentiality
Usury Savings Clause
Effectiveness; Counterparts
Entire Agreement
PATRIOT Act
Electronic Execution of Assignments
No Fiduciary Duty
Judgment Currency
iv
136
136
138
138
141
145
145
145
145
146
146
146
146
146
147
148
149
149
149
150
150
150
151
APPENDICES:
A
B
Revolving Commitments
Notice Addresses
SCHEDULES:
3.1(f)
4.1
4.2
4.7
4.13
4.16
4.26
5.15
5.18
6.2(r)
6.3
6.5
6.6
6.11
Certain Existing Indebtedness
Jurisdictions of Organization and Qualification
Equity Interests and Ownership
Historical Financial Statements
Real Estate Assets
Material Contracts
Entities Regulated Under PURPA
Required Restricted Subsidiaries
Post-Closing Obligations
Certain Liens
Certain Negative Pledges
Certain Restrictions on Subsidiary Distributions
Certain Investments
Certain Affiliate Transactions
EXHIBITS:
A-1
A-2
A-3
B-1
B-2
C
D
E
F-1
F-2
G
H
I
J
K
L
M
N
Funding Notice
Conversion/Continuation Notice
Issuance Notice
Revolving Loan Note
Swing Line Note
Compliance Certificate
Assignment Agreement
Certificate re Non-Bank Status
Closing Date Certificate
Solvency Certificate
Counterpart Agreement
Pledge and Security Agreement
Mortgage
[Reserved]
Intercompany Note
Joinder Agreement
Incumbency Certificate
Prepayment Notice
v
CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of January 28, 2015, is entered into by and among TERRAFORM POWER
OPERATING, LLC, a Delaware limited liability company (“Borrower”), TERRAFORM POWER, LLC, a Delaware limited liability company
(“Holdings”), CERTAIN SUBSIDIARIES OF BORROWER, as Guarantors, the Lenders party hereto from time to time, BARCLAYS BANK PLC
(“Barclays”), as Administrative Agent (together with its permitted successors in such capacity, “Administrative Agent”), and as Collateral Agent
(together with its permitted successor in such capacity, “Collateral Agent”), CITIGROUP GLOBAL MARKETS INC. (“Citigroup”), GOLDMAN
SACHS BANK USA (“Goldman Sachs”), MACQUARIE CAPITAL (USA) INC. (“Macquarie”), MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED (“MLPFS”) and MORGAN STANLEY SENIOR FUNDING, INC. (“Morgan Stanley”), as Co-Syndication Agents (in such
capacity, “Syndication Agents”), KEYBANK NATIONAL ASSOCIATION (“KeyBank”) and ROYAL BANK OF CANADA (“Royal Bank”) as
Co-Documentation Agents (in such capacity, “Documentation Agents”) and Barclays, Citigroup, Goldman Sachs, Macquarie, MLPFS and Morgan
Stanley, as Joint Lead Arrangers (in such capacity, “Arrangers”) and Joint Bookrunners.
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Lenders have agreed to extend a revolving credit facility to Borrower, in an aggregate principal amount not to exceed $550
million, the proceeds of which will be used in accordance with Section 2.6(a);
WHEREAS, Borrower has agreed to secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien on substantially all of its assets, including a pledge of all of the Equity Interests of each of its Domestic Subsidiaries subject to the
terms of the Pledge and Security Agreement; and
WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder and to secure their respective Obligations by
granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on substantially all of their respective assets, including a pledge
of all of the Equity Interests of each of their respective Domestic Subsidiaries (including Borrower) subject to the terms of the Pledge and Security
Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1. Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:
“Acquired Business” means the business acquired in connection with the Acquisition.
1
“Acquisition” means the acquisition contemplated by the Acquisition Agreement, including the assignment to the Borrower or a
Restricted Subsidiary of the Borrower of Holdings’ rights and interests under the Acquisition Agreement (which assignment shall be pursuant to
documentation in form and substance reasonably satisfactory to Agent and Arrangers).
“Acquisition Agreement” means that certain Purchase and Sale Agreement, dated as of November 17, 2014, among SunEdison, Inc.,
Holdings, Parent, First Wind Holdings, LLC, First Wind Capital, LLC, D.E. Shaw Composite Holdings, L.L.C., certain members of First Wind
Holdings, LLC, D.E. Shaw Composite Holdings, L.L.C. and Madison Dearborn Capital Partners IV, L.P. after giving effect to any amendment,
consent, modification or waiver other than those amendments, consents, modifications or waivers that are materially adverse to any interest of the
Lenders, unless Administrative Agent and the Arrangers have provided prior written consent (such consent not to be unreasonably withheld or
delayed).
“Adjusted Eurodollar Rate” means, as to any Eurodollar Rate Loan for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to (a) the Eurodollar Rate for such Interest Period divided by (b) one minus the Eurodollar
Reserve Percentage.
“Administrative Agent” as defined in the preamble hereto.
“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise),
governmental investigation or arbitration (whether or not purportedly on behalf of Borrower or any of its Subsidiaries) at law or in equity, or before
or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Borrower
or any of its Subsidiaries, threatened in writing against or affecting Borrower or any of its Subsidiaries or any property of Borrower or any of its
Subsidiaries.
“Affected Lender” as defined in Section 2.18(b).
“Affected Loans” as defined in Section 2.18(b).
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control
with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and
“under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 5% or more of the
Securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
2
“Agent” means each of (i) Administrative Agent, (ii) each Syndication Agent, (iii) each Documentation Agent, (iv) Collateral Agent,
(v) each Bookrunner and (vi) any other Person appointed under the Credit Documents to serve in an agent or similar capacity.
“Agent Affiliates” as defined in Section 10.1(b)(iii).
“Aggregate Amounts Due” as defined in Section 2.17.
“Aggregate Payments” as defined in Section 7.2.
“Agreement” means this Credit and Guaranty Agreement, dated as of January 28, 2015, as it may be amended, restated, supplemented
or otherwise modified from time to time.
“ALTA” means the American Land and Title Association.
“Alternative Currency” means each of Canadian Dollars, Euros, Pounds Sterling, and each other currency that is approved in
accordance with Section 1.5(b).
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount
thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, at
such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency
with Dollars.
“Applicable Margin” and “Applicable Revolving Commitment Fee Percentage” mean (i) from the Closing Date until the date of
delivery of the Compliance Certificate and the financial statements for the period ending June 30, 2015, a percentage, per annum, determined by
reference to the following table as if the Leverage Ratio then in effect were 4.00:1.00; and (ii) thereafter, a percentage, per annum, determined by
reference to the Leverage Ratio in effect from time to time as set forth below:
Leverage Ratio
<3.50:1.00
≥ 3.50:1.00 but ≤ 4.50:1.00
> 4.50:1.00
Applicable Margin for
Eurodollar Rate Loans
Applicable Margin for
Base Rate Loans
2.25%
2.50%
2.75%
1.25%
1.50%
1.75%
Applicable Revolving
Commitment Fee
Percentage
0.375%
0.50%
0.50%
Each change in the Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall be effective on and after the
third Business Day after the date of delivery to Administrative Agent of financial statements pursuant to Section 5.1(b) and (c) and a Compliance
Certificate pursuant to Section 5.1(d) calculating the Leverage Ratio. At any time Borrower has not submitted to Administrative Agent the
applicable information as and
3
when required under Section 5.1(d), the Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall be determined as if the
Leverage Ratio were in excess of 4.50:1.00. Within one Business Day of receipt of the applicable information under Section 5.1(d), Administrative
Agent shall give each Lender telefacsimile or telephonic notice (confirmed in writing) of the Applicable Margin and the Applicable Revolving
Commitment Fee Percentage in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 5.1 is
shown to be inaccurate (at a time when this Agreement is in effect and unpaid Obligations under this Agreement are outstanding (other than
indemnities and other contingent obligations not yet due and payable)), and such inaccuracy, if corrected, would have led to the application of a
higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then
(x) Borrower shall promptly deliver to Administrative Agent a correct certificate required by Section 5.1(d) for such Applicable Period, (y) if such
inaccuracy, if corrected, would have resulted in a higher Applicable Margin, the Applicable Margin shall be deemed to be such higher Applicable
Margin for the Applicable Period and (z) Borrower shall immediately pay to Administrative Agent the accrued additional interest owing as a result
of such increased Applicable Margin for such Applicable Period. Nothing in this paragraph shall limit the right of Administrative Agent or any
Lender under Section 2.10 or Section 8.
“Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at
which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect
thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of
Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference
to which the applicable Adjusted Eurodollar Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit
or other assets which include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to
time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any
change in the Applicable Reserve Requirement.
“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any
Credit Party provides to Administrative Agent pursuant to any Credit Document or the transactions contemplated therein which is distributed to
Agents, Lenders or Issuing Bank by means of electronic communications pursuant to Section 10.1(b).
“Arrangers” as defined in the preamble hereto.
“Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, exclusive license
(as licensor or sublicensor), transfer or other disposition to, or any exchange of property with, any Person (other than Borrower or any Guarantor),
in one transaction or a series of transactions, of all or any part of Holdings’ or any of
4
its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now
owned or hereafter acquired, leased or licensed, including the Equity Interests of any of Holdings’ Subsidiaries (but excluding, for the avoidance
of doubt, the Equity Interests in Holdings), other than (i) inventory (or other assets, including energy and renewable energy credits, climate
change levy exemption certificates, embedded benefits and other environmental attributes) sold, leased or licensed out in the ordinary course of
business (excluding any such sales, leases or licenses of a Non-Recourse Subsidiary or out of a Non-Recourse Subsidiary of operations or
divisions discontinued or to be discontinued), (ii) the sale by Holdings or any Subsidiary of property that is no longer useful or necessary to the
conduct of the business of Holdings or any Subsidiary in the ordinary course of business (excluding sales of one or more Non-Recourse
Subsidiaries), (iii) any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the
ordinary course of business, (iv) the granting of Liens not prohibited by Section 6.2, (v) sale and leaseback transactions by Non-Recourse
Subsidiaries permitted by Section 6.10 and dispositions by Non-Recourse Subsidiaries to tax equity investors in connection with tax equity
financings, and (vi) sales, leases or sub-leases (as lessor or sublessor), sale and leasebacks, assignments, conveyances, exclusive licenses (as
licensor or sublicensor), transfers or other dispositions to, or any exchanges of property with, any Person for aggregate consideration of less than
$100,000,000 with respect to any transaction or series of related transactions and less than $200,000,000 in the aggregate in any Fiscal Year. In no
event shall entering into a Hedge Agreement be considered to be an Asset Sale.
“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such
amendments or modifications as may be approved by Administrative Agent.
“Assignment Effective Date” as defined in Section 10.6(b).
“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer),
chief executive officer, president, vice president (or the equivalent thereof), chief financial officer, treasurer or other authorized signatory of such
Person; provided that the secretary or assistant secretary of such Person shall have delivered an incumbency certificate to Administrative Agent
as to the authority of such Authorized Officer.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor
statute.
“Barclays” as defined in the preamble hereto.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal
Funds Effective Rate in effect on such day plus 1∕2 of 1% and (iii) the sum of (a) the Adjusted Eurodollar Rate (after giving effect to any Adjusted
Eurodollar Rate “floor”) that would be payable on such day for a Eurodollar Rate Loan with a one-month interest period plus (b) the difference
between the Applicable Margin for Eurodollar Rate Loans and the Applicable Margin for Base Rate Loans. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
5
“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.
“Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.
“Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
“BofA” as defined in Section 10.20.
“Bookrunners” means Arrangers, in their capacity as joint lead arrangers and joint bookrunners.
“Borrower” as defined in the preamble hereto.
“Borrower Debt Service Expense” means, for any period, an amount equal to the sum, without duplication, of (i) Borrower Interest
Expense and (ii) scheduled payments of principal on Borrower Total Debt. Notwithstanding the foregoing, Borrower Debt Service Expense for the
Fiscal Quarters ended June 30, 2014, September 30, 2014 and December 31, 2014, shall be deemed to be $13,053,125.
“Borrower Interest Expense” means, for any period, total interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Borrower with respect to all outstanding Indebtedness of Borrower, including all commissions,
discounts and other fees and charges owed with respect to letters of credit and net costs under Interest Rate Agreements, but excluding, however,
any amount not payable in Cash.
“Borrower Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of
Borrower (or, if higher, the par value or stated face amount of all such Indebtedness (other than zero coupon Indebtedness)) determined in
accordance with GAAP, for the avoidance of doubt excluding Non-Recourse Project Indebtedness and the face amount of any undrawn Letter of
Credit issued for the account of Borrower.
“Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of
New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close
and (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate
Loans, the term “Business Day” means any day which is a Business Day described in clause (i) and which is also a day for trading by and
between banks in Dollar deposits in the London interbank market.
“CAFD” means, on a consolidated basis in accordance with GAAP, net cash provided by (used in) operating activities of Holdings,
adjusted as follows (without duplication of any increase, decrease, exclusion or other amount): (i) plus or minus changes in assets and
6
liabilities as reflected (or to be reflected) on Holdings’ statement of cash flows, (ii) minus deposits into (or plus withdrawals from) restricted cash
accounts required by project financing arrangements to the extent they decrease (or increase) cash provided by operating activities, (iii) minus
cash distributions paid to non-controlling interests in Holdings’ projects, if any, (iv) minus scheduled project-level and other debt service
payments and repayments in accordance with the related borrowing arrangements, to the extent they are paid from operating cash flows during a
period, (v) minus non-expansionary capital expenditures, if any, to the extent they are paid from operating cash flows during a period, (vi) plus
cash contributions to the Borrower from SunEdison pursuant to the Interest Payment Agreement, (vii) plus operating costs and expenses paid by
SunEdison pursuant to the Management Services Agreement to the extent such costs or expenses exceed the fee payable by Holdings pursuant to
such agreement but otherwise reduce Holdings’ net cash provided by operating activities and (viii) plus or minus any other operating items as
necessary to present the cash flows Holdings deems representative of its core business operations, with the approval of the audit committee of
Holdings; provided that any CAFD attributable to the operations of Unrestricted Subsidiaries will only be included in the foregoing calculation to
the extent of any cash dividends or other cash distributions received by Holdings or any of its Restricted Subsidiaries during the period for which
CAFD is being calculated (or, without duplication, subsequent to such period but on or prior to the applicable date of determination).
Notwithstanding the foregoing, CAFD (w) for the Fiscal Quarter ended June 30, 2014 shall be deemed to be $53.0 million, (x) for the Fiscal Quarter
ended September 30, 2014 shall be deemed to be $58.5 million, (y) for the Fiscal Quarter ended December 31, 2014 shall be deemed to be $35.7
million and (z) for each of the Fiscal Quarters ending March 31, 2015 and June 30, 2015, will be deemed to be CAFD for such Fiscal Quarter as
determined in accordance with this definition plus $2.0 million.
“CFADS” means, for the applicable period, the sum of CAFD and Fixed Charges.
“Canadian GAAP” means Canadian generally accepted accounting principles in effect as of the date of determination thereof.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.
“Cash” means money, currency or a credit balance in any demand or Deposit Account.
“Cash Collateralize” means, in respect of an Obligation, to provide and pledge (as a first priority perfected security interest) cash
collateral in Dollars, at a location and pursuant to documentation in form and substance satisfactory to Administrative Agent and the applicable
Issuing Bank (and “Cash Collateralization” has a corresponding meaning). “Cash Collateral” shall have a meaning correlative to the foregoing
and shall include the proceeds of such cash collateral and other credit support. At the request of the applicable Issuing Bank, if any Letter of
Credit issued by such Issuing Bank to be Cash Collateralized hereunder is denominated in an Alternative Currency, Borrower shall post such Cash
Collateral in the same Alternative Currency as the Letter of Credit to be Cash Collateralized.
7
“Cash Equivalents” means, as at any date of determination, any of the following: (i) marketable securities (a) issued or directly and
unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no more than three months from the date of creation thereof and
having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of deposit or bankers’
acceptances maturing within three months after such date and issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the
regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000;
(v) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to
in clauses (i) and (ii) above, (b) has net assets of not less than $5,000,000,000, and (c) has the highest rating obtainable from either S&P or
Moody’s; and (vi) solely with respect to Non-Recourse Subsidiaries, other short-term investments utilized by Foreign Subsidiaries in accordance
with normal investment practices for cash management in investments of a type analogous to the foregoing.
“Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit E.
“Change of Control” means (i) any Person or “group” (within the meaning of Rules 13d 3 and 13d 5 under the Exchange Act) other
than SunEdison or a wholly-owned Subsidiary of SunEdison shall have acquired Control of Parent; (ii) Parent shall cease to Control Holdings; or
(iii) Holdings shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Equity Interests
of Borrower.
“Change of Control Restrictions” means, with respect to a Person, Contractual Obligations or applicable law which would prohibit,
result in a termination of (or give rise to a right of any party to terminate) any Contractual Obligations or default or acceleration of any
indebtedness of such Person (or an Affiliate of such Person) or imposition of any restriction on the ability of such Person to make distributions or
pay dividends to its equity holders, or otherwise result in material adverse consequences to such Person upon, the change in the direct or indirect
ownership or control of the Project Holdco that owns such Person without the consent of the counterparties to such Contractual Obligations or
any other Person (other than any Governmental Authority).
“Citigroup” as defined in the preamble hereto.
“Clean Energy System” means a solar, wind, biomass, natural gas, hydroelectric, geothermal, renewable energy (including battery
storage), conventional power, electric transmission and distribution or water installation projects (or a hybrid energy generating installation that
utilizes a combination of any of the foregoing), in each case whether commercial or residential in nature.
8
“Closing Date” means January 28, 2015.
“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit F-1.
“Closing Date Material Adverse Effect” means any change, development, event, effect or occurrence (“Effect”) that, individually or in
the aggregate, (x) is or would reasonably be expected to be materially adverse to the business, Properties, results of operations or financial
condition of the Company Entities, taken as a whole, or (y) would reasonably be expected to result in a materially adverse effect on the Company’s
ability to perform its obligations under the Acquisition Agreement or consummate the transactions contemplated thereby; provided, however, that
any Effect attributable to (a) any changes affecting the solar or wind power industry generally, (b) any adoption, implementation, promulgation,
repeal, modification, reinterpretation or proposal of any Order, protocol, government program, industry standard or change of Applicable Law of or
by any Governmental Authority, (c) any change in wholesale or retail electric power prices, (d) any change in general regulatory or political
conditions, including any engagement of hostilities, act of war or terrorist activity or any change imposed by a Governmental Authority associated
with national security or any natural disasters, (e) any change in GAAP, (f) the announcement, pendency or consummation of the transactions
contemplated by the Acquisition Agreement or the Ancillary Agreements, (g) any action taken by the Company or the Sellers that is required
pursuant to the Acquisition Agreement, (h) any action taken (or omitted to be taken) at the specific request of Buyers, (i) any failure by the
Company Entities to meet any projections or forecasts for any period occurring on or after the date hereof (but, for the avoidance of doubt, not the
underlying cause of any such failure) or (j) any change or development in any financial, banking or securities market (including any increased
interest rates or other costs for, or reduction in the availability of, financing or suspension of trading in, or limitation on prices for, securities on a
securities market (including an over-the-counter market), exchange or trading platform) or the economy in general, shall, in each case, be excluded
from such determination, except in the event the Effect of such changes or events attributable to the foregoing subclauses (a), (b), (d), (e) or
(j) would reasonably be expected to have a disproportionate impact on the Company Entities, taken as a whole, relative to other solar or wind
development companies operating in the markets in which the Company Entities operate (but only to the extent of the incremental disproportionate
impact on the Company Entities, relative to other solar or wind development companies in the markets in which the Company Entities operate). All
capitalized terms (other than the term “Acquisition Agreement”) used but not defined in this definition of “Closing Date Material Adverse Effect”
have the meanings given to them in the Acquisition Agreement.
“Closing Date Project Holdco” as defined in the definition of “Permitted M&A Transaction.”
“CMP Option Agreement” means the Contrato de Opción Irrevocable de Compra de Acciones Relativo a la Sociedad “Amanecer Solar
SpA,” dated as of January 28, 2013, between Amanecer Solar Holdings SPA and Compañia Minera del Pacifico S.A. as in effect on the date hereof.
9
“Collateral” means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported
to be granted pursuant to the Collateral Documents as security for the Obligations.
“Collateral Agent” as defined in the preamble hereto.
“Collateral Documents” means the Pledge and Security Agreement, the Mortgages (if any), the Intellectual Property Security
Agreements (if any), and all other instruments, documents and agreements delivered by or on behalf of any Credit Party pursuant to this
Agreement or any of the other Credit Documents in order to grant to, or perfect in favor of, Collateral Agent, for the benefit of Secured Parties, a
Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.
“Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that provides information with respect to the
personal or mixed property of each Credit Party.
“Commitment” means any Revolving Commitment.
“Commitment Letter” as defined in Section 10.20.
“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.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties
is bound or to which it or any of its properties is subject.
“Contributing Guarantors” as defined in Section 7.2.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.
“Controlled Foreign Corporation” means “controlled foreign corporation” as defined in Section 957 of the Internal Revenue Code;
provided however, for the avoidance of doubt, none of Borrower, the Persons that are Guarantors as of the Closing Date or any Project Holdco
shall be a Controlled Foreign Corporation.
10
“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the
applicable Conversion/Continuation Notice.
“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.
“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit G delivered by a Credit Party pursuant
to Section 5.10.
“Credit Date” means the date of a Credit Extension.
“Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents, any documents or certificates executed
by Borrower in favor of any Issuing Bank relating to Letters of Credit, and all other documents, certificates, instruments or agreements executed
and delivered by or on behalf of a Credit Party for the benefit of any Agent, any Issuing Bank or any Lender in connection herewith on or after the
date hereof.
“Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.
“Credit Party” means each Person (other than any Agent, any Issuing Bank or any Lender or any other representative thereof) from
time to time party to a Credit Document. Notwithstanding anything in the Credit Documents to the contrary, no Non-Recourse Subsidiary shall be
a Credit Party.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic
cap or other similar agreement or arrangement.
“Debt Service Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) (a) the aggregate amount of CFADS to
(ii) Borrower Debt Service Expense, in each case for the four-Fiscal Quarter period ending on such date, provided, however, that the Debt Service
Coverage Ratio for any Fiscal Quarter in which Holdings or any of its Subsidiaries has acquired, directly or indirectly, any Equity Interests in any
Person or any property with a value in excess of $2,000,000 at any time after the first day of such Fiscal Quarter shall be calculated by giving pro
forma effect to such acquisition as if such acquisition had occurred on the first day of such Fiscal Quarter, and by deeming historical financial
performance of such Person or property for such Fiscal Quarter and each Fiscal Quarter prior thereto to be equal to the projected financial
performance for the corresponding Fiscal Quarter in the following calendar year (as determined in the good faith reasonable judgment of
Borrower).
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other
applicable jurisdictions from time to time in effect.
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
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“Defaulting Lender” means subject to Section 2.22(b), any Lender (a) that has failed to (i) fund all or any portion of its Loans within
two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower
in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions
precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to
Administrative Agent, any Issuing Bank, Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including
in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) that has notified
Borrower, Administrative Agent, any Issuing Bank or Swing Line Lender 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 the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied),
(c) that has failed, within three Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative
Agent and Borrower 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), or (d) for which
Administrative Agent has received notification that such Lender is, or has a direct or indirect parent company that is, (i) insolvent, or is generally
unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment
for the benefit of its creditors or (ii) the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee,
conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or
its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or
appointment; 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 or instrumentality) to reject, repudiate, disavow or disaffirm any
contracts or agreements made with such Lender.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or
like organization, other than an account evidenced by a negotiable certificate of deposit.
“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests
into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily
redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), pursuant to a sinking fund obligation or
otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified Equity
Interests), in whole or in part, (iii) contractually provides for the scheduled payments or
12
dividends in cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute
Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Latest Maturity Date, except, in the case of clauses (i) and (ii),
if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or
asset sale event are subject to the prior payment in full of all Obligations, the cancellation or expiration of all Letters of Credit and the termination
of the Commitments).
“Documentation Agents” as defined in the preamble hereto.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to
any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the applicable Issuing Bank at
such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.
“Dollars” and the sign “$” mean the lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the
District of Columbia.
“Earn Out Indebtedness” has the meaning given to it in the definition of the term “Indebtedness”.
“Eligible Assignee” means any Person other than a natural Person that is (i) a Lender, an Affiliate of any Lender or a Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), or (ii) a commercial bank, insurance company,
investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends
credit or buys loans in the ordinary course of business; provided, no Defaulting Lender, Credit Party or Affiliate of a Credit Party shall be an
Eligible Assignee.
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored,
maintained or contributed to by, or required to be contributed by, Borrower, any of the Guarantors or (solely with respect to an employee benefit
plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA or is otherwise subject to Section 412 of the Internal Revenue Code or
Section 302 of ERISA) any of their respective ERISA Affiliates.
“Environmental Claim” means any investigation, written notice, request for information, notice of potential liability, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other order or directive by any Governmental Authority or any other Person,
arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with the presence, Release
or threatened Release of Hazardous Materials; or (iii) in connection with any actual or alleged damage, injury, threat or harm to human health or
safety, natural resources or the environment.
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“Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them),
statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other requirements of Governmental Authorities
relating to (i) the protection of the environment; (ii) the generation, use, storage, transportation, disposal or Release of Hazardous Materials;
(iii) occupational health and safety and industrial hygiene; or (iv) the protection of human, plant or animal health or natural resources, in any
manner applicable to Holdings or any of its Subsidiaries or any Facility.
“Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership
interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing; provided that no
Permitted Exchangeable Bond Indebtedness or Permitted Convertible Bond Indebtedness shall constitute an Equity Interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within
the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not
incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal
Revenue Code of which that Person is a member; and (iii) solely for purposes of Sections 302 and 303 of ERISA and Sections 412 and 430 of the
Internal Revenue Code, any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of
which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former
ERISA Affiliate of Borrower or any of the Guarantors shall continue to be considered an ERISA Affiliate of Borrower or any such Guarantor within
the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Borrower or such Guarantor and with respect to
liabilities arising after such period for which Borrower or such Guarantor could be liable under the Internal Revenue Code or ERISA.
“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure
to meet the minimum funding standard of Sections 412 or 430 of the Internal Revenue Code or Sections 302 or 303 of ERISA with respect to any
Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a
required installment under Section 430(j) of the Internal Revenue Code or Section 303(j) of ERISA with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2)
of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Borrower, any of the Guarantors or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan
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resulting in liability to Borrower, any of the Guarantors or any of their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on
Borrower, any of the Guarantors or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of Borrower, any of the Guarantors or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefore, or the receipt by Borrower, any of the Guarantors or any of their respective ERISA Affiliates of notice from any Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under
Section 4041A or 4042 of ERISA; (viii) the receipt by the Borrower, any of the Guarantors or any of their respective ERISA Affiliates of notice from
any Multiemployer Plan that such Multiemployer Plan is in “endangered” or “critical” status (within the meaning of Section 432 of the Internal
Revenue Code or Section 305 of ERISA), (ix) the occurrence of an act or omission which could give rise to the imposition on Borrower, any of the
Guarantors or (solely with respect to taxes imposed under Section 4971 of the Internal Revenue Code) any of their respective ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or
Section 4971 of ERISA in respect of any Employee Benefit Plan; (x) the assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Borrower, any of the Guarantors or any of their
respective ERISA Affiliates in connection with any Employee Benefit Plan; (xi) receipt from the Internal Revenue Service of notice of the failure of
any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code; (xii) a determination that any Pension Plan is, or is expected to be in “at-risk” status (as defined
in Section 303(i) of ERISA or Section 430(i) of the Internal Revenue Code), or (xiii) the imposition of a Lien pursuant to Section 430(k) of the
Internal Revenue Code or Section 4068 of ERISA upon the property and rights to property belonging to the Borrower, any of the Guarantors or
any of their respective ERISA Affiliates.
“Eurodollar Rate” means for any Interest Period as to any Eurodollar Rate Loan, (i) the rate per annum determined by the
Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate
administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page) (the “LIBO Rate”) for deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m.
(London, England time), two Business Days prior to the commencement of such Interest Period, (ii) in the event the rate referenced in the
preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the
Administrative Agent to be the offered rate on such other page or other service which displays the LIBO Rate for deposits (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England
time) two Business Days prior to the commencement of such Interest Period
15
or (iii) in the event the rates referenced in the preceding clauses (i) and (ii) are not available, the rate per annum determined by the Administrative
Agent to be the average offered quotation rate by major banks in the London interbank market to Barclays for deposits (for delivery on the first
day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the Eurodollar Rate Loan for which the
Eurodollar Rate is then being determined with maturities comparable to such Interest Period as of approximately 11:00 a.m. (London, England time)
two Business Days prior to the commencement of such Interest Period; provided that if LIBO Rates are quoted under either of the preceding
clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the LIBO Rate shall be equal to the Interpolated Rate; and provided,
further, that if any such rate determined pursuant to the preceding clauses (i), (ii) or (iii) is below zero, the Eurodollar Rate will be deemed to be
zero.
“Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate.
“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage in effect on such day,
whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors for determining the maximum
reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding
(currently referred to as “Eurocurrency liabilities” in Regulation D). The Adjusted Eurodollar Rate for each outstanding Eurodollar Rate Loan shall
be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
“Event of Default” means each of the conditions or events set forth in Section 8.1.
“EWG Status” as defined in Section 4.26(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Excluded Hedge Obligation” means, with respect to any Guarantor, (x) as it relates to all or a portion of the Guaranty of such
Guarantor, any Swap Obligation if, and to the extent that, 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 Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the
Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor becomes effective with respect to such Swap
Obligation or (y) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that,
such Swap Obligation (or such security interest in respect 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 Guarantor’s
failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at
the time the security interest of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap
16
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 Guaranty or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Beneficiary or required to be withheld or deducted
from a payment to a Beneficiary, (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 Beneficiary 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 Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the
Commitment (other than pursuant to an assignment request by the Borrower under Section 2.23) or (ii) such Lender changes its lending office,
except in each case to the extent that, pursuant to Section 2.20, 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 Beneficiary’s failure to comply with Section 2.20(c), and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” means that certain Credit and Guaranty Agreement, dated as of July 23, 2014, by and among Borrower,
Holdings, certain subsidiaries of Borrower, Goldman Sachs, as administrative agent and lenders and other Persons party thereto, as amended prior
to the Closing Date.
“Existing Indebtedness” means (a) all Indebtedness and other obligations outstanding under (i) the Existing Credit Agreement, (ii) the
indenture relating to the 10.25% Senior Notes due 2018 issued by First Wind Capital, LLC, (iii) the $291 million term loan B facility of the Edward
joint venture of the Acquired Business, (iv) the Secured Promissory Note dated as of November 21, 2011, between Hawaiian Island Holdings, LLC,
as the borrower, and KeyBank National Association, as the lender, as amended by that certain Amendment No. 1 to Secured Promissory Note
dated as of November 19, 2012, as further amended by that certain Amendment No. 2 to Secured Promissory Note dated as of December 14, 2012,
as further amended by that certain Amendment No. 3 to Secured Promissory Note dated as of January 15, 2013 and as further amended by that
certain Amendment No. 4 to Secured Promissory Note dated as of March 10, 2014, (v) the Amended and Restated Reimbursement Agreement,
dated as of July 25, 2013, among First Wind Utah Holdings, LLC, First Wind Utah Portfolio, LLC, First Wind Holdings, LLC, First Wind Capital,
LLC, First Wind Portfolio, LLC, financial institutions party thereto, BNP Paribas, as Collateral Agent, Administrative Agent and as fronting bank,
and other entities party thereto, and (b) all Indebtedness and other obligations (other than such Indebtedness in an aggregate principal amount
not to exceed $25 million) under the credit agreements, promissory notes and other credit documents set forth on Schedule 3.1(f) hereto.
“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by Holdings or any of its Subsidiaries or any of their respective predecessors.
17
“Fair Share” as defined in Section 7.2.
“Fair Share Contribution Amount” as defined in Section 7.2.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the date hereof (or any amended or successor
version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated
thereunder or official interpretations thereof, any agreements entered into pursuant to the foregoing, and any intergovernmental agreements
entered into by the United States that implement or modify the foregoing (together with the portions of any law, regulations, rules or practices
implementing such intergovernmental agreements).
“FCPA” as defined in Section 4.25.
“Federal Energy Regulatory Authorizations, Exemptions, and Waivers” as defined in Section 4.26(d).
“Federal Funds Effective Rate” means for any day, the rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the Federal Funds
Effective 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 (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall
be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.
“FERC’s” as defined in Section 4.26(a).
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the
certification of the chief financial officer of Holdings that such financial statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments.
“Financial Plan” as defined in Section 5.1(i).
“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that
such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.
18
“Fixed Charges” means with respect to the Parent and its Restricted Subsidiaries for any period, without duplication, the sum of:
(1) consolidated interest expense of the Parent and its Restricted Subsidiaries (other than Non-Recourse Subsidiaries) for such period
(including, with respect to the Parent and its Restricted Subsidiaries, (a) amortization of original issue discount resulting from the issuance of
Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit, bank
guarantees or bankers acceptances, (c) the interest component of Capitalized Lease Obligations, and (d) net payments, if any made (less net
payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (q) annual agency
fees paid to the administrative agents and collateral agents under any credit facilities, (r) costs associated with obtaining Hedging
Obligations and breakage costs in respect of Hedging Obligations related to interest rates, (s) penalties and interest relating to taxes,
(t) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees and expenses
and discounted liabilities, (u) any expensing of bridge, commitment and other financing fees and any other fees related to any acquisitions,
(v) commissions, discounts, yield and other fees and charges (including any interest expense) related to any securitization facility, (w) any
accretion of accrued interest on discounted liabilities and any prepayment premium or penalty, (x) any interest expense attributable to
obligations of the Parent and its Restricted Subsidiaries that are classified as “capital lease obligations” under GAAP due to the
consolidation of variable interest entities and (y) any “additional interest” or “liquidated damages” with respect to other securities for failure
to timely comply with registration rights obligations; plus
(2) dividends on any Disqualified Stock (other than Disqualified Stock of Non-Recourse Subsidiaries) of the Parent, or on any Preferred
Equity of any Restricted Subsidiary (other than Non-Recourse Subsidiaries) incurred in accordance with Section 5.11 of the Credit
Agreement plus
(3) consolidated capitalized interest of the Parent and its Restricted Subsidiaries (other than Non-Recourse Subsidiaries) for such
period, whether paid or accrued.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined
by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
Notwithstanding the foregoing, Fixed Charges for any Fiscal Quarter ending prior to March 31, 2015 shall be deemed to be $13,053,125.
Capitalized terms used in this definition shall be used as defined in the Senior Notes Indenture as in effect on the Closing Date.
“Flood Certificate” means a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and any
successor Governmental Authority performing a similar function.
“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of Secured
Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
19
“Flood Program” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance
Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of
2004, in each case as amended from time to time, and any successor statutes.
“Flood Zone” means areas having special flood hazards as described in the National Flood Insurance Act of 1968, as amended from
time to time, and any successor statute.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (i) with respect to Issuing Bank, such Defaulting Lender’s Pro
Rata Share of the outstanding Obligations with respect to Letters of Credit issued by such Issuing Bank other than such Obligations as to which
such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof
and (ii) with respect to Swing Line Lender, such Defaulting Lender’s Pro Rata Share of the outstanding Obligations with respect to Swing Line
Loans issued by Swing Line Lender other than such Obligations as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“FPA” as defined in Section 4.26(c).
“FUCO” as defined in Section 4.26(b).
“Funding Guarantors” as defined in Section 7.2.
“Funding Notice” means a notice substantially in the form of Exhibit A-1.
“GAAP” means United States generally accepted accounting principles in effect as of the date of determination thereof.
“Goldman Sachs” as defined in the preamble hereto.
“Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government
or Governmental Authority.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission,
board, bureau, court, agency or instrumentality or political subdivision thereof, any supra-national body (such as the European Union or the
European Central Bank) or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity,
supra-national body or government.
“Governmental Authorization” means any permit, license, tariff, authorization, plan, directive, consent order or consent decree of or
from any Governmental Authority.
20
“Grantor” as defined in the Pledge and Security Agreement.
“Guaranteed Obligations” as defined in Section 7.1.
“Guarantor” means Holdings and each Domestic Subsidiary of Holdings (other than Borrower and any Non-Recourse Subsidiary).
“Guarantor Subsidiary” means each Guarantor other than Holdings.
“Guaranty” means the guaranty of each Guarantor set forth in Section 7.
“Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority or which is reasonably likely to pose a hazard to the health and safety of the owners, occupants or any Persons in the
vicinity of any Facility or to the indoor or outdoor environment.
“Hedge Agreement” means an Interest Rate Agreement, a Currency Agreement, or a REC Hedge, in each case entered into by a Credit
Party with a Lender Counterparty.
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for,
charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable
laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
“Historical Financial Statements” means the financial statements described in Schedule 4.7.
“Holdings” as defined in the preamble hereto.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the
relevant financial statements in effect as of the date of determination thereof.
“Immaterial Entity” means, as of any date, any Subsidiary (other than a Credit Party) at any time designated by Borrower as an
“Immaterial Entity”; provided that the aggregate CFADS distributed or otherwise paid to Borrower or Holdings by all Immaterial Entities for the
previous four Fiscal Quarters (or, if shorter, the period commencing on the latest date any such Subsidiary is acquired by a Subsidiary of Holdings
and ending on the date of determination) shall not exceed 15.0% of the CFADS distributed or otherwise paid to Borrower and Holdings in the
aggregate for such period.
“Immaterial Subsidiary” means, as of any date, any Subsidiary (other than a Credit Party) at any time designated by Borrower as an
“Immaterial Subsidiary”; provided that (a) the aggregate CFADS distributed or otherwise paid to Borrower or Holdings by any individual
Immaterial Subsidiary for the previous four Fiscal Quarters (or, if shorter, the period commencing on the date such Subsidiary is acquired by a
Subsidiary of Holdings and ending on the date of determination) shall not exceed 5.0% of the CFADS distributed or otherwise paid to
21
Borrower and Holdings in the aggregate for such period and (b) the aggregate CFADS distributed or otherwise paid to Borrower or Holdings by all
Immaterial Subsidiaries for the previous four Fiscal Quarters (or, if shorter, the period commencing on the latest date any such Subsidiary is
acquired by a Subsidiary of Holdings and ending on the date of determination) shall not exceed 20.0% of the CFADS distributed or otherwise paid
to Borrower and Holdings in the aggregate for such period.
“Increased Amount Date” as defined in Section 2.24.
“Increased-Cost Lender” as defined in Section 2.23.
“Indebtedness” means, as applied to any Person, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of
obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable
and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all
or any part of the deferred purchase price of property or services (excluding (A) any such obligations incurred under ERISA, (B) any earn-out
obligations consisting of the deferred purchase price of property acquired until such obligation becomes a liability on the balance sheet of such
person in accordance with GAAP (“Earn Out Indebtedness”) and (C) accounts payable in the ordinary course of business and not more than 120
days overdue), which purchase price is (a) due more than six months from the date of incurrence of the obligation in respect thereof or
(b) evidenced by a note or similar written instrument; (v) all indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that
Person; (vi) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings (but excluding letters of credit for the account of any Persons other than Credit Parties which are cash collateralized or
with respect to which back-to-back letters of credit have been issued); (vii) Disqualified Equity Interests; (viii) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another; (ix) any obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied
with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (x) any liability of such Person for an obligation of
another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the
case of any agreement described under subclauses (a) or (b) of this clause (x), the primary purpose or intent thereof is as described in clause
(ix) above; (xi) any obligations with respect to tax equity or similar financing arrangements (other than any such obligations of Non-Recourse
Subsidiaries); and (xii) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including under
any Hedge Agreement, whether entered into for hedging or speculative purposes or otherwise; provided, in no event shall obligations under any
Hedge Agreement be deemed “Indebtedness” for any purpose under Section 6.7 unless such obligations
22
relate to a derivatives transaction which has been terminated (or to the extent amounts under such Hedge Agreement are otherwise due and
owing); provided further, that Permitted Equity Commitments, Permitted Project Undertakings, Permitted Deferred Acquisition Obligations,
Permitted Call Transactions and Project Obligations shall not constitute Indebtedness. Notwithstanding the foregoing, the amount of any
Permitted Convertible Bond Indebtedness Shareholder Loan shall not be included in the calculation of outstanding Indebtedness to the extent
duplicative of the amount of guarantees of any Permitted Convertible Bond Indebtedness of Parent or Permitted Exchangeable Bond Indebtedness
of Borrower or Holdings.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages),
penalties, claims (including Environmental Claims), actions, judgments, suits, costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Release or
threatened Release of Hazardous Materials), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and
disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding or hearing commenced or
threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or
expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect, special or consequential and whether based on any federal,
state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental
Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated hereby or
thereby (including the Lenders’ agreement to make Credit Extensions, the syndication of the credit facilities provided for herein or the use or
intended use of the proceeds thereof, any amendments, waivers or consents with respect to any provision of this Agreement or any of the other
Credit Documents, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranty)); (ii) the commitment letter (and any related fee or engagement letter) delivered by any Agent or any
Lender to Borrower with respect to the transactions contemplated by this Agreement; or (iii) any Environmental Claim or the Release or threatened
Release of Hazardous Materials relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice
of Holdings or any of its Subsidiaries. Notwithstanding any other provision of this Agreement, but without limiting the Credit Parties’ obligations
in the case of liabilities of Indemnitees to third parties and related losses, claims, damages and out-of-pocket expenses, the Credit Parties shall not
be liable to any Indemnitee for any indirect, consequential, special or punitive damages in connection with this Agreement or the transactions
contemplated hereby.
“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 Beneficiary under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” as defined in Section 10.3(a).
“Intellectual Property” as defined in the Pledge and Security Agreement.
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“Intellectual Property Asset” means, at the time of determination, any interest (fee, license or otherwise) then owned by any Credit
Party in any Intellectual Property.
“Intellectual Property Security Agreements” has the meaning assigned to that term in the Pledge and Security Agreement.
“Intercompany Agreement” means that certain Intercompany Agreement, dated November 17, 2014, by and among Holdings,
SunEdison and SunEdison Holdings Corporation (as may be amended, supplemented or otherwise modified from time to time).
“Intercompany Note” means a promissory note substantially in the form of Exhibit K evidencing Indebtedness owed among Credit
Parties and their Subsidiaries.
“Interest Payment Agreement” means that certain Interest Payment Agreement dated as of July 23, 2014, by and among the Borrower,
Holdings, SunEdison and SunEdison Holdings Corporation (as may be amended, supplemented or otherwise modified from time to time).
“Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, the last Business Day of March, June,
September and December of each year, commencing on the first such date to occur after the Closing Date and the final maturity date of such Loan;
and (ii) any Loan that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided, in the case of each Interest
Period of longer than three months “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after
the commencement of such Interest Period.
“Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of one, two, three or six-months, as selected by
Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest
Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the
immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clauses (c) and (d) of this definition,
end on the last Business Day of a calendar month; and (c) no Interest Period with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Commitment Termination Date.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first
day of such Interest Period.
24
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter.
“Interpolated Rate” means, in relation to the LIBO Rate, the rate which results from interpolating on a linear basis between:
(a) the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of that
Loan; and
(b) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period of that
Loan,
each as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period of
that Loan.
“Investment” means (i) any direct or indirect purchase or other acquisition by Holdings or any of its Subsidiaries of, or of a beneficial
interest in, any of the Securities of any other Person (other than a Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement, purchase
or other acquisition for value, by any Subsidiary of Holdings from any Person (other than Borrower or any Guarantor), of any Equity Interests of
such Person; (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business) or capital contributions by Holdings or any of its Subsidiaries to any other
Person (other than Borrower or any Guarantor), including all indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course of business and (iv) all investments consisting of any exchange
traded or over the counter derivative transaction, including any Interest Rate Agreement and Currency Agreement, whether entered into for
hedging or speculative purposes or otherwise. The amount of any Investment of the type described in clauses (i), (ii) and (iii) shall be the original
cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment, but deducting therefrom the amount of any repayments or distributions received on
account of such Investment by, or the return on or of capital with respect to, such Investment to, the Person making such Investment. For the
avoidance of doubt, neither any Permitted Project Undertakings nor any payment pursuant to and in accordance with the terms of Project
Obligations shall be deemed to constitute an Investment. Notwithstanding the foregoing, the satisfaction by Parent, Borrower or Holdings of any
obligation in connection with Permitted Convertible Bond Indebtedness or Permitted Exchangeable Bond Indebtedness (including in each case, for
the avoidance of doubt, any guaranty thereof) shall not constitute an Investment. For the further avoidance of doubt, the purchase and
consummation of any Permitted Call Transaction shall not constitute an Investment.
“Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.
“Issuing Bank” means each of Barclays, BofA, Citigroup and KeyBank, each as an Issuing Bank hereunder, together with each of
their permitted successors and assigns in such capacity, including any other Lender or Affiliate of any other Lender that agrees to be an Issuing
Bank, reasonably acceptable to Administrative Agent and Borrower, in such capacity.
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“Joinder Agreement” means an agreement substantially in the form of Exhibit L.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form;
provided, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
“Judgment Currency” as defined in Section 10.24.
“KeyBank” as defined in the preamble hereto.
“Landlord Consent and Estoppel” means, with respect to any Leasehold Property, a letter, certificate or other instrument in writing from
the lessor under the related lease, pursuant to which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold
Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance acceptable to Collateral Agent in its
reasonable discretion, but in any event sufficient for Collateral Agent to obtain a Title Policy with respect to such Mortgage.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or
Commitment hereunder at such time, in each case as extended in accordance with this Agreement from time to time.
“Leasehold Property” means any leasehold interest of any Credit Party as lessee under any lease of real property.
“Lender” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party
hereto pursuant to an Assignment Agreement or a Joinder Agreement.
“Lender Counterparty” means each Lender, each Agent and each of their respective Affiliates counterparty to a Hedge Agreement
(including any Person who is an Agent or a Lender (and any Affiliate thereof) as of the Closing Date but subsequently, whether before or after
entering into a Hedge Agreement, ceases to be an Agent or a Lender, as the case may be); provided, at the time of entering into a Hedge
Agreement, no Lender Counterparty shall be a Defaulting Lender.
“Letter of Credit” means a commercial or standby letter of credit issued or to be issued by any Issuing Bank pursuant to this
Agreement and, effective upon consummation of the Acquisition, each letter of credit set forth on Schedule 1.1.
“Letter of Credit Expiration Date” means the day that is 180 days after the Revolving Commitment Termination Date then in effect (or,
if such day is not a Business Day, the next preceding Business Day); provided that if any Letter of Credit remains outstanding on the day which is
ten Business Days prior to the Revolving Commitment Termination Date, Borrower shall either provide Cash Collateral or backstop letters of credit
satisfactory to Issuing Bank that issued such Letter of Credit in an amount equal to the Minimum Collateral Amount.
26
“Letter of Credit Sublimit” means the lesser of (i) $200,000,000 and (ii) the aggregate unused amount of the Revolving Commitments
then in effect.
“Letter of Credit Usage” means, as at any date of determination, the sum of (i) the Dollar Equivalent of the maximum aggregate amount
which is, or at any time thereafter may become, available for drawing under all Letters of Credit then outstanding, and (ii) the Dollar Equivalent of
the aggregate amount of all drawings under Letters of Credit honored by any Issuing Bank and not theretofore reimbursed by or on behalf of
Borrower (including through Revolving Loans).
“Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Borrower Total Debt as of such day to (ii) the aggregate
amount of CFADS for the four-Fiscal Quarter period ending on such date, provided, however, that the Leverage Ratio for any Fiscal Quarter in
which Holdings or any of its Subsidiaries has acquired, directly or indirectly, any Equity Interests in any Person or any property with a value in
excess of $2,000,000 at any time after the first day of such Fiscal Quarter shall be calculated by giving pro forma effect to such acquisition as if
such acquisition had occurred on the first day of such Fiscal Quarter, and by deeming historical financial performance of such Person or property
for such Fiscal Quarter and each Fiscal Quarter prior thereto to be equal to the projected financial performance for the corresponding Fiscal Quarter
in the following calendar year (as determined in the good faith reasonable judgment of Borrower).
“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any
agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and
any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (ii) in the case of Securities, any purchase
option, call or similar right of a third party with respect to such Securities.
“Loan” means a Revolving Loan and a Swing Line Loan.
“M&A Transaction” means any acquisition, directly or indirectly, by a Project Holdco, whether by purchase, merger or otherwise, of
all or substantially all of the assets of, all or a portion of the Equity Interests of, or a business line or unit or a division of, any Person.
“Macquarie” as defined in the preamble hereto.
“Management Services Agreement” means that certain Management Services Agreement dated as of July 23, 2014 among Borrower,
Holdings, Parent and SunEdison.
“Margin Stock” as defined in Regulation U.
“Market-Based Rate Authorizations” as defined in Section 4.26(d).
27
“Master Agreement” has the meaning specified in the definition of the term “Swap Contract”.
“Material Adverse Effect” means a material adverse effect on and/or material adverse developments with respect to (i) the business,
operations, properties, assets or condition (financial or otherwise) of Holdings and its Subsidiaries taken as a whole; (ii) the ability of the Credit
Parties (taken as a whole) to fully and timely perform their Obligations; (iii) the legality, validity, binding effect or enforceability against a Credit
Party of a Credit Document to which it is a party; or (iv) the rights, remedies and benefits available to, or conferred upon, any Agent and any
Lender or any Secured Party under any Credit Document.
“Material Contract” means any power purchase agreement, any material definitive credit or loan agreement with respect to NonRecourse Project Indebtedness and any contract or other arrangement, in each case, to which Holdings or any of its Subsidiaries is a party (other
than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material
Adverse Effect.
“Material Real Estate Asset” means (a) any fee-owned Real Estate Asset having a fair market value in excess of $5,000,000 as of the
date of the acquisition thereof and (b) all Leasehold Properties other than those with respect to which the aggregate payments under the term of
the lease are less than $10,000,000 per annum, other than those designated from time to time by Collateral Agent in its sole discretion as not being
required to be included in the Collateral.
“MIHI” as defined in Section 10.20.
“Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of Cash or Deposit Account balances
or back to back letters of credit in form and substance, and from an issuer, satisfactory to the applicable Issuing Bank, an amount equal to 102.5%
of the Fronting Exposure of such Issuing Bank with respect to Letters of Credit issued by such Issuing Bank and outstanding at such time and
(ii) otherwise, an amount determined by Administrative Agent and such Issuing Bank in their sole discretion.
“MLPFS” as defined in the preamble hereto.
“Moody’s” means Moody’s Investors Service, Inc.
“Morgan Stanley” as defined in the preamble hereto.
“Mortgage” means a Mortgage substantially in the form of Exhibit I, as it may be amended, restated, supplemented or otherwise
modified from time to time.
“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.
“Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report
describing the operations of Holdings and its Subsidiaries in the form prepared for presentation to senior management thereof for the applicable
month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such
financial statements relate.
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“Net Equity Proceeds” means an amount equal to any Cash proceeds from the issuance of any Equity Interests of Holdings or any of
its Subsidiaries (other than pursuant to any employee stock or stock option compensation plan), net of underwriting discounts and commissions
and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.
“Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the excess (if any) of all unrealized losses over all
unrealized profits of such Person arising from Hedge Agreements or other Indebtedness of the type described in clause (xii) of the definition
thereof. As used in this definition, “unrealized losses” means the fair market value of the cost to such Person of replacing such Hedge Agreement
or such other Indebtedness as of the date of determination (assuming the Hedge Agreement or such other Indebtedness was to be terminated as
of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Hedge Agreement or such other
Indebtedness as of the date of determination (assuming such Hedge Agreement or such other Indebtedness was to be terminated as of that date).
“New Revolving Loan Commitments” as defined in Section 2.24.
“New Revolving Loan Lender” as defined in Section 2.24.
“New Revolving Loans” as defined in Section 2.24.
“Non-Consenting Lender” as defined in Section 2.23.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Public Information” means material non-public information (within the meaning of United States federal, state or other applicable
securities laws) with respect to Borrower or its Affiliates or their Securities.
“Non-Recourse Project Indebtedness” means Indebtedness of a Non-Recourse Subsidiary owed to an unrelated Person with respect
to which the creditor has no recourse (including by virtue of a Lien, guarantee or otherwise) to Borrower or any other Credit Party other than
recourse (a) in respect of any acquisition or contribution agreement with respect to any Investment permitted hereunder entered into by Borrower
or any other Credit Party, (b) by virtue of rights of such Non-Recourse Subsidiary under a Project Obligation collaterally assigned to such creditor,
which rights may be exercised pursuant to such Project Obligation against Holdings or any other Credit Party that is party to such Project
Obligation or (c) pursuant to Permitted Project Undertakings or Permitted Equity Commitments.
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“Non-Recourse Subsidiary” means:
(a) any Subsidiary of Borrower that (i) (x) is the owner, lessor and/or operator of (or is formed to own, lease or operate) one or more
Clean Energy Systems or conducts activities reasonably related or ancillary thereto, (y) is the lessee or borrower (or is formed to be the lessee or
borrower) in respect of Non-Recourse Project Indebtedness financing one or more Clean Energy Systems, and/or (z) develops or constructs (or is
formed to develop or construct) one or more Clean Energy Systems, (ii) has no Subsidiaries and owns no material assets other than those assets
necessary for the ownership, leasing, development, construction or operation of such Clean Energy Systems or any activities reasonably related or
ancillary thereto and (iii) has no Indebtedness other than intercompany Indebtedness to the extent permitted hereunder and Non-Recourse Project
Indebtedness; and
(b) any Subsidiary that (i) is the direct or indirect owner of all or a portion of the Equity Interests in one or more Persons, each of which
meets the qualifications set forth in clause (a) above, (ii) has no Subsidiaries other than Subsidiaries each of which meets the qualifications set
forth in clause (a) or clause (b)(i) above, (iii) owns no material assets other than those assets necessary for the ownership, leasing, development,
construction or operation of Clean Energy Systems or any activities reasonably related or ancillary thereto, (iv) has no Indebtedness other than
intercompany Indebtedness to the extent permitted hereunder and Non-Recourse Project Indebtedness and (v) is not a direct Subsidiary of
Borrower. For the avoidance of doubt, no Project Holdco shall be deemed a Non-Recourse Subsidiary.
“Non-US Lender” as defined in Section 2.20(c).
“Note” means a Revolving Loan Note or a Swing Line Note.
“Notice” means a Funding Notice, an Issuance Notice or a Conversion/Continuation Notice.
“Obligations” means all obligations of every nature of each Credit Party, including obligations from time to time owed to Agents
(including former Agents), Lenders or any of them and Lender Counterparties, under any Credit Document or Hedge Agreement, whether for
principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on
any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), reimbursement
of amounts drawn under Letters of Credit, settlement payments or payments for early termination of Hedge Agreements, fees, expenses,
indemnification or otherwise; provided, further, that Obligations of any Guarantor shall not include any Excluded Hedge Obligations of such
Guarantor.
“Obligee Guarantor” as defined in Section 7.7.
“Organizational Documents” means (i) with respect to any corporation or company, its certificate, memorandum or articles of
incorporation, organization or association, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate or
declaration of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its
partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its
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operating agreement, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational
Document to be certified by a secretary of state or similar governmental official, the reference to any such Organizational Document shall only be
to a document of a type customarily certified by such governmental official.
“Original Commitment Parties” as defined in Section 10.20.
“Other Connection Taxes” means, with respect to any Beneficiary, Taxes imposed as a result of a present or former connection
between such Beneficiary and the jurisdiction imposing such Tax (other than connections arising from such Beneficiary 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 Credit Document, or sold or assigned an interest in any Commitment or Credit Document).
“Other Taxes” means any and all present or future stamp, court, recording, filing or documentary Taxes or any other excise or property
Taxes, charges or similar levies (and interest, fines, penalties and additions related thereto) arising from any payment made hereunder or from the
execution, delivery, perfection of a security interest under or enforcement of, or otherwise with respect to, this Agreement or any other Credit
Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2.23).
“Parent” means TerraForm Power, Inc., a Delaware corporation.
“Participant Register” as defined in Section 10.6(g)(i).
“PATRIOT Act” as defined in Section 3.1(p).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Sections 412 or 430 of the
Internal Revenue Code or Sections 302 or 303 of ERISA.
“Permitted Call Transaction” means one or more call or capped call option transactions (or substantively equivalent derivative
transactions) on the Parent’s common stock purchased by Holdings or Borrower in connection with an issuance of Permitted Convertible Bond
Indebtedness or Permitted Exchangeable Bond Indebtedness (each, a “Permitted Hedge Transaction”) and, if applicable, one or more call option
or warrant transactions (or substantively equivalent derivative transactions) on the Parent’s common stock sold by Holdings, Borrower or Parent
substantially concurrently with any such purchase (each, a “Permitted Warrant Transaction”).
“Permitted Convertible Bond Indebtedness” means Indebtedness of Parent having a feature which entitles the holder thereof to
exchange all or a portion of such Indebtedness into common stock of Parent (or other securities or property following a merger
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event or other change of the common stock of Parent) and/or cash (in an amount determined by reference to the price of such common stock (or
such other securities or property following a merger event or other change of the common stock of Parent)).
“Permitted Convertible Bond Indebtedness Shareholder Loan” means a loan from Parent to Borrower or Holdings of the proceeds of
Permitted Convertible Bond Indebtedness.
“Permitted Deferred Acquisition Obligation” means an obligation of Holdings, Borrower or any of Borrower’s Subsidiaries to pay the
purchase price for the acquisition of a Person or assets over time or upon the satisfaction of certain conditions; provided that, with respect to each
such acquisition, at the time Holdings or such Subsidiary undertakes such obligations, Borrower shall be in pro forma compliance with each of the
covenants set forth in Section 6.7 (such compliance to be determined on the basis of the financial information most recently delivered to the
Administrative Agent pursuant to Section 5.01(b)).
“Permitted Equity Commitments” means obligations of Holdings, Borrower or any of Borrower’s Subsidiaries to make any payment in
respect of any Equity Interest in any Non-Recourse Subsidiary (and any guarantee by Holdings, Borrower or any of Borrower’s Subsidiaries of
such obligations) as long as each such payment in respect of such Equity Interest constitutes an Investment expressly permitted by Section 6.6.
“Permitted Exchangeable Bond Indebtedness” means Indebtedness having a feature which entitles the holder thereof to exchange all
or a portion of such Indebtedness into common stock of Parent (or other securities or property following a merger event or other change of the
common stock of Parent) and/or cash (in an amount determined by reference to the price of such common stock (or such other securities or
property following a merger event or other change of the common stock of Parent)).
“Permitted Hedge Transaction” has the meaning specified in the definition of the term “Permitted Call Transaction”.
“Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.
“Permitted M&A Transaction” means any M&A Transaction; provided,
(i) immediately prior to entering into and after giving effect to the applicable acquisition agreement governing the related M&A
Transaction, no Event of Default shall have occurred and be continuing or would result therefrom;
(ii) immediately prior to, and after giving effect thereto, the Specified Representations and specified acquisition agreement
representations of a type similar to the “Specified Acquisition Agreement Representations” shall be true and correct in all material respects
on and as of the date of such acquisition to the same extent as though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any
representations and warranties that already are qualified or modified by materiality in the text thereof;
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(iii) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws
and in conformity with all applicable Governmental Authorizations;
(iv) in the case of the acquisition of Equity Interests, all of the Equity Interests (except for any such Securities in the nature of
directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued at the time of such acquisition (which, for the
avoidance of doubt, may be less than 100% of the issued and outstanding Equity Interests of the acquired Person), directly or indirectly, by
such Person or any newly formed Subsidiary of Borrower in connection with such acquisition shall be owned, directly or indirectly, 100% by
Borrower or a Guarantor, and Borrower shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of
Borrower, each of the actions set forth in Sections 5.10 and/or 5.11, as applicable;
(v) Borrower shall be in compliance with the financial covenants set forth in Section 6.7 by giving pro forma effect to such
acquisition as if such acquisition had occurred on the first day of the current Fiscal Quarter, and by deeming historical financial performance
of the acquired Person or property for such Fiscal Quarter and each Fiscal Quarter prior thereto to be equal to the projected financial
performance for the corresponding Fiscal Quarter in the following calendar year (as determined in the good faith reasonable judgment of
Borrower); and
(vi) Borrower shall have delivered to Administrative Agent (A) a certificate of an Authorized Officer of Borrower demonstrating
compliance with the foregoing clauses (i) through (v) and, if applicable, Section 5.10 and Section 5.11, and attaching all of the data required
to be set forth in Schedules 4.1 and 4.2 and the schedules to the Pledge and Security Agreement with respect to all assets and Subsidiaries
acquired in connection with such Permitted M&A Transaction and such certificate shall be deemed to supplement Schedules 4.1 and 4.2 and
the Schedules to the Pledge and Security Agreement for all purposes hereof and thereof, and (B) with respect to any proposed Permitted
M&A Transaction as to which the aggregate total assets (measured in CFADS) to be acquired exceed 15.0% of the aggregate total assets of
Borrower and its Subsidiaries prior to such Permitted M&A Transaction, a favorable written legal opinion as to such regulatory matters as
Administrative Agent may reasonably request in form and substance reasonably satisfactory to Administrative Agent;
provided, that (i) no Permitted M&A Transaction shall be consummated by (a) a Project Holdco (other than any Unrestricted Subsidiary) in
existence on the Closing Date (each such existing Project Holdco, a “Closing Date Project Holdco”) that is, or owns one or more subsidiaries
that is, subject to Change of Control Restrictions as of the time of such Permitted M&A Transaction or (b) any subsidiary of such Closing
Date Project Holdco, in each case, unless after giving pro forma effect to such Permitted M&A Transaction as if such Permitted M&A
Transaction had occurred on the first day of the current Fiscal
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Quarter, and by deeming historical financial performance of the acquired Persons or property for such Fiscal Quarter and each Fiscal Quarter
prior thereto to be equal to the projected financial performance for the corresponding Fiscal Quarter in the following calendar year (as
determined in the good faith reasonable judgment of Borrower), the Closing Date Project Holdco that would own the acquired Persons or
property would account for not more than five percent (5%) of the aggregate CFADS for the previous four Fiscal Quarters and (ii) no
Permitted M&A Transaction in which one or more acquired Persons or property is subject to Change of Control Restrictions shall be
consummated by a Closing Date Project Holdco, or any subsidiaries of such Closing Date Project Holdco, to the extent such Closing Date
Project Holdco is not, and the subsidiaries owned by such Closing Date Project Holdco are not, subject to Change of Control Restrictions
immediately prior to such Permitted M&A Transaction. For the avoidance of doubt, the acquisition of a portfolio of Clean Energy Systems
may be consummated by a single Project Holdco.
“Permitted Project Undertakings” means guaranties by or obligations of Holdings, Borrower or any of Borrower’s Subsidiaries in
respect of Project Obligations or Permitted Deferred Acquisition Obligations.
“Permitted Tax Distributions” means cash dividends or other distributions or loans declared and paid by Borrower to Holdings and,
with respect to any taxable period ending after the date hereof for which Holdings is treated as a pass through entity for U.S. federal income tax
purposes, cash dividends or other distributions declared and paid, or loans made, by Holdings to the members of Holdings, in each case, for the
sole purpose of funding the payments by the members of Holdings of the Taxes owed with respect to their respective allocable shares of the
taxable net income for such period of Holdings and any of its Subsidiaries treated as pass through entities for U.S. federal income tax purposes
(whether owned by Holdings directly or through other pass-through entities), provided that such dividends or other distributions shall not exceed,
in any taxable period, the product of (a) the highest marginal effective combined Tax rates then in effect under the Internal Revenue Code and
under the laws of any state and local taxing jurisdictions in which any member is required to pay income Taxes with respect to Holdings’ and such
Subsidiaries’ combined net income (taking into account the deductibility of state and local taxes in computing federal income taxes) and (b) net
taxable income of Holdings and such Subsidiaries for such taxable period (computed as if they were a single corporation) reduced by any net
losses or credits or other tax attributes of Holdings or any such Subsidiary carried over from prior periods ending on or after the Closing Date, to
the extent not previously taken into account in computing payments under this clause (b).
“Permitted Warrant Transaction” has the meaning specified in the definition of the term “Permitted Call Transaction”.
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies,
limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.
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“Platform” as defined in Section 5.1(o).
“Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by Borrower and each Guarantor
substantially in the form of Exhibit H, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Prepayment Notice” means a notice by the Borrower to prepay Loans, which shall be substantially in the form of Exhibit N or such
other form as the Administrative Agent may approve.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by the Person acting as the Administrative
Agent as its prime rate in effect at its principal office in New York City. The Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. The Administrative Agent or any Lender may make commercial loans or other loans at rates
of interest at, above or below the Prime Rate. Any change in the Prime Rate shall take effect at the opening of business on the day specified in the
public announcement of such change.
“Principal Office” means, for each of Administrative Agent, Swing Line Lender and each Issuing Bank, such Person’s “Principal
Office” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time
designate in writing to Borrower, Administrative Agent and each Lender.
“Pro Rata Share” means the percentage obtained by dividing the Revolving Exposure of that Lender by the aggregate Revolving
Exposure of all Lenders.
“Project Holdco” means a wholly-owned Domestic Subsidiary of Borrower that is a Guarantor and 100% of the Equity Interests of
which have been pledged to the Collateral Agent under the Pledge and Security Agreement.
“Project Obligations” means, as to Holdings or any subsidiary, any Contractual Obligation of such Person under power purchase
agreements; agreements for the purchase and sale of energy and renewable energy credits, climate change levy exemption certificates, embedded
benefits and other environmental attributes; decommissioning agreements; tax indemnities; operation and maintenance agreements; leases;
development contracts; construction contracts; management services contracts; share retention agreements; warranties; bylaws, operating
agreements, joint development agreements and other organizational documents; and other similar ordinary course contracts entered into in
connection with owning, operating, developing or constructing Clean Energy Systems.
“Project Support Agreement” means that certain Project Support Agreement, dated as of July 23, 2014, by and between Holdings and
SunEdison, as amended from time to time.
“Projections” as defined in Section 4.8.
“Public Lenders” means Lenders that do not wish to receive Non-Public Information with respect to Holdings, its Subsidiaries or their
Securities.
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“PUHCA” as defined in Section 4.26(a).
“PUHCA Exemption” as defined in Section 4.26(c).
“PUHCA Regulations” as defined in Section 4.26(a).
“PURPA” as defined in Section 4.26(a).
“PURPA Regulations” as defined in Section 4.26(a).
“QF” as defined in Section 4.26(a).
“QF Status” as defined in Section 4.26(a).
“Qualified Acquisition” means any transaction or series of transactions (i) pursuant to which the Borrower or its Subsidiaries
acquires, for an aggregate purchase price of not less than $200 million, (x) a Controlling interest (or, if it shall already own a Controlling interest in
such Person, an additional interest) in excess of 50% of, or (y) property or assets of, or (z) an operating division or business unit of, any other
Person and (ii) which is designated by the Borrower by written notice to the Administrative Agent as a Qualified Acquisition.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at
the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other
person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can
cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the
Commodity Exchange Act.
“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Credit Party in
any real property.
“REC Hedge” means any purchase, sale, swap, hedge, or similar arrangement relating to renewable energy credits.
“Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such Leasehold Property or a
memorandum thereof, executed and acknowledged by the owner of the affected real property, as lessor, or (ii) if such Leasehold Property was
acquired or subleased from the holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed and
acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Collateral Agent.
“Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record Document has been recorded in all places
necessary or desirable, in Collateral Agent’s reasonable judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrancers of the affected real property.
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“Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).
“Register” as defined in Section 2.7(b).
“Regulation D” means Regulation D of the Board of Governors, as in effect from time to time and all official rulings and interpretations
thereunder or thereof.
“Regulation T” means Regulation T of the Board of Governors, as in effect from time to time and all official rulings and interpretations
thereunder or thereof.
“Regulation U” means Regulation U of the Board of Governors, as in effect from time to time and all official rulings and interpretations
thereunder or thereof.
“Regulation X” means Regulation X of the Board of Governors, as in effect from time to time and all official rulings and interpretations
thereunder or thereof.
“Reimbursement Date” as defined in Section 2.4(d).
“Related Agreements” means, collectively, the Acquisition Agreement and the Senior Notes.
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial
loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers
or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface
water or groundwater.
“Replacement Lender” as defined in Section 2.23.
“Requisite Lenders” means one or more Lenders having or holding Revolving Exposure and representing more than 50% of the
aggregate Revolving Exposure of all Lenders; provided that the amount of Revolving Exposure of all Lenders shall be determined by disregarding
the Revolving Exposure of any Defaulting Lender.
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of
stock of Holdings, Borrower or any of their respective Subsidiaries (or any direct or indirect parent of Borrower or Holdings to the extent paid,
directly or indirectly, by Holdings, Borrower or any of their respective Subsidiaries) now or hereafter outstanding, other than a dividend payable
solely in shares of a class of stock to the holders of that class, any payment by Borrower in respect of Borrower’s guarantee of any Permitted
Convertible Bond Indebtedness issued by Parent or in respect of any Permitted Exchangeable Bond Indebtedness of Borrower and any payment
by Holdings in respect of Holdings’ guarantee of any Permitted Convertible Bond Indebtedness issued by Parent or in respect of any Permitted
Exchangeable Bond Indebtedness of Holdings; (ii) any redemption,
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retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of
Holdings or Borrower or any of their respective Subsidiaries (or any direct or indirect parent of Holdings or Borrower to the extent paid, directly or
indirectly, by Holdings, Borrower or any of their respective Subsidiaries) now or hereafter outstanding, other than any payment by Borrower in
respect of Borrower’s guarantee of any Permitted Convertible Bond Indebtedness issued by Parent or in respect of any Permitted Exchangeable
Bond Indebtedness of Borrower and any payment by Holdings in respect of Holdings’ guarantee of any Permitted Convertible Bond Indebtedness
issued by Parent or in respect of any Permitted Exchangeable Bond Indebtedness of Holdings; and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of Holdings, Borrower or any of their
respective Subsidiaries (or any direct or indirect parent of Borrower or Holdings to the extent paid, directly or indirectly, by Holdings, Borrower or
any of their respective Subsidiaries (it being understood that none of the foregoing clauses shall prohibit any payments in connection with any
Permitted Warrant Transaction to the extent such payments are equal to or less than any payments received in connection with any Permitted
Hedge Transaction entered into substantially concurrently with such Permitted Warrant Transaction) now or hereafter outstanding. For the
avoidance of doubt, none of (i) payments to or on behalf of Parent pursuant to the Management Services Agreement, (ii) payments by Borrower or
Holdings of operating expenses of Parent to the extent allocable to the operations of Holdings and its Subsidiaries, (iii) payments to Parent in
respect of Permitted Convertible Bond Indebtedness Shareholder Loans or (iv) payments to purchase Permitted Hedge Transactions shall
constitute Restricted Junior Payments.
“Restricted Subsidiary” means any subsidiary other than an Unrestricted Subsidiary; provided that upon the occurrence of any
Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such subsidiary shall be included in the definition of “Restricted Subsidiary”.
“Revaluation Date” means, with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount
thereof (solely with respect to the increased amount), (iii) each date of any payment by the applicable Issuing Bank under any Letter of Credit
denominated in an Alternative Currency, and (iv) such additional dates as the Administrative Agent or such Issuing Bank shall determine.
“Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Revolving Loan and to acquire
participations in Letters of Credit and Swing Line Loans hereunder and “Revolving Commitments” means such commitments of all Lenders in the
aggregate and, for the avoidance of doubt, includes any New Revolving Loan Commitments. The amount of each Lender’s Revolving Commitment,
if any, is set forth on Appendix A or in the applicable Assignment Agreement or Joinder Agreement, as applicable, subject to any adjustment or
reduction pursuant to the terms and conditions hereof. The aggregate amount of the Revolving Commitments as of the Closing Date is $550
million.
“Revolving Commitment Period” means the period from the Closing Date to but excluding the Revolving Commitment Termination
Date.
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“Revolving Commitment Termination Date” means the earliest to occur of (i) the 5-year anniversary of the Closing Date, (ii) the date
the Revolving Commitments are permanently reduced to zero pursuant to Section 2.13(b) or 2.14, and (iii) the date of the termination of the
Revolving Commitments pursuant to Section 8.1.
“Revolving Exposure” means, with respect to any Lender as of any date of determination, (a) prior to the termination of the Revolving
Commitments, that Lender’s Revolving Commitment; and (b) after the termination of the Revolving Commitments, the sum of (i) the aggregate
outstanding principal amount of the Revolving Loans of that Lender, (ii) in the case of any Issuing Bank, the aggregate Letter of Credit Usage in
respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in such Letters of Credit), (iii) the aggregate amount of
all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (iv) in the case of
Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and
(v) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line Loans.
“Revolving Lender” means a Lender having a Revolving Commitment.
“Revolving Loan” means a Loan made by a Lender to Borrower pursuant to Section 2.2(a) and/or Section 2.24.
“Revolving Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended, restated, supplemented or otherwise
modified from time to time.
“Royal Bank” as defined in the preamble hereto.
“Sanctions” as defined in Section 4.25.
“S&P” means Standard & Poor’s, a Division of The McGraw-Hill Companies, Inc.
“Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“Senior Notes” means the 5.875% Senior Notes due 2023 issued by Borrower pursuant to the Senior Notes Indenture.
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“Senior Notes Documents” means the Senior Notes, the Senior Notes Indenture and all other documents executed and delivered in
connection with the Senior Notes.
“Senior Notes Indenture” means Indenture dated as of January 28, 2015 pursuant to which the Senior Notes were issued.
“Solvency Certificate” means a Solvency Certificate of the chief financial officer of Holdings substantially in the form of Exhibit F-2.
“Solvent” means, with respect to all Credit Parties and their Subsidiaries, on a consolidated basis, that as of the date of determination,
both (i) (a) the sum of the Credit Parties’ and their Subsidiaries’, on a consolidated basis, liabilities (including contingent liabilities) does not
exceed the present fair saleable value of the Credit Parties’ and their Subsidiaries’, on a consolidated basis, present assets; (b) the Credit Parties’
and their Subsidiaries’, on a consolidated basis, capital is not unreasonably small in relation to their business as contemplated on the Closing Date
and reflected in the Projections or with respect to any transaction contemplated to be undertaken after the Closing Date; and (c) the Credit Parties
and their Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that
they will incur, debts beyond their ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) the Credit Parties and
their Subsidiaries, on a consolidated basis, are “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and
other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at
any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual
under Statement of Financial Accounting Standards No.5).
“Specified Acquisition Agreement Representations” means the representations made by or with respect to the Acquired Business in
the Acquisition Agreement as are material to the interests of the Lenders and the Arrangers, in their capacities as such, but only to the extent that
the Borrower or its Affiliates have the right not to consummate the Acquisition, or to terminate their obligations (or otherwise do not have an
obligation to close), under the Acquisition Agreement (in each case in accordance with the terms of the Acquisition Agreement) as a result of a
failure of such representations in the Acquisition Agreement to be true and correct.
“Specified Representations” means the representations and warranties made by the Credit Parties on the Closing Date set forth in
Sections 4.1(a), 4.1(b)(iii), 4.3, 4.4(a)(i), 4.4(a)(ii), 4.4(b), 4.6, 4.17, 4.18, 4.22, 4.25 and, subject to the limitations set forth in the last paragraph of
Section 3.1, Section 5.4 of the Pledge and Security Agreement.
“Spot Rate” for a currency means the rate determined by the Administrative Agent or the applicable Issuing Bank, as applicable, as the
spot rate for the purchase of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m.
on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or
such Issuing Bank, as
40
applicable, may obtain such spot rate from another financial institution designated by the Administrative Agent or such Issuing Bank, as
applicable, if it does not have as of the date of determination a spot buying rate for any such currency; and provided further that such Issuing
Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.
“State Electric Utility Regulations” as defined in Section 4.26(e).
“subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or
other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other subsidiaries of that Person or a combination thereof; provided, in
determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying
share” of the former Person shall be deemed to be outstanding.
“Subsidiary” means, unless the context otherwise requires, a Restricted Subsidiary of Borrower. For purposes of Sections 4.2, 4.11,
4.12, 4.20, 4.23, 4.25, 4.26, 5.1(b), 5.1(c), 5.1(d), 5.1(e), 5.1(i), 5.1(n), 5.1(p), 5.3, 5.8, 5.9 and 5.17 only, references to Subsidiaries shall be deemed also
to be references to Unrestricted Subsidiaries.
“SunEdison” means SunEdison, Inc., a Delaware corporation.
“Suppressed Availability” as defined in Section 3.2(c)(i).
“Swap Contract” means (a) any and all 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, and (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, a “Master Agreement”), including any such obligations or liabilities under any
Master Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation 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.
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“Swing Line Lender” means Barclays in its capacity as Swing Line Lender hereunder, together with its permitted successors and
assigns in such capacity.
“Swing Line Loan” means a Loan made by Swing Line Lender to Borrower pursuant to Section 2.3.
“Swing Line Note” means a promissory note in the form of Exhibit B-2, as it may be amended, restated, supplemented or otherwise
modified from time to time.
“Swing Line Sublimit” means the lesser of (i) $20 million, and (ii) the aggregate unused amount of Revolving Commitments then in
effect.
“Syndication Agents” as defined in the preamble hereto.
“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding (together with interest,
penalties and other additions thereto) of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed.
“Terminated Lender” as defined in Section 2.23.
“Title Policy” as defined in Section 5.11.
“Total Utilization of Revolving Commitments” means, as at any date of determination, the sum of (i) the aggregate principal amount of
all outstanding Revolving Loans (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing
any Issuing Bank for any amount drawn under any Letter of Credit issued by such Issuing Bank, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.
“Transaction Costs” means the fees, costs and expenses payable by Holdings, Borrower or any of Borrower’s Subsidiaries on or
before the Closing Date in connection with the transactions contemplated by the Credit Documents.
“Type of Loan” means (i) with respect to Revolving Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing
Line Loans, a Base Rate Loan.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable
jurisdiction.
“UK GAAP” means generally accepted accounting principles in the United Kingdom set forth from time to time by the United Kingdom
Accounting Standards, which are applicable to the circumstances and in effect as of the date of determination thereof.
“Unreimbursed Amount” as defined in Section 2.4(d).
“Unrestricted Subsidiary” means any subsidiary of Borrower designated on Schedule 4.1 as an Unrestricted Subsidiary as of the date
hereof or designated by an Authorized
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Officer of Borrower as an Unrestricted Subsidiary pursuant to Section 5.15 subsequent to the date hereof, and any subsidiaries of any such
designated Unrestricted Subsidiaries acquired or formed after such designation. Borrower may designate any subsidiary of Borrower (including
any existing subsidiary and any newly acquired or newly formed subsidiary) to be an Unrestricted Subsidiary unless such subsidiary or any of its
subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, Borrower or any subsidiary of Borrower
(other than any subsidiary of the subsidiary to be so designated); provided that (i) each of (A) the subsidiary to be so designated and (B) its
subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of Borrower or any Restricted
Subsidiary and (ii) Borrower may not designate any Project Holdco set forth on Schedule 5.15 or any of their respective subsidiaries (other than
subsidiaries permitted to be transferred by Section 6.8(m)) to be an Unrestricted Subsidiary.
“U.S. Lender” as defined in Section 2.20(c).
1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Holdings to Lenders
pursuant to Section 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered
together with the reconciliation statements provided for in Section 5.1(e), if applicable). Subject to the foregoing, calculations in connection with
the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the
Historical Financial Statements.
1.3. Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural,
depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including”, when following
any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not
limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within
the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as
applicable. Unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person consolidated with its
Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate
of such Person. Unless otherwise specifically indicated, any reference to any statute, regulation or law herein shall refer to such statute, regulation
or law, as applicable, as amended, modified or supplemented from time to time.
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1.4. Exchange Rates; Currency Equivalents.
(a) The applicable Issuing Bank shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Letters of Credit issued by such Issuing Bank and other amounts denominated in Alternative Currencies. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Credit Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Credit
Documents shall be such Dollar Equivalent amount as so determined by the applicable Issuing Bank.
(b) Wherever in this Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required
minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent or the applicable Issuing Bank, as the case may be.
1.5. Letter of Credit Amounts.
(a) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the
stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the
terms of any documentation related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter
of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.
(b) Borrower may from time to time request that Letters of Credit be issued in a currency other than those specifically listed in the
definition of “Alternative Currency;” provided that such requested currency is a lawful currency (other than Dollars) that is readily available and
freely transferable and convertible into Dollars. Such request shall be subject to the approval of the applicable Issuing Bank, which approval shall
not be unreasonably withheld, conditioned or delayed. If an Issuing Bank consents to the issuance of Letters of Credit in such requested
currency, such Issuing Bank shall so notify Borrower and the Administrative Agent, and such currency shall thereupon be deemed for all
purposes to be an Alternative Currency hereunder for the purposes of any Letter of Credit.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1. [Reserved.]
2.2. Revolving Loans.
(a) Revolving Commitments. During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender
severally agrees to make Revolving Loans in Dollars to Borrower in an aggregate amount up to but not exceeding such Lender’s Revolving
Commitment; provided, that after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving
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Commitments then in effect. Amounts borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed during the Revolving Commitment
Period. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other
amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
(b) Borrowing Mechanics for Revolving Loans.
(i) Except pursuant to Section 2.4(d), Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum amount
of $2,000,000 and integral multiples of $1,000,000 in excess of that amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an
aggregate minimum amount of $2,000,000 and integral multiples of $100,000 in excess of that amount.
(ii) Subject to Section 3.2(b), whenever Borrower desires that Lenders make Revolving Loans, Borrower shall deliver to
Administrative Agent a fully executed and delivered Funding Notice no later than 10:00 a.m. (New York City time) at least three Business
Days in advance of the proposed Credit Date in the case of a Eurodollar Rate Loan, and at least one Business Day in advance of the
proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan; provided that, if such Credit Date is the Closing Date, such
Funding Notice may be delivered on the Closing Date with respect to Base Rate Loans and such period shorter than three Business Days as
may be agreed by Administrative Agent with respect to Eurodollar Rate Loans. Except as otherwise provided herein, a Funding Notice for a
Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower
shall be bound to make a borrowing in accordance therewith.
(iii) Promptly following receipt of a Funding Notice in respect of Revolving Loans, Administrative Agent shall advise each
Lender of the details thereof and the amount of such Lender’s Pro Rata Share of the requested Borrowing, if any, together with the applicable
interest rate.
(iv) Each Lender shall make the amount of its Revolving Loan available to Administrative Agent not later than 12:00 p.m. (New
York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at the Principal Office of Administrative Agent.
Administrative Agent shall make the proceeds of such Revolving Loans received from the Lenders available to Borrower on the applicable
Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by
Administrative Agent from Lenders to be credited to the account of Borrower at the Principal Office designated by Administrative Agent or
such other account as may be designated in writing to Administrative Agent by Borrower.
2.3. Swing Line Loans.
(a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to the terms and conditions hereof, Swing Line
Lender may, from time to time in its discretion, agree to make Swing Line Loans to Borrower in the aggregate amount up to but
45
not exceeding the Swing Line Sublimit; provided, that after giving effect to the making of any Swing Line Loan, in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed pursuant to this Section 2.3 may be
repaid and reborrowed during the Revolving Commitment Period. Swing Line Lender’s Revolving Commitment shall expire on the Revolving
Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans and the
Revolving Commitments shall be paid in full no later than such date.
(b) Borrowing Mechanics for Swing Line Loans.
(i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount.
(ii) Subject to Section 3.2(b), whenever Borrower desires that Swing Line Lender make a Swing Line Loan, Borrower shall deliver
to both the Swing Line Lender and Administrative Agent a Funding Notice no later than 11:00 a.m. (New York City time) on the proposed
Credit Date.
(iii) Swing Line Lender shall make the amount of its Swing Line Loan available to Borrower on the applicable Credit Date by wire
transfer of same day funds in Dollars to such account as may be designated in writing to Swing Line Lender and Administrative Agent by
Borrower.
(iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to Section 2.13, Swing
Line Lender may at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 1:00
p.m. (New York City time) at least one Business Day in advance of the proposed Credit Date, a notice (which shall be deemed to be a
Funding Notice given by Borrower) requesting that each Lender holding a Revolving Commitment make Revolving Loans that are Base Rate
Loans to Borrower on such Credit Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”)
outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement
to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made by the Lenders other than Swing Line Lender shall be
immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of
the Refunded Swing Line Loans and (2) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded
Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender to Borrower, and such
portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under
the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans to
Borrower and shall be due under the Revolving Loan Note issued by Borrower to Swing Line Lender. Borrower hereby authorizes
Administrative Agent and Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up to the
amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded
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Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loans deemed to be made
by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed
to be paid) to Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for
the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner
contemplated by Section 2.17.
(v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an amount sufficient to repay any amounts
owed to Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans, and in an amount equal to its Pro Rata Share of the applicable unpaid amount together
with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Lender holding a Revolving Commitment shall
deliver to Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the
Principal Office of Swing Line Lender. In order to evidence such participation each Lender holding a Revolving Commitment agrees to enter
into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In
the event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender the amount of such Lender’s
participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender
together with interest thereon for three Business Days at the rate customarily used by Swing Line Lender for the correction of errors among
banks and thereafter at the Base Rate, as applicable.
(vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender’s obligation to purchase
a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender
may have against Swing Line Lender, any Credit Party or any other Person for any reason whatsoever; (B) the occurrence or continuation of
a Default or Event of Default; (C) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or
prospects of any Credit Party; (D) any breach of this Agreement or any other Credit Document by any party thereto; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Lender
are subject to the condition that Swing Line Lender had not received prior notice from Borrower or the Requisite Lenders that any of the
conditions under Section 3.2 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were not
satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made; and (2) Swing Line Lender shall not be
obligated to make any Swing Line Loans (A) if it has elected not to do so after the occurrence and during the
47
continuation of a Default or Event of Default, (B) it does not in good faith believe that all conditions under Section 3.2 to the making of such
Swing Line Loan have been satisfied or waived by the Requisite Lenders or (C) at a time when any Lender is a Defaulting Lender unless
Swing Line Lender has entered into arrangements satisfactory to it (in its sole discretion) to eliminate Swing Line Lender’s risk with respect
to the Defaulting Lender’s participation in such Swing Line Loan, including by Cash Collateralizing such Defaulting Lender’s Pro Rata Share
of the outstanding Swing Line Loans.
(c) Resignation and Removal of Swing Line Lender. Swing Line Lender may resign as Swing Line Lender upon 30 days prior written
notice to Administrative Agent, Lenders and Borrower. Swing Line Lender may be replaced at any time by written agreement among Borrower,
Administrative Agent, the replaced Swing Line Lender (provided that no consent will be required if the replaced Swing Line Lender has no Swing
Line Loans outstanding) and the successor Swing Line Lender. Administrative Agent shall notify the Lenders of any such replacement of Swing
Line Lender. At the time any such replacement or resignation shall become effective, (i) Borrower shall prepay any outstanding Swing Line Loans
made by the resigning or removed Swing Line Lender, (ii) upon such prepayment, the resigning or removed Swing Line Lender shall surrender any
Swing Line Note held by it to Borrower for cancellation, and (iii) Borrower shall issue, if so requested by the successor Swing Line Lender, a new
Swing Line Note to the successor Swing Line Lender, in the principal amount of the Swing Line Sublimit then in effect and with other appropriate
insertions. From and after the effective date of any such replacement or resignation, (x) any successor Swing Line Lender shall have all the rights
and obligations of a Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (y) references herein to the
term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous
Swing Line Lenders, as the context shall require.
2.4. Issuance of Letters of Credit and Purchase of Participations Therein.
(a) Letters of Credit. During the Revolving Commitment Period, subject to the terms and conditions hereof, Issuing Bank agrees to
issue Letters of Credit for the account of Holdings, Borrower or any of Borrower’s subsidiaries in the aggregate amount up to but not exceeding
the Letter of Credit Sublimit; provided, (i) each Letter of Credit shall be denominated in Dollars or one or more Alternative Currencies; (ii) the stated
amount of each Letter of Credit shall not be less than $250,000 or such lesser amount as is acceptable to such Issuing Bank; (iii) after giving effect
to such issuance, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect; (iv) after
giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; (v) in no event shall
any Letter of Credit have an expiration date later than the date which is one year from the date of issuance of such Letter of Credit; and (vi) in no
event shall any Letter of Credit have an expiration date later than the Letter of Credit Expiration Date. Subject to the foregoing, Issuing Bank may
agree that a Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each, unless such Issuing
Bank elects not to extend for any such additional period; provided, such Issuing Bank shall not extend any such Letter of Credit if it has received
written notice that an Event of Default has occurred and is continuing at the time such Issuing Bank must elect to allow such extension; provided
further, if any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue any Letter of
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Credit unless such Issuing Bank has entered into arrangements, including reallocation of such Lender’s Pro Rata Share of the outstanding
Obligations with respect to Letters of Credit issued by such Issuing Bank or Cash Collateralized pursuant to
Section 2.22(a), satisfactory to such Issuing Bank (in its sole discretion) to eliminate such Issuing Bank’s risk with respect to the participation in
Letters of Credit of the Defaulting Lender. In the event of any inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, an
Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Issuing Bank shall be required to issue
Letters of Credit in excess of $50,000,000 in the aggregate at any time outstanding. Barclays shall not be required to issue any Letter of Credit that
is not a standby letter of credit.
Notwithstanding anything to the contrary contained herein, no Issuing Bank shall be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such
Issuing Bank from issuing such Letter of Credit, or any law, regulation or statute applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request
that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such
Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit
generally; or
(iii) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(b) Notice of Issuance. Subject to Section 3.2(b), whenever Borrower desires the issuance of a Letter of Credit, it shall deliver to
Administrative Agent and the applicable Issuing Bank an Issuance Notice no later than 12:00 p.m. (New York City time) at least three Business
Days (in the case of standby letters of credit) or five Business Days (in the case of commercial letters of credit), or in each case such shorter period
as may be agreed to by an Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon satisfaction or waiver of the
conditions set forth in Section 3.2, the applicable Issuing Bank shall issue the requested Letter of Credit only in accordance with such Issuing
Bank’s standard operating procedures. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application
(appropriately completed and signed by an Authorized Officer of the Borrower including agreed-upon draft language for such Letter of Credit
reasonably acceptable to the applicable Issuing Bank) on such Issuing Bank’s standard form in connection with any request for a Letter of Credit.
Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit, the applicable Issuing Bank shall promptly notify the
Administrative Agent of such issuance, which notice shall be accompanied by a copy
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of such Letter of Credit or amendment or modification to a Letter of Credit, and thereafter, Administrative Agent shall promptly notify each Lender
with a Revolving Commitment of such issuance and the amount of such Lender’s respective participation in such Letter of Credit pursuant to
Section 2.4(e) (and provide a copy of such Letter of Credit or amendment or modification to a Letter of Credit at Lender’s request).
(c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments. In determining whether to honor any
drawing under any Letter of Credit by the beneficiary thereof, the applicable Issuing Bank shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit. As between Borrower and Issuing Bank, Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, no Issuing Bank shall be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any
conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss
or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control of such Issuing Bank, including any Governmental Acts; none of the above shall
affect or impair, or prevent the vesting of, any of such Issuing Bank’s rights or powers hereunder. Without limiting the foregoing and in
furtherance thereof, any action taken or omitted by any Issuing Bank under or in connection with the Letters of Credit or any documents and
certificates delivered thereunder, if taken or omitted in good faith, shall not give rise to any liability on the part of any Issuing Bank to Borrower.
Notwithstanding anything to the contrary contained in this Section 2.4(c), Borrower shall retain any and all rights it may have against Issuing Bank
for any liability arising out of the gross negligence or willful misconduct of such Issuing Bank as determined by a final, non-appealable judgment
of a court of competent jurisdiction.
(d) Reimbursement by Borrower of Amounts Drawn or Paid Under Letters of Credit. In the event an Issuing Bank has honored a
drawing under a Letter of Credit, it shall immediately notify Borrower and Administrative Agent, and Borrower shall reimburse such Issuing Bank
on or before the date which is three Business Days following the date on which such drawing is honored (the “Reimbursement Date”) in an
amount in (x) if such Letter of Credit is denominated in Dollars, Dollars and (y) if such Letter of Credit is denominated in an Alternative Currency,
such Alternative Currency, unless (A) such Issuing Bank (at its option) shall have specified in such notice that it will require reimbursement in
Dollars, or (B) in the
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absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified such Issuing Bank promptly following receipt of
the notice of drawing that the Borrower will reimburse such Issuing Bank in Dollars and, in each case of clause (x) and (y), in same day funds equal
to the amount of such honored drawing (“Unreimbursed Amount”); provided, anything contained herein to the contrary notwithstanding,
(i) unless Borrower shall have notified Administrative Agent and the applicable Issuing Bank prior to 10:00 a.m. (New York City time) on the date
such drawing is honored that Borrower intends to reimburse such Issuing Bank for the Unreimbursed Amount with funds other than the proceeds
of Revolving Loans, Borrower shall be deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders with Revolving
Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal to the Dollar
Equivalent of the amount of such honored drawing, and (ii) subject to satisfaction or waiver of the conditions specified in Section 3.2, Lenders
with Revolving Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such honored
drawing, the proceeds of which shall be applied directly by Administrative Agent to reimburse such Issuing Bank for the amount of such honored
drawing; and provided further, if for any reason proceeds of Revolving Loans are not received by the applicable Issuing Bank on the
Reimbursement Date in an amount equal to the amount of such honored drawing, Borrower shall reimburse such Issuing Bank, on demand, in an
amount in same day funds equal to the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans, if any,
which are so received. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, such Issuing Bank shall notify Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination
thereof; provided, that the Reimbursement Date for such drawing shall be the date which is three Business Days following Borrower’s receipt of
such notice. Nothing in this Section 2.4(d) shall be deemed to relieve any Lender with a Revolving Commitment from its obligation to make
Revolving Loans on the terms and conditions set forth herein, and Borrower shall retain any and all rights it may have against any such Lender
resulting from the failure of such Lender to make such Revolving Loans under this Section 2.4(d).
(e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the issuance of each Letter of Credit, each Lender having
a Revolving Commitment shall be deemed to have purchased, and hereby agrees to irrevocably purchase, from the Issuing Bank issuing such
Letter of Credit a participation (denominated in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated
in an Alternative Currency) in such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata Share
(with respect to the Revolving Commitments) of the maximum amount which is or at any time may become available to be drawn thereunder. In the
event that Borrower does not for any reason reimburse the applicable Issuing Bank as provided in Section 2.4(d), such Issuing Bank shall promptly
notify each Lender with a Revolving Commitment of the Unreimbursed Amount and of such Lender’s respective participation therein based on
such Lender’s Pro Rata Share of the Revolving Commitments. Each Lender with a Revolving Commitment shall make available to the applicable
Issuing Bank an amount equal to its respective participation, in Dollars and in same day funds, at the office of such Issuing Bank specified in such
notice, not later than 12:00 p.m. (New York City time) on the first Business Day after the date notified by such Issuing Bank. In the event that any
Lender with a Revolving Commitment fails to make available to the applicable Issuing Bank on such Business Day the
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amount of such Lender’s participation in such Letter of Credit as provided in this Section 2.4(e), such Issuing Bank shall be entitled to recover
such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by such Issuing
Bank for the correction of errors among banks and thereafter at the Base Rate. Nothing in this Section 2.4(e) shall be deemed to prejudice the right
of any Lender with a Revolving Commitment to recover from the applicable Issuing Bank any amounts made available by such Lender to such
Issuing Bank pursuant to this Section 2.4(e) in the event that the payment with respect to a Letter of Credit in respect of which payment was made
by such Lender constituted gross negligence or willful misconduct on the part of such Issuing Bank. In the event the applicable Issuing Bank shall
have been reimbursed by other Lenders pursuant to this Section 2.4(e) for all or any portion of any drawing honored by such Issuing Bank under a
Letter of Credit, such Issuing Bank shall distribute in Dollars to each Lender which has paid all amounts payable by it under this Section 2.4(e) with
respect to such honored drawing such Lender’s Pro Rata Share of all payments subsequently received by such Issuing Bank from Borrower in
reimbursement of such honored drawing when such payments are received. Any such distribution shall be made to a Lender at its primary address
set forth below its name on Appendix B or at such other address as such Lender may request.
(f) Obligations Absolute. The obligation of Borrower to reimburse Issuing Bank for drawings honored under the Letters of Credit
issued by it and to repay any Revolving Loans made by Lenders pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e)
shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under all circumstances including any of the
following circumstances: (i) any lack of validity or enforceability of any Letter of Credit or this Agreement; (ii) the existence of any claim, set-off,
defense or other right which Borrower or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any
Persons for whom any such transferee may be acting), such Issuing Bank, Lender or any other Person or, in the case of a Lender, against
Borrower, whether in connection herewith, the transactions contemplated herein or any unrelated transaction (including any underlying
transaction between Borrower or one of its Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other
document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (iv) payment by such Issuing Bank under any Letter of Credit against presentation of a draft or other
document which does not comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries; (vi) any breach hereof or any other Credit Document by any
party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; (viii) any adverse change in
the relevant exchange rates or in the availability of the relevant Alternative Currency to Borrower or any Subsidiary or in the relevant currency
markets generally; or (ix) the fact that an Event of Default or a Default shall have occurred and be continuing; provided, in each case, that payment
by such Issuing Bank under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of such Issuing Bank
under the circumstances in question as determined by a final, non-appealable judgment of a court of competent jurisdiction. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make
payment
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upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Indemnification. Without duplication of any obligation of Borrower under Section 10.2 or 10.3, in addition to amounts payable as
provided herein, Borrower hereby agrees to protect, indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of
internal counsel) which such Issuing Bank may incur or be subject to as a consequence, direct or indirect, of (i) (A) the execution or delivery of
this Agreement or any agreement or instrument contemplated hereby, (B) the issuance of any Letter of Credit by such Issuing Bank or the use of
the proceeds therefrom (including any refusal by such Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (C) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation or proceeding is brought
by the Borrower or its equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and
regardless of whether such Issuing Bank is a party thereto, in each case other than as a result of the gross negligence or willful misconduct of
such Issuing Bank as determined by a final, non-appealable judgment of a court of competent jurisdiction, or (ii) the failure of such Issuing Bank to
honor a drawing under any such Letter of Credit as a result of any Governmental Act.
(h) Resignation and Removal of Issuing Bank. An Issuing Bank may resign as Issuing Bank upon 60 days prior written notice to
Administrative Agent, Lenders and Borrower. An Issuing Bank may be replaced at any time by written agreement among Borrower, Administrative
Agent, the replaced Issuing Bank (provided that no consent will be required if the replaced Issuing Bank has no Letters of Credit or reimbursement
obligations with respect thereto outstanding) and the successor Issuing Bank. Administrative Agent shall notify the Lenders of any such
replacement of such Issuing Bank. At the time any such replacement or resignation shall become effective, Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank. From and after the effective date of any such replacement or resignation, (i) any successor
Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the replacement or resignation of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement or
resignation, but shall not be required to issue additional Letters of Credit.
(i) Cash Collateralization of Letters of Credit.
(i) If the Administrative Agent notifies Borrower at any time that the Letter of Credit Usage exceeds the Letter of Credit Sublimit
then in effect, then, within two Business Days after receipt of such notice, Borrower shall Cash Collateralize Letters
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of Credit in an aggregate amount sufficient to reduce such Letter of Credit Usage (net of Cash Collateralized amounts) as of such date of
payment to an amount not to exceed 100% of the Letter of Credit Sublimit then in effect.
(ii) With respect to any Letter of Credit with an expiration date on or after the Revolving Commitment Termination Date, no later
than ten Business Days prior to the Revolving Commitment Termination Date, the Borrower shall either provide Cash Collateral or backstop
letters of credit satisfactory to Issuing Bank in an amount equal to the Minimum Collateral Amount.
(iii) In the event that Borrower does not for any reason comply with its obligation to provide Cash Collateral or backstop letters
of credit as set forth in clause (ii) above, Administrative Agent shall promptly notify each Lender with a Revolving Commitment of such
Lender’s respective participation in the Letter of Credit based on such Lender’s Pro Rata Share of the Revolving Commitments. Each Lender
with a Revolving Commitment shall, not later than 12:00 p.m. (New York City time) on the first Business Day after the date notified by the
applicable Issuing Bank, make Revolving Loans that are Base Rate Loans in the amount of such Lender’s Pro Rata Share of the Minimum
Collateral Amount, the proceeds of which shall be applied directly by Administrative Agent to satisfy Borrower’s obligation to provide Cash
Collateral as set forth in clause (ii) above.
(j) Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, Borrower shall
promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of (i) any failure by
Borrower to repay any drawing under any Letter of Credit denominated in an Alternative Currency which has not been converted to a Revolving
Loan (or to pay interest due thereon) on its scheduled due date or (ii) any repayment by Borrower of such a drawing (or payment of interest
thereon) in a currency other than the currency of such Letter of Credit or Dollars, including any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain its participation in such Letter of Credit, from fees payable to
terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. Borrower shall also pay
any customary administrative fees charged by such Lender in connection with the foregoing.
2.5. Pro Rata Shares; Availability of Funds.
(a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Revolving Commitment of any Lender be
increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or
purchase participation required hereby.
(b) Availability of Funds. Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that
such Lender does not intend to
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make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that
such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion,
but shall not be obligated to, make available to Borrower a corresponding amount on such Credit Date. If such corresponding amount is not in fact
made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand
from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at
the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate.
In the event that a Lender fails to fund to Administrative Agent all or any portion of the Loans required to be funded by such Lender hereunder
prior to the time specified in this Agreement, such Lender shall not receive interest hereunder with respect to the requested amount of such
Lender’s Loans for the period commencing with the time specified in this Agreement for receipt of payment by the Borrower through and including
the time of Borrower’s receipt of the requested amount. If such Lender does not pay such corresponding amount forthwith upon Administrative
Agent’s demand therefor, Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay such corresponding amount
to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative
Agent, at the rate payable hereunder for Base Rate Loans. Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation
to fulfill its Revolving Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by
such Lender hereunder.
2.6. Use of Proceeds. The proceeds of the Revolving Loans made on the Closing Date shall be used by the Borrower to refinance all or a
portion of the Existing Indebtedness and to fund fees and expenses payable hereunder. The proceeds of the Revolving Loans, Swing Line Loans
and Letters of Credit made after the Closing Date shall be used by Borrower to fund fees and expenses payable hereunder and for general
corporate purposes of the Borrower not in contravention of any law, including to provide for ongoing working capital requirements.
2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.
(a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of
Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such
recordation shall be conclusive and binding on Borrower, absent manifest error; provided, that the failure to make any such recordation, or any
error in such recordation, shall not affect any Lender’s Revolving Commitments or Borrower’s Obligations in respect of any applicable Loans;
provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the
recordation of the names and addresses of Lenders and the Revolving Commitments and Loans of each Lender from time to time (the “Register”).
The Register shall be available for inspection by the Borrower or any Lender (but only, in the case of a Lender, at the Administrative Agent’s
Office and with respect to any entry relating to such Lender’s Commitments, Loans, L/C Obligations and other Obligations), at any
55
reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in the
Register the Revolving Commitments and the Loans in accordance with the provisions of Section 10.6, and each repayment or prepayment in
respect of the principal amount of the Loans. The entries in the Register shall be conclusive, absent manifest error, and binding on Borrower, each
Lender and Administrative Agent. The Borrower, each Lender and Administrative Agent 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. Borrower hereby designates Administrative Agent
to serve as Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as provided in this Section 2.7, and Borrower hereby
agrees that, to the extent Administrative Agent serves in such capacity, Administrative Agent and its officers, directors, employees, agents, subagents and affiliates shall constitute “Indemnitees.”
(c) Notes. If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two Business
Days prior to the Closing Date, or at any time thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified
in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after
the Closing Date, promptly after Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Revolving Loan or Swing Line
Loan, as the case may be.
2.8. Interest on Loans.
(a) Except as otherwise set forth herein, Loans shall bear interest on the unpaid principal amount thereof from the date made through
repayment (whether by acceleration or otherwise) thereof as follows:
(i) in the case of Revolving Loans:
(1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Margin; and
(ii) in the case of Swing Line Loans, at the Base Rate plus the Applicable Margin.
(b) The basis for determining the rate of interest with respect to any Loan (except a Swing Line Loan which can be made and
maintained as Base Rate Loans only), and the Interest Period with respect to any Eurodollar Rate Loan, shall be selected by Borrower and notified
to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.
(c) In connection with Eurodollar Rate Loans there shall be no more than five (5) Interest Periods outstanding at any time. In the event
Borrower fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or
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Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on
the last day of the then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will
be made as, a Base Rate Loan). In the event Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Funding
Notice or Conversion/Continuation Notice, Borrower shall be deemed to have selected an Interest Period of one month. As soon as practicable
after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed
in writing) to Borrower and each Lender.
(d) Interest payable pursuant to Section 2.8(a) shall be computed on the basis of a 360-day year, except that interest computed by
reference to the Base Rate at times when the Base Rate is based on the Prime Rate shall be computed on the basis of a 365-day or 366-day year, as
the case may be, for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a
Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the
date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being
converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be
excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable in arrears on each
Interest Payment Date with respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable in
arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall
accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans; provided, however, with
respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.
(f) Borrower agrees to pay to Issuing Bank, with respect to drawings honored under any Letter of Credit, interest on the amount paid
by such Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is
reimbursed by or on behalf of Borrower at a rate equal to (i) for the period from the date such drawing is honored to but excluding the applicable
Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans, and
(ii) thereafter, a rate which is 2% per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving Loans that are
Base Rate Loans.
(g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a 365/366-day year for the actual number of days
elapsed in the period during which it accrues, and shall be payable on the date on which the related drawing under a Letter of Credit is
57
reimbursed in full or, on and after the Reimbursement Date, on demand. Promptly upon receipt by Issuing Bank of any payment of interest
pursuant to Section 2.8(f), such Issuing Bank shall distribute to each Lender, out of the interest received by such Issuing Bank in respect of the
period from the date such drawing is honored to but excluding the date on which such Issuing Bank is reimbursed for the amount of such drawing
(including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Lender would have been entitled to receive
in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period if no drawing had been
honored under such Letter of Credit. In the event Issuing Bank shall have been reimbursed by Lenders for all or any portion of such honored
drawing, such Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under Section 2.4(e) with respect to such
honored drawing such Lender’s Pro Rata Share of any interest received by such Issuing Bank in respect of that portion of such honored drawing
so reimbursed by Lenders for the period from the date on which such Issuing Bank was so reimbursed by Lenders to but excluding the date on
which such portion of such honored drawing is reimbursed by Borrower.
2.9. Conversion/Continuation.
(a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred and then be continuing, Borrower shall
have the option:
(i) to convert at any time all or any part of any Revolving Loan equal to $2,000,000 and integral multiples of $100,000 in excess of
that amount from one Type of Loan to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on the expiration of
the Interest Period applicable to such Eurodollar Rate Loan unless Borrower shall pay all amounts due under Section 2.18 in connection with
any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, to continue all or any portion of such Loan
equal to $2,000,000 and integral multiples of $100,000 in excess of that amount as a Eurodollar Rate Loan.
(b) Subject to Section 3.2(b), Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 10:00 a.m.
(New York City time) at least three Business Days in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan)
and at least three Business Days in advance of the proposed Conversion/Continuation Date (in the case of a conversion to, or a continuation of, a
Eurodollar Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any
Eurodollar Rate Loans shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to effect a
conversion or continuation in accordance therewith. If on any day a Loan is outstanding with respect to which a Funding Notice or
Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable
basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
2.10. Default Interest. Automatically if the Obligations shall have been accelerated pursuant to Section 8.1 or upon the occurrence and
during the continuance of an Event of Default
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under Section 8.1(a), (f) or (g), and at the request of the Requisite Lenders upon the occurrence and during the continuance of any other Event of
Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any
fees or other amounts owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under Debtor Relief Laws)
payable on demand at a rate that is 2% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans
(or, in the case of any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for
Base Rate Loans that are Revolving Loans); provided, in the case of Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at
the time any such increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall thereafter
bear interest payable upon demand at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for Base Rate
Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted alternative to timely payment
and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any
Lender.
2.11. Fees.
(a) Borrower agrees to pay to Lenders having Revolving Exposure:
(i) commitment fees equal to (1) the average of the daily difference between (A) the Revolving Commitments and (B) the
aggregate principal amount of (x) all outstanding Revolving Loans (for the avoidance of doubt, excluding Swing Line Loans) plus (y) the
Letter of Credit Usage, times (2) the Applicable Revolving Commitment Fee Percentage; and
(ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans, times (2) the Dollar
Equivalent of the average aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any
conditions for drawing could then be met and determined as of the close of business on any date of determination).
All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent in Dollars at its Principal Office and upon receipt, Administrative
Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
(b) Borrower agrees to pay directly to Issuing Bank, for its own account, the following fees:
(i) a fronting fee equal to 0.25%, per annum, times the average aggregate daily maximum amount available to be drawn under all
Letters of Credit (determined as of the close of business on any date of determination); and
(ii) such documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in
accordance with Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or
payment, as the case may be.
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(c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of a 360-day year and the actual number of days
elapsed and shall be payable quarterly in arrears on the last Business Day of March, June, September and December of each year during the
Revolving Commitment Period, commencing on the first such date to occur after the Closing Date, and on the Revolving Commitment Termination
Date.
(d) [Reserved.]
(e) In addition to any of the foregoing fees, Borrower agrees to pay to Agents such other fees in the amounts and at the times
separately agreed upon.
2.12. [Reserved.]
2.13. Voluntary Prepayments/Commitment Reductions.
(a) Voluntary Prepayments.
(i) Any time and from time to time:
(1) with respect to Base Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or
in part, in an aggregate minimum amount of $2,000,000 and integral multiples of $100,000 in excess of that amount (or such lesser
amount which constitutes the full amount of such Loans outstanding);
(2) with respect to Eurodollar Rate Loans, Borrower may prepay any such Loans on any Business Day in
whole or in part in an aggregate minimum amount of $2,000,000 and integral multiples of $100,000 in excess of that amount (or
such lesser amount which constitutes the full amount of such Loans outstanding); and
(3) with respect to Swing Line Loans, Borrower may prepay any such Loans on any Business Day in whole
or in part in an aggregate minimum amount of $500,000, and in integral multiples of $100,000 in excess of that amount (or such
lesser amount which constitutes the full amount of such Loans outstanding).
(ii) All such prepayments shall be made:
(1) upon not less than one Business Day’s prior written notice in the case of Base Rate Loans;
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(2) upon not less than three Business Days’ prior written in the case of Eurodollar Rate Loans; and
(3) upon written notice on the date of prepayment, in the case of Swing Line Loans;
in each case given in the form of a Prepayment Notice to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m. (New York
City time) on the date required (and Administrative Agent will promptly transmit such original notice for Revolving Loans by telefacsimile or
telephone to each Lender or Swing Line Lender, as the case may be). Upon the giving of any such Prepayment Notice, the principal amount of the
Loans specified in such notice shall become due and payable on the prepayment date specified therein; provided, that a Prepayment Notice made
in connection with a refinancing of the Loans or sale of the Borrower may be conditioned upon the consummation of such refinancing or sale (and
if such refinancing or sale is not consummated, the principal amount of the Loans specified in such notice shall not be so due and payable on the
prepayment date specified in such notice). Any such voluntary prepayment shall be applied as specified in Section 2.15(a).
(b) Voluntary Commitment Reductions.
(i) Borrower may, upon not less than three Business Days’ prior written notice to Administrative Agent (which original written
notice Administrative Agent will promptly transmit by telefacsimile or telephone to each applicable Lender), at any time and from time to time
terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by
which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or
reduction; provided, any such partial reduction of the Revolving Commitments shall be, unless otherwise agreed by the Administrative
Agent in an aggregate minimum amount of $2,000,000 and in integral multiples of $100,000 in excess of that amount (or such lesser amount
which constitutes the full amount of Revolving Commitments in excess of the Total Utilization of Revolving Commitments at such time). Any
Revolving Commitments terminated under this Section 2.13(b) may not be re-established.
(ii) Borrower’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the
date specified in Borrower’s notice and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof;
provided, that a Prepayment Notice made in connection with a refinancing of the Loans or sale of the Borrower may be conditioned upon the
consummation of such refinancing or sale (and if such refinancing or sale is not consummated, the principal amount of the Loans specified in
such notice shall not be so due and payable on the prepayment date specified in such notice).
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2.14. Mandatory Prepayments/Commitment Reductions.
(a) [Reserved.]
(b) [Reserved.]
(c) Issuance of Debt. On the date of receipt by Holdings or any of its Subsidiaries (other than Non-Recourse Subsidiaries) of any Cash
proceeds from the incurrence of any Indebtedness of Holdings or any of its Subsidiaries (other than with respect to any Indebtedness permitted to
be incurred pursuant to Section 6.1), Borrower shall prepay any Loans (without any permanent reduction of Revolving Commitments) as set forth
in Section 2.15(b) in an aggregate amount equal to the lesser of (x) the outstanding amount of the Loans and (y) 100% of such proceeds, net of
underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and
expenses.
(d) Revolving Loans and Swing Loans. Borrower shall from time to time prepay first, the Swing Line Loans, and second, the Revolving
Loans to the extent necessary so that the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments
then in effect.
(e) Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to Section 2.14(c), Borrower shall deliver to
Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds. In the
event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall
promptly make an additional prepayment of the Loans in an amount equal to the lesser of (x) the outstanding amount of the Loans at such time and
(y) an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized
Officer demonstrating the derivation of such excess.
2.15. Application of Prepayments/Reductions.
(a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan pursuant to Section 2.13(a) shall be applied
as specified by Borrower in the applicable Prepayment Notice; provided, in the event Borrower fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied as follows:
first, to repay outstanding Swing Line Loans to the full extent thereof; and
second, to repay outstanding Revolving Loans to the full extent thereof.
(b) Application of Mandatory Prepayments by Type of Loans. Any amount required to be paid pursuant to Section 2.14(c) shall be
applied as follows:
first, to prepay the Swing Line Loans to the full extent thereof;
second, to prepay the Revolving Loans to the full extent thereof;
third, to prepay outstanding reimbursement obligations with respect to Letters of Credit; and
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fourth, to Cash Collateralize Letters of Credit.
(c) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans. Any prepayment of Revolving Loans shall be
applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner which minimizes the
amount of any payments required to be made by Borrower pursuant to Section 2.18(c).
2.16. General Provisions Regarding Payments.
(a) All payments by Borrower of principal, interest, fees and other Obligations shall be made in Dollars (unless otherwise expressly
provided herein) in same day funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 p.m. (New York City time) on the date due at the Principal Office of Administrative Agent for the account
of Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed
to have been paid by Borrower on the next succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans) shall be
accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any
payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest
then due and payable before application to principal.
(c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such
Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder,
together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender
or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect
thereto in apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition of “Interest Period”, whenever any payment to be made hereunder with respect to
any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Commitment fees hereunder.
(f) Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to
12:00 p.m. (New York City time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative
Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Administrative Agent shall give
prompt telephonic notice to Borrower and each applicable Lender (confirmed in writing) if any payment
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is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of
Section 8.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available
funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined
pursuant to Section 2.10 from the date such amount was due and payable until the date such amount is paid in full.
(g) If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been
accelerated pursuant to Section 8.1 or pursuant to any sale of, any collection from, or other realization upon all or any part of the Collateral, all
payments or proceeds received by Agents in respect of any of the Obligations, shall be applied in accordance with the application arrangements
described in Section 9.2 of the Pledge and Security Agreement.
2.17. Ratable Sharing. Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien,
by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal,
interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other
Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify
Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all
Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases
shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such
recovery, but without interest. Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker’s lien, consolidation, set-off or counterclaim with respect to any and all monies owing by
Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions
of this Section 2.17 shall not be construed to apply to (a) any payment made by Borrower 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 any Lender
as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
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2.18. Making or Maintaining Eurodollar Rate Loans.
(a) Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate
Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest
rate applicable to such Loans on the basis provided for in the definition of “Adjusted Eurodollar Rate”, Administrative Agent shall on such date
give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans
may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the
circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Borrower with
respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower.
(b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any date (i) any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with the Borrower and the
Administrative Agent) that the making, maintaining, converting to or continuation of its Eurodollar Rate Loans has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such
treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be
unlawful), or (ii) Administrative Agent is advised by the Requisite Lenders (which determination shall be final and conclusive and binding upon all
parties hereto) that the making, maintaining, converting to or continuation of its Eurodollar Rate Loans has become impracticable, as a result of
contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of the Lenders in
that market, then, and in any such event, such Lenders (or in the case of the preceding clause (i), such Lender) shall be an “Affected Lender” and
such Affected Lender shall on that day give notice (by e-mail or by telephone confirmed in writing) to Borrower and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each other Lender). If Administrative Agent receives a notice from
(x) any Lender pursuant to clause (i) of the preceding sentence or (y) a notice from Lenders constituting Requisite Lenders pursuant to clause
(ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence,
such Lender) to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by each
Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Borrower
pursuant to a Funding Notice or a Conversion/Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the
preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate
Loan, (3) the Lenders’ (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender’s) obligations to maintain their
respective outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest
Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base
Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice,
Borrower shall
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have the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders
by giving written to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender).
(c) Compensation for Breakage or Non-Commencement of Interest Periods. Borrower shall compensate each Lender, upon written
request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities
(including any interest paid or payable by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss,
expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Funding Notice, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a
date specified therefor in a Conversion/Continuation Notice; (ii) if any prepayment or other principal payment of, or any conversion of, any of its
Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in the Prepayment Notice given by Borrower. With respect to any Lender’s claim for
compensation under this Section 2.18, Borrower shall not be required to compensate such Lender for any amount incurred more than 180 calendar
days prior to the date that such Lender notifies Borrower of the event that gives rise to such claim.
(d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any
of its branch offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.18
and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase
of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of “Adjusted Eurodollar Rate” in an amount
equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of
such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided,
however, each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for
the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19.
2.19. Increased Costs; Capital Adequacy.
(a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section 2.20 (which shall be controlling with respect to
the matters covered thereby), in the event that any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall
determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that (A) any law, treaty or
governmental rule,
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regulation or order, or any change therein or in the interpretation, administration or application thereof (regardless of whether the underlying law,
treaty or governmental rule, regulation or order was issued or enacted prior to the date hereof), including the introduction of any new law, treaty or
governmental rule, regulation or order but excluding solely proposals thereof, or any determination of a court or Governmental Authority, in each
case that becomes effective after the date hereof, or (B) any guideline, request or directive by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law) or any implementation rules or interpretations of previously issued
guidelines, requests or directives, in each case that is issued or made after the date hereof: (i) subjects such Lender (or its applicable lending
office) or any company controlling such Lender to any additional Tax (other than (A) Indemnified Taxes, (B) Taxes described in clauses
(b) through (d) of the definition of Excluded Taxes and (C) any Tax on the overall net income of such Lender) with respect to this Agreement or
any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending
office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit, liquidity, compulsory loan, FDIC insurance or similar requirement
against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that
are reflected in the definition of “Adjusted Eurodollar Rate”) or any company controlling such Lender; or (iii) imposes any other condition, cost or
expense (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or any company controlling such
Lender or such Lender’s obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to
such Lender of agreeing to make, making, continuing, converting or maintaining Loans hereunder or to reduce any amount received or receivable
by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different
method of calculating, interest or in a lump sum or otherwise as such Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to
Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this Section 2.19(a), which statement shall be conclusive and binding upon all parties hereto absent manifest
error.
(b) Capital Adequacy Adjustment. In the event that any Lender (which term shall include Issuing Bank for purposes of this
Section 2.19(b)) shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties
hereto) that (A) the adoption, effectiveness, phase-in or applicability of any law, rule or regulation (or any provision thereof) regarding capital
adequacy or liquidity, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or (B) compliance by any Lender (or its applicable lending office) or
any company controlling such Lender with any guideline, request or directive regarding capital adequacy or liquidity (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable agency, in each case after the date hereof, has or would have the
effect of reducing the rate of
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return on the capital of such Lender or any company controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or
Revolving Commitments, or Letters of Credit, or participations therein or other obligations hereunder with respect to the Loans or the Letters of
Credit to a level below that which such Lender or such controlling company could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of such Lender or such controlling company with regard to capital
adequacy), then from time to time, within five Business Days after receipt by Borrower from such Lender of the statement referred to in the next
sentence, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling company on
an after-tax basis for such reduction. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth
in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall be
conclusive and binding upon all parties hereto absent manifest error. For the avoidance of doubt, subsections (a) and (b) of this Section 2.19 shall
apply to all requests, rules, guidelines or directives issued by any United States or foreign regulatory authority (i) under or in connection with the
implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) in connection with the implementation of the
recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any
successor or similar authority), regardless of the date adopted, issued, promulgated or implemented.
(c) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.19 shall not
constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required
to compensate a Lender or an Issuing Bank pursuant to this Section 2.19 for any increased costs incurred or reductions suffered more than nine
(9) months prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the change in law, regulation or
statute giving rise to such increased costs or reductions, and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor
(except that, if the change in law, regulation or statute giving rise to such increased costs or reductions is retroactive, then the nine (9) month
period shall be extended to include the period of retroactive effect thereof).
2.20. Taxes; Withholding, Etc.
(a) Payments to Be Free and Clear. All sums payable by or on behalf of any Credit Party hereunder and under the other Credit
Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax
imposed, levied, collected, withheld or assessed by any Governmental Authority.
(b) Withholding of Taxes. If any Credit Party or any other Person acting as a withholding agent is (in such withholding agent’s
reasonable good faith discretion) required by law to make any deduction or withholding on account of any such Tax from any sum paid or payable
by any Credit Party to Administrative Agent or any Lender (which term shall include Issuing Bank for purposes of this Section 2.20(b)) under any
of the Credit Documents: (i) Borrower shall notify Administrative Agent of any such requirement or any change in any such requirement as soon
as Borrower becomes aware of it; (ii) the applicable withholding agent shall be entitled to make any such deduction or withholding and shall timely
pay, or cause to be paid,
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the full amount of any such Tax deducted or withheld to the relevant Governmental Authority in accordance with applicable law before the date on
which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or (if that
liability is imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of Administrative Agent or such
Lender; (iii) unless otherwise provided in this Section 2.20, the sum payable by such Credit Party in respect of which the relevant deduction,
withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or
payment (including such deductions and withholdings applicable to additional sums payable under this Section), Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or
payment been required or made; and (iv) within thirty days after the due date of payment of any Tax which it is required by clause (ii) above to
pay, Borrower shall deliver to Administrative Agent evidence satisfactory to the other affected parties of such deduction, withholding or payment
and of the remittance thereof to the relevant Governmental Authority; provided, Borrower shall not be required to pay any additional amounts to
any Lender under clause (iii) above with respect to any Excluded Taxes of any Lender.
(c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a United States person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender”) shall, to the extent such Lender is
legally able to do so, deliver to Administrative Agent for transmission to Borrower, on or prior to the Closing Date (in the case of each Lender
listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Borrower or Administrative Agent
(each in the reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN, W-8BEN-E, W-8ECI, W-8EXP,
W-8IMY and/or any other form prescribed by applicable law (or, in each case, any successor forms), properly completed and duly executed by
such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Borrower to establish that
such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if such Lender is not a
“bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code, a Certificate re Non-Bank Status together with two original
copies of Internal Revenue Service Form W-8BEN (or any successor form), properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested by Borrower to establish that such Lender is not subject to
(or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to any payments to such Lender of
interest payable under any of the Credit Documents. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of
the Internal Revenue Code) for United States federal income tax purposes (a “U.S. Lender”) and is not an exempt recipient within the meaning of
Treasury Regulation Section 1.6049-4(c) shall deliver to Administrative Agent and Borrower on or prior to the Closing Date (or, if later, on or prior
to the date on which such Lender becomes a party to this Agreement) two original copies of Internal Revenue Service Form W-9 (or any successor
form), properly completed and duly executed by such Lender, certifying that such U.S. Lender is
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entitled to an exemption from United States backup withholding tax, or otherwise prove that it is entitled to such an exemption. Each Lender
required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this
Section 2.20(c) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a
lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such
Lender shall promptly deliver to Administrative Agent for transmission to Borrower two new original copies of Internal Revenue Service Form
W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, W-8IMY, W-9 and/or any other form prescribed by applicable law (or, in each case, any successor form),
or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN (or any successor form), as the case may be,
properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably
requested by Borrower to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with
respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and Borrower of its inability to deliver any such
forms, certificates or other evidence. Borrower shall not be required to pay any additional amount to any Lender under Section 2.20(b)(iii) if such
Lender shall have failed (1) to deliver the forms, certificates or other evidence required by this Section 2.20(c) or (2) to notify Administrative Agent
and Borrower of its inability to deliver any such forms, certificates or other evidence, as the case may be; provided, if such Lender shall have
satisfied the requirements of this Section 2.20(c) on the Closing Date or on the date of the Assignment Agreement pursuant to which it became a
Lender, as applicable, nothing in this last sentence of Section 2.20(c) shall relieve Borrower of its obligation to pay any additional amounts
pursuant this Section 2.20 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described herein. Notwithstanding anything
in this clause (c) to the contrary, the completion, execution and submission of such documentation (other Internal Revenue Service Form W-8BEN,
W-8BEN-E, W-8ECI, W-8EXP, W-8IMY or W-9 (or, in each case, any successor form) or a Certificate re Non-Bank Status) shall not be required if in
the 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.
(d) Notwithstanding anything to the contrary, Borrower shall not be required to pay any additional amount pursuant to Section 2.20(b)
with respect to any United States federal withholding tax imposed on any “withholdable payments” payable to a recipient as a result of the failure
of such recipient to satisfy the applicable requirements as set forth in FATCA.
(e) Without limiting the provisions of Section 2.20(b), the Credit Parties shall timely pay all Other Taxes to the relevant Governmental
Authorities in accordance with applicable law, or at the option of Administrative Agent, timely reimburse it for the payment of any Other Taxes,
upon submission of reasonable proof of such payment. The applicable Credit Party shall deliver to Administrative Agent official receipts or other
evidence of such payment reasonably satisfactory to Administrative Agent in respect of any Other Taxes payable hereunder promptly after
payment of such Other Taxes.
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(f) The Credit Parties shall jointly and severally indemnify each Beneficiary for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Beneficiary or required
to be withheld or deducted from a payment to such Beneficiary 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 such Credit Party shall be conclusive absent manifest error. Such payment shall be due within thirty
(30) days of such Credit Party’s receipt of such certificate.
(g) 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 2.20 (including additional amounts pursuant to this Section 2.20), 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 2.20 with respect to the Taxes giving rise to
such refund), net of all 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 paragraph (g) (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 paragraph (g), in no event will the indemnified party be required to pay any amount to an
indemnifying party pursuant to this paragraph (g) 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 indemnification payments or additional amounts giving rise to such refund had never
been paid. This paragraph 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.
(h) 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 the Borrower and the Administrative Agent at the time or times prescribed by Law and at
such time or times reasonably requested by the Borrower or the 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 the Borrower or the
Administrative Agent as may be necessary for the Borrower and the 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 (h), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
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2.21. Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes of this Section 2.21) agrees that, as promptly
as practicable after the officer of such Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of the
occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such
Lender to receive payments under Section 2.18, 2.19 or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected
Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be
required to be paid to such Lender pursuant to Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans or Letters of Credit through such other office
or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or
Letters of Credit or the interests of such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this
Section 2.21 unless Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described
above. A certificate as to the amount of any such expenses payable by Borrower pursuant to this Section 2.21 (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive absent
manifest error.
2.22. Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) 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 Section 8 or otherwise) or received by
Administrative Agent from a Defaulting Lender pursuant to Section 10.4 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, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to Issuing Bank or Swing Line Lender
hereunder; third, to Cash Collateralize Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with
Section 2.22(d); fourth, as Borrower may request (so long as no Default or Event of Default shall have occurred and be continuing), 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; fifth, if so determined by Administrative Agent and Borrower, to be held in a Deposit Account and
released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this
Agreement and (y) Cash Collateralize Issuing Bank’s future Fronting Exposure with respect to such Defaulting Lender with respect to future
Letters of Credit issued under this Agreement, in
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accordance with Section 2.22(d); sixth, to the payment of any amounts owing to the Lenders, Issuing Bank or Swing Line Lender as a result
of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Bank or Swing Line Lender against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of
Default shall have occurred and be continuing, to the payment of any amounts owing to Borrower as a result of any judgment of a court of
competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement; and eighth, 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 or reimbursement obligations with respect to Letters of Credit in respect
of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit
were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the
Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting
Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans are held by the
Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.22(a)(iii). 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 2.22(a)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
(ii) Certain Fees.
(A) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.11(a) for any period during which that
Lender is a Defaulting Lender (and Borrower shall not be required to pay any such fee that otherwise would have been required
to have been paid to that Defaulting Lender); provided such Defaulting Lender shall be entitled to receive fees pursuant to
Section 2.11(a)(ii) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata
Share of the stated amount of the Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.22(d).
(B) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, Borrower
shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with
respect to such Defaulting Lender’s participation in Letters of Credit or Swing Line Loans that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iii) below, (y) pay to Issuing Bank the amount of any such fee otherwise payable to
such Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (z) not
be required to pay the remaining amount of any such fee.
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(iii) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in
Letters of Credit and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata
Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in
Section 3.2 are satisfied at the time of such reallocation (and, unless Borrower shall have otherwise notified Administrative Agent at such
time, Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation
does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving
Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender
arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such NonDefaulting Lender’s increased exposure following such reallocation.
(iv) Cash Collateral. If the reallocation described in clause (iii) above cannot, or can only partially, be effected, Borrower shall,
without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize Issuing Bank’s Fronting Exposure in
accordance with the procedures set forth in Section 2.22(d).
(b) Defaulting Lender Cure. If Borrower, Administrative Agent and each Swing Line Lender and Issuing Bank 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 (which may include arrangements with respect to any Cash Collateral), 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 and funded and unfunded participations in Letters of Credit and Swing Line Loans to be
held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section 2.22(a)(iii), 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 Borrower 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 having been a Defaulting Lender.
(c) New Letters of Credit. So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, extend, renew or
increase any Letter of Credit unless it is satisfied that the participations in any existing Letters of Credit as well as the new, extended, renewed or
increased Letter of Credit has been or will be fully allocated among the Non-Defaulting Lenders in a manner consistent with clause (a)(iii) above
and such Defaulting Lender shall not participate therein except to the extent such Defaulting Lender’s participation has been or will be fully Cash
Collateralized in accordance with Section 2.22(d).
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(d) Cash Collateral. At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of
Administrative Agent or Issuing Bank (with a copy to Administrative Agent) Borrower shall Cash Collateralize such Issuing Bank’s Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.22(a)(iii) and any Cash Collateral provided by such
Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(i) Grant of Security Interest. Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby
grants to Collateral Agent, for the benefit of the applicable Issuing Bank, and agrees to maintain, a first priority security interest in all such
Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant
to clause (ii) below. If at any time Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other
than Administrative Agent and the applicable Issuing Bank as herein provided, or that the total amount of such Cash Collateral is less than
the Minimum Collateral Amount, Borrower will, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the
Defaulting Lender).
(ii) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this
Section 2.22 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in
respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for
which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(iii) Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce Issuing Bank’s Fronting
Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.22 following (i) the elimination of the applicable
Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender) or (ii) the determination by
Administrative Agent and such Issuing Bank that there exists excess Cash Collateral; provided that, subject to the other provisions of this
Section 2.22, the Person providing Cash Collateral and such Issuing Bank may agree that Cash Collateral shall be held to support future
anticipated Fronting Exposure or other obligations; provided further that to the extent that such Cash Collateral was provided by Borrower,
such Cash Collateral shall remain subject to the security interest granted pursuant to the Credit Documents.
(e) Lender Counterparties. So long as any Lender is a Defaulting Lender, such Lender shall not be a Lender Counterparty with respect
to any Hedge Agreement entered into while such Lender was a Defaulting Lender.
2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender
(an “Increased-Cost Lender”) shall give notice to Borrower that such Lender is an Affected Lender or that such Lender is
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entitled to receive payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or
which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five
Business Days after Borrower’s request for such withdrawal; or (b) (i) any Lender shall become and continues to be a Defaulting Lender, and
(ii) such Defaulting Lender shall fail to cure the default pursuant to Section 2.22(b) within five Business Days after Borrower’s request that it cure
such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have been obtained but the consent of one or more
of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each
such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (a “Terminated Lender”), Borrower may, by giving written notice to
Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender
hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each
a “Replacement Lender”) in accordance with the provisions of Section 10.6 and Borrower shall pay the fees, if any, payable thereunder in
connection with any such assignment from an Increased-Cost Lender, a Non-Consenting Lender or a Defaulting Lender; provided, (1) on the date
of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal
of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that have been
funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued,
but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Borrower shall pay any
amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; or otherwise as if it were a prepayment and (3) in the event
such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in
respect of which such Terminated Lender was a Non-Consenting Lender; provided, Borrower may not make such election with respect to any
Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of such election, Borrower shall have caused each outstanding
Letter of Credit issued thereby to be cancelled or Cash Collateralized in the Minimum Collateral Amount. Upon the prepayment of all amounts
owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall
no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as
to such Terminated Lender. Each Lender agrees that if Borrower exercises its option hereunder to cause an assignment by such Lender as a NonConsenting Lender or Terminated Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all
documentation necessary to effectuate such assignment in accordance with Section 10.6. In the event that a Lender does not comply with the
requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and
directs Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with
Section 10.6 on behalf of a Non-Consenting Lender or Terminated Lender and any such documentation so executed by Administrative Agent shall
be effective for purposes of documenting an assignment pursuant to Section 10.6. Any removal of Barclays or its successor as a Defaulting Lender
pursuant to this Section shall also constitute the removal of Barclays or its successor as Administrative Agent and Swing Line Lender pursuant to
Section 9.7.
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2.24. Incremental Facilities. Borrower may by written notice to Administrative Agent elect to request, prior to the Revolving Commitment
Termination Date, an increase to the existing Revolving Commitments (any such increase, the “New Revolving Loan Commitments”) by an amount
not in excess of $175,000,000 in the aggregate. Such New Revolving Loan Commitments shall not be less than $2,000,000 individually (or such
lesser amount which shall be approved by Administrative Agent), and shall be in integral multiples of $100,000 in excess of that amount. Each such
notice shall specify (A) the date (each, an “Increased Amount Date”) on which Borrower proposes that the New Revolving Loan Commitments
shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to Administrative Agent
and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender”) to whom Borrower
proposes any portion of such New Revolving Loan Commitments be allocated and the amounts of such allocations; provided that Administrative
Agent may elect or decline to arrange such New Revolving Loan Commitments in its sole discretion and any Lender approached to provide all or a
portion of the New Revolving Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment; and
provided further that any New Revolving Loan Lender must be reasonably satisfactory to the Swing Line Lender and the Issuing Banks. Such New
Revolving Loan Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall
exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments; (2) both before and after giving
effect to such New Revolving Loan Commitments each of the conditions set forth in Section 3.2 shall be satisfied (provided that with respect to
any New Revolving Loans that shall be used in whole or in part to finance a Permitted M&A Transaction, the conditions precedent to the
extension of credit thereunder regarding the accuracy of representations and warranties (other than “Specified Representations” and specified
acquisition agreement representations of a type similar to the “Specified Acquisition Agreement Representations”) and the requirement of the
absence of a Default or Event of Default may be waived by the New Revolving Loan Lenders or limited as mutually agreed upon by Borrower and
the New Revolving Loan Lenders (other than an Event of Default arising under Section 8.1(a), (f) or (g)); (3) Borrower shall be in pro forma
compliance with the covenants set forth in Section 6.7(a) and Section 6.7(b) as of the last day of the most recently ended Fiscal Quarter after giving
effect to such New Revolving Loan Commitments; (4) the New Revolving Loan Commitments shall be effected pursuant to one or more Joinder
Agreements executed and delivered by Borrower, the New Revolving Loan Lender, and Administrative Agent, and each of which shall be recorded
in the Register and each New Revolving Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) Borrower shall make any
payments required pursuant to Section 2.18(c) in connection with the New Revolving Loan Commitments and (6) Borrower shall deliver or cause to
be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction.
On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms
and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan
Lenders shall purchase from each of the Revolving Lenders, at the
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principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as
shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing
Revolving Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of
such New Revolving Loan Commitments to the Revolving Commitments, (b) each New Revolving Loan Commitment shall be deemed for all
purposes a Revolving Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan
and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating
thereto.
Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect
thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders, and (z) the respective interests in such Revolving
Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24.
The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans. Each Joinder Agreement may, without the
consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in
the opinion of Administrative Agent, to effect the provision of this Section 2.24.
SECTION 3. CONDITIONS PRECEDENT
3.1. Closing Date. The obligation of each Lender or Issuing Bank, as applicable, to make a Credit Extension on the Closing Date is subject to
the satisfaction, or waiver in accordance with Section 10.5, of the following conditions on or before the Closing Date:
(a) Credit Documents. Administrative Agent and Arrangers shall have received sufficient copies of each Credit Document as
Administrative Agent shall request, originally executed and delivered by each applicable Credit Party.
(b) Organizational Documents; Incumbency. Administrative Agent and Arrangers shall have received, in respect of each Credit Party,
(i) sufficient copies of each Organizational Document as Administrative Agent shall request, and, to the extent applicable, certified as of the
Closing Date or a recent date prior thereto by the appropriate Governmental Authority; (ii) signature and incumbency certificates of the officers of
such Credit Party that are executing the Credit Documents and the Funding Notice, in substantially the form of Exhibit M; (iii) resolutions of the
members of Holdings or its board of directors or similar governing body of such Credit Party approving and authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Closing
Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment;
and (iv) a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of incorporation, organization or
formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated the Closing Date or a
recent date prior thereto.
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(c) Organizational and Capital Structure. The organizational structure and capital structure of Holdings and its Subsidiaries shall be as
set forth on Schedule 4.1.
(d) Consummation of Acquisition. The Acquisition (including the assignment to the Borrower or a Restricted Subsidiary of the
Borrower of Holdings’ rights and interests under the Acquisition Agreement, the Joint Venture Buyout (as defined in the Acquisition Agreement)
and the direct or indirect acquisition by Parent of the remaining assets identified in the Acquisition Agreement), shall have been consummated in
accordance with the Acquisition Agreement.
(e) Transaction Costs. On or prior to the Closing Date, Borrower shall have delivered to Administrative Agent Borrower’s reasonable
best estimate of the Transaction Costs (other than fees payable to any Agent).
(f) Existing Indebtedness.
(i) On the Closing Date, Holdings and its Subsidiaries shall have (a) repaid in full all Indebtedness and other obligations
outstanding under, evidenced by or related to the Existing Credit Agreement, (b) terminated any commitments to lend or make other
extensions of credit thereunder, (c) made arrangements satisfactory to Administrative Agent with respect to the cancellation of any letters of
credit outstanding thereunder or the issuance of Letters of Credit to support the obligations of Holdings and its Subsidiaries with respect
thereto and (d) delivered to Administrative Agent a customary payoff letter (or other reasonably satisfactory confirmation of the foregoing)
and all documents or instruments necessary to release all Liens securing Indebtedness or other obligations of Holdings and its Subsidiaries
thereunder.
(ii) On the Closing Date (a) a notice of redemption with respect to the 10.25% Senior Notes due 2018 issued by First Wind
Capital, LLC shall have been delivered, the indenture relating to such notes shall have been satisfied and discharged, and all documentation
required to be delivered on the Closing Date pursuant to such indenture and the related security documents in connection with the release of
the collateral securing such notes shall have been delivered, and Administrative Agent and the Arrangers shall have received copies thereof,
(b) all indebtedness under the $291 million term loan B facility of the Edward joint venture of the Acquired Business shall have been repaid in
full, (c) all indebtedness under the Secured Promissory Note dated as of November 21, 2011, between Hawaiian Island Holdings, LLC, as the
borrower, and KeyBank National Association, as the lender, as amended by that certain Amendment No. 1 to Secured Promissory Note dated
as of November 19, 2012, as further amended by that certain Amendment No. 2 to Secured Promissory Note dated as of December 14, 2012, as
further amended by that certain Amendment No. 3 to Secured Promissory Note dated as of January 15, 2013 and as further amended by that
certain Amendment No. 4 to Secured Promissory Note dated as of March 10, 2014 shall have been repaid in full, (d) all indebtedness under
the Amended and Restated Reimbursement Agreement, dated as of July 25, 2013, among First Wind Utah Holdings, LLC, First Wind Utah
Portfolio, LLC, First Wind Holdings, LLC, First Wind Capital, LLC, First Wind Portfolio, LLC, financial institutions party thereto, BNP
Paribas, as Collateral Agent, Administrative
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Agent and as fronting bank, and other entities party thereto, shall have been repaid in full and all of the commitments thereunder shall have
been terminated, (e) all indebtedness (other than such indebtedness in an aggregate principal amount not to exceed $25 million) under the
credit agreements, promissory notes and other credit documents set forth on Schedule 3.1(f) shall have been repaid in full (or to the extent
applicable, cash collateralized or supported by a back-to-back letter of credit) and (f) a customary payoff letter (or other reasonably
satisfactory confirmation of satisfaction of the foregoing clauses (a) through (e)) and all documents or instruments necessary to release all
Liens securing Indebtedness or other obligations of Holdings and its Subsidiaries thereunder shall have been delivered to Administrative
Agent.
(iii) After giving effect to the consummation of transactions contemplated by the Related Agreements, neither the Borrower nor
its Subsidiaries (including the Acquired Business) will have any third party Indebtedness for borrowed money other than (i) other
Indebtedness of the Borrower or its Subsidiaries (other than the Acquired Business) outstanding on November 17, 2014, (ii) the Senior Notes
and any Indebtedness incurred under this Agreement, (iii) Indebtedness of the Acquired Business permitted to be incurred or outstanding
on or prior to the Closing Date pursuant to the Acquisition Agreement as in effect on the date hereof, (iv) except to the extent required to be
repaid in accordance with the preceding sentence, any non-recourse project financing, (v) Indebtedness of TerraForm Warehouse, LLC to be
incurred for purposes of developing certain subsidiaries of the Acquired Business and selling such subsidiaries to the Borrower, (vi) for the
avoidance of doubt, any other Indebtedness of the type described in clauses (a) - (m) or clause (r) of Section 6.1 hereof, (vii) Indebtedness
under the credit agreements, promissory notes and other credit documents set forth on Schedule 3.1(f) in an aggregate principal amount not
to exceed $25 million for all such indebtedness, and (viii) Oakfield Wind, LLC’s LC Loan Notes dated as of April 30, 2014 and May 15, 2014,
Amended and Restated Construction Loan dated as of May 15, 2014 and Amended and Restated Financing Agreement dated as of May 15,
2014 and (ix) other debt approved by the Administrative Agent and the Arrangers in their reasonable discretion.
(g) Governmental Authorizations and Consents. The Buyer’s Approvals and the Seller’s Approvals (each as defined in the
Acquisition Agreement) shall have been duly obtained, made or given and shall be in full force and effect, and all terminations or expirations of
waiting periods imposed by any Governmental Authority (as defined in the Acquisition Agreement) shall have occurred.
(h) Personal Property Collateral. In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First
Priority security interest in the personal property Collateral, each Credit Party shall have delivered to Collateral Agent:
(i) evidence satisfactory to Collateral Agent of the compliance by each Credit Party of their obligations under the Pledge and
Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC
financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities
accounts as provided therein);
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(ii) a completed Collateral Questionnaire dated the Closing Date and executed by an Authorized Officer of each Credit Party,
together with all attachments contemplated thereby;
(iii) to the extent applicable, fully executed and notarized Intellectual Property Security Agreements, in proper form for filing or
recording in all appropriate places in all applicable jurisdictions, memorializing and recording the encumbrance of the Intellectual Property
Assets listed in Schedule 5.2(II) to the Pledge and Security Agreement;
(iv) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and
perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case
in form and substance reasonably satisfactory to Collateral Agent; and
(v) evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to
be executed and delivered any other agreement, document and instrument and made or caused to be made any other filing and recording
(other than as set forth herein) reasonably required by Collateral Agent to create in favor of Collateral Agent, for the benefit of Secured
Parties, a valid, perfected First Priority security interest in the personal property Collateral.
(i) Financial Statements; Projections. Administrative Agent and Arrangers shall have received from Borrower (i) the Historical Financial
Statements and (ii) pro forma consolidated balance sheets and statements of income of Parent reflecting the transactions contemplated by the
Credit Documents and the Related Agreements to occur on or prior to the Closing Date, which pro forma financial statements shall satisfy the
requirements of Article 11 of Regulation S-X for a registration statement on Form S-1.
(j) Evidence of Insurance. Collateral Agent shall have received a certificate from the applicable Credit Party’s insurance broker or other
evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with
endorsements naming Collateral Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent
required under Section 5.5.
(k) Opinions of Counsel to Credit Parties. Agents and Lenders and their respective counsel shall have received originally executed
copies of the favorable written opinions of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for Credit Parties, as to such matters as
Administrative Agent or Arrangers may reasonably request, dated as of the Closing Date and in form and substance reasonably satisfactory to
Administrative Agent and Arrangers (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
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(l) Fees. Borrower shall have paid to each Agent the fees payable on or before the Closing Date referred to in
Section 2.11(e) and all expenses payable pursuant to Section 10.2 which have accrued to the Closing Date, in each case for which invoices have
been presented at least one day prior to the Closing Date.
(m) Solvency Certificate. On the Closing Date, Administrative Agent and Arrangers shall have received a Solvency Certificate from the
Borrower.
(n) Closing Date Certificate. Borrower shall have delivered to Administrative Agent and Arrangers an originally executed Closing Date
Certificate, together with all attachments thereto.
(o) PATRIOT Act. At least 5 Business Days prior to the Closing Date, the Lenders shall have received all documentation and other
information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations,
including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”), to the extent requested at least 10 days prior to the Closing Date.
(p) Closing Date Material Adverse Effect. Since November 17, 2014, there shall have been no event, occurrence or development that,
individually or in the aggregate has had a Closing Date Material Adverse Effect.
(q) Accuracy of Representations. The Specified Acquisition Agreement Representations and the Specified Representations will be
true and correct in all material respects (except that any such representation qualified by materiality or material adverse effect will be true and
correct in all respects).
Notwithstanding anything to the contrary in this Section 3.1, to the extent any security interest in any of the intended Collateral is not or
cannot be provided and/or perfected on the Closing Date (other than any collateral the security interest in which may be perfected by the filing of
a UCC financing statement or the delivery of certificated stock certificates) after Credit Parties’ use of commercially reasonable efforts to do so,
then the provision and/or perfection of a security interest in such Collateral will not constitute a condition precedent to the obligation of each
Lender to make a Credit Extension on the Closing Date but such security interest(s) will be perfected as required by Section 5.18.
3.2. Conditions to Each Credit Extension.
(a) Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit (except with
respect to clauses (iii) and (iv) below, Letters of Credit issued in connection with the consummation of the Acquisition), on any Credit Date,
including the Closing Date (except with respect to (vi) below), is subject to the satisfaction, or waiver in accordance with Section 10.5, of the
following conditions precedent:
(i) Funding Notice. Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice,
as the case may be, executed by an Authorized Officer in accordance with Section 2.2(b) or Section 2.4(b), as applicable.
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(ii) Total Utilization of Revolving Commitments. After making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect.
(iii) Accuracy of Representations and Warranties. As of such Credit Date, the representations and warranties contained herein
and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though
made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each
case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by
materiality in the text thereof.
(iv) No Event of Default or a Default. As of such Credit Date, no event shall have occurred and be continuing or would result
from the consummation of the applicable Credit Extension and the transactions to be consummated on such Credit Date that would
constitute an Event of Default or a Default.
(v) Letter of Credit. On or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other
information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in
connection with the issuance of such Letter of Credit. In the case of a Letter of Credit to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or
exchange controls which in the reasonable opinion of the applicable Issuing Bank would make it impracticable for such Credit Extension to
be denominated in the relevant Alternative Currency.
(vi) Fees. Borrower shall have paid to Agent, or instructed Agent to pay with the proceeds of such Credit Extension, the fees
payable on or before such Credit Date referred to in Section 2.11(a) and all expenses payable pursuant to Section 10.2 which have accrued to
such Credit Date and been invoiced to Borrower.
(b) Notices. Any Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent. In lieu of delivering
a Notice, Borrower may give Administrative Agent telephonic notice by the required time of any proposed borrowing, conversion/continuation or
issuance of a Letter of Credit, as the case may be; provided each such notice shall be promptly confirmed in writing by delivery of the applicable
Notice to Administrative Agent on or before the close of business on the date that the telephonic notice is given. In the event of a discrepancy
between the telephone notice and the written Notice, the written Notice shall govern. In the case of any Notice that is irrevocable once given, if
Borrower provides telephonic notice in lieu thereof, such telephone notice shall also be irrevocable once given. Neither Administrative Agent nor
any Lender shall incur any liability to Borrower in
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acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized
officer or other person authorized on behalf of Borrower or for otherwise acting in good faith.
(c) Acquisition Closing. Notwithstanding anything in this Agreement or any other Credit Document to the contrary:
(i) in the event that the Closing Date has occurred and all of the conditions set forth in Sections 3.1 and 3.2(a) have been satisfied (or
waived in accordance with Section 10.5) except with respect to Section 3.1(d), 3.1(f)(ii), 3.1(g), 3.1(p) and 3.1(q), in each case solely to the extent
such conditions relate to the Acquisition (the “Acquisition Closing Conditions”), then each Lender shall have the obligation to make Loans, and
the Issuing Bank to issue Letters of Credit, so long as, after making the Credit Extensions requested on the applicable Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect less $335.0 million (such $335.0 million, the
“Suppressed Availability”) (it being understood and agreed that (x) with respect to the Closing Date Certificate delivered on the Closing Date, the
Borrower shall not be required to include the certifications in Sections 6 or 7 of Exhibit F-1 hereto and (y) Schedules 4.1 and 4.2 to be delivered on
the Closing Date shall be prepared as giving effect to the consummation of the Acquisition);
(ii) upon satisfaction (or waiver in accordance with Section 10.5) of the Acquisition Closing Conditions (with all references in the
Acquisition Closing Conditions to the Closing Date being deemed references to the date the Acquisition is consummated for purposes of this
Section 3.2(c)(ii)), the Suppressed Availability shall be eliminated (without any additional consent, approval or action on the part of any Lender or
Agent); provided that (A) to the extent not previously delivered on the Closing Date, Administrative Agent shall have received originally executed
copies of the favorable written opinions of regulatory counsels for Credit Parties as to such matters as Administrative Agent may request in form
and substance reasonably satisfactory to Administrative Agent, (B) Administrative Agent shall have received a Solvency Certificate from the
Borrower, and (C) Borrower shall have delivered to Administrative Agent an originally executed Closing Date Certificate, together with all
attachments thereto (it being understood that the Borrower shall not be required to include the certifications in Sections 4 or 5 of Exhibit F-1
hereto); and
(iii) if the Borrower fails to consummate the Acquisition by June 1, 2015, (x) the aggregate amount of the Revolving Commitments shall
be permanently reduced by the Suppressed Availability and (y) CAFD for the Fiscal Quarters ended June 30, 2014, September 30, 2014 and
December 31, 2014 shall be deemed to be $35.6 million, $42.8 million and $16.3 million, respectively.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Agents, Lenders and Issuing Bank to enter into this Agreement and to make each Credit Extension to be made thereby,
each Credit Party represents and warrants to each Agent, Lender and Issuing Bank, on the Closing Date and, subject to the materiality qualifier set
forth in Section 3.2(a)(iii), on each Credit Date, that the following statements are true and correct:
4.1. Organization; Requisite Power and Authority; Qualification. Each of Holdings and its Subsidiaries (other than Immaterial Subsidiaries)
(a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and, as of the Closing Date, as
identified in Schedule 4.1, (b) has all requisite power and authority (i) to own and operate its properties, (ii) to carry on its business as now
conducted and as proposed to be conducted and (iii) to enter into the Credit Documents to which it is a party and to carry out the transactions
contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and
could not be reasonably expected to have, a Material Adverse Effect.
4.2. Equity Interests and Ownership. The Equity Interests of each of Holdings and its Subsidiaries has been duly authorized and validly
issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2 or as permitted by Section 6.2(u), as of the Closing Date, there is
no existing option, warrant, call, right, commitment or other agreement to which Borrower or any of its Subsidiaries is a party requiring, and there is
no membership interest or other Equity Interests of Borrower or any of its Subsidiaries outstanding which upon conversion or exchange would
require, the issuance by Borrower or any of its Subsidiaries of any additional membership interests or other Equity Interests of Borrower or any of
its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or
other Equity Interests of Borrower or any of its Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Holdings and each of its
Subsidiaries in their respective Subsidiaries as of the Closing Date.
4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have been duly authorized by all necessary action
on the part of each Credit Party that is a party thereto.
4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not (a) violate (i) any provision of any law or any governmental rule
or regulation applicable to Holdings or any Credit Party or, in any material respect, any other Subsidiary of Holdings, (ii) any of the Organizational
Documents of Holdings or any of its Subsidiaries, or (iii) any order, judgment or decree of any court or other agency of government binding on
Holdings or any of its Subsidiaries except, in this clause (a)(iii), where such violation could not reasonably be expected to have a Material Adverse
Effect; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of
Holdings or any of its Subsidiaries except to the extent such conflict, breach or default could not reasonably be expected to have a Material
Adverse Effect; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of Holdings or any of its
Subsidiaries (other than any Liens created under any of the Credit Documents in favor of Collateral Agent, for the benefit of the Secured Parties);
or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of
Holdings or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the Closing Date and except for any
such approvals or consents the failure of which to obtain will not have a Material Adverse Effect.
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4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties
and the consummation of the transactions contemplated by the Credit Documents do not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority except for filings and recordings with respect to the Collateral to be made, or
otherwise delivered to Collateral Agent for filing and/or recordation, as of the Closing Date.
4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the
legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by
equitable principles relating to enforceability.
4.7. Historical Financial Statements. The Historical Financial Statements were prepared in conformity with GAAP, Canadian GAAP,
UK GAAP or IFRS, as applicable, and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons
described in such financial statements as of the respective dates thereof and the results of operations and cash flows, on a consolidated basis, of
the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes
resulting from audit and normal year-end adjustments. As of the Closing Date, neither Holdings nor any of its Subsidiaries has any contingent
liability or liability for Taxes, long-term lease or unusual forward or long-term commitment that is not reflected in the Historical Financial Statements
or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Holdings and any of its Subsidiaries taken as a whole. The representations of each Credit Party in this Section 4.7 about
Historical Financial Statements for each project acquired by or to be acquired by Holdings or its Subsidiary from a Person who is not an Affiliate of
Holdings (or from a Person who is an Affiliate of Holdings if such Affiliate acquired such project after January 1, 2014) are made to the Credit
Parties’ knowledge for periods prior to such acquisition.
4.8. Projections. On and as of the Closing Date, the consolidated projections of Holdings and its Subsidiaries for the period of Fiscal Year
2015 through and including Fiscal Year 2019, on a quarterly basis for Fiscal Year 2015 and Fiscal Year 2016 and a yearly basis thereafter (the
“Projections”), are based on good faith estimates and assumptions made by the management of Holdings; provided, the Projections are not to be
viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the
differences may be material; provided further, as of the Closing Date, management of Holdings believed that the Projections were reasonable and
attainable.
4.9. No Material Adverse Effect. No event, circumstance or change exists that has caused or evidences, or could reasonably be expected to
result in, either in any case or in the aggregate, a Material Adverse Effect.
4.10. No Restricted Junior Payments. As of and following the Closing Date, neither Holdings nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property for, any Restricted Junior Payment or agreed to do so except as
permitted pursuant to Section 6.4.
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4.11. Adverse Proceedings, Etc. There are no Adverse Proceedings, individually or in the aggregate, that could reasonably be expected to
have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental
Laws) that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (b) is subject to or in default with
respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
4.12. Payment of Taxes. All income and other material Tax returns and reports of Holdings and its Subsidiaries required to be filed by any of
them have been timely filed, and all Taxes shown on such tax returns to be due and payable and all material assessments, fees and other
governmental charges upon Holdings and its Subsidiaries and upon their respective properties, assets, income, businesses and franchises which
are due and payable have been paid when due and payable (other than Taxes, assessments, fees or other governmental charges being contested in
good faith by appropriate proceedings). There is no proposed Tax deficiency, in writing, against Holdings or any of its Subsidiaries which is not
being actively contested by Holdings or such Subsidiary in good faith and by appropriate proceedings; provided, such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP, shall have been made or provided therefor. Holdings is treated as a
partnership for U.S. federal income tax purposes.
4.13. Properties.
(a) Title. Each of Holdings and its Subsidiaries has (i) good and legal title to (in the case of fee interests in real property), (ii) valid
leasehold interests in (in the case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the case of licensed interests in
intellectual property) and (iv) good title to (in the case of all other personal property), all of their respective properties and assets reflected in their
respective Historical Financial Statements referred to in Section 4.7 and in the most recent financial statements delivered pursuant to Section 5.1, in
each case except, with respect to any Non-Recourse Subsidiary, as could not reasonably be expected to have a Material Adverse Effect. Except as
permitted by this Agreement, all such properties and assets are free and clear of Liens.
(b) Real Estate. As of the Closing Date, Schedule 4.13 contains a true, accurate and complete list of (i) all Real Estate Assets (excluding
easements and other ancillary real property interests that are not fee owned or leased), and (ii) all leases, subleases or assignments of leases
(together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting each Real Estate Asset of any Credit
Party, regardless of whether such Credit Party is the landlord or tenant (whether directly or as an assignee or successor in interest) under such
lease, sublease or assignment. Each agreement listed in clause (ii) of the immediately preceding sentence is in full force and effect and Holdings
does not have knowledge of any default that has occurred and is continuing thereunder that would reasonably
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be expected to result in a Material Adverse Effect, and each such agreement constitutes the legally valid and binding obligation of each applicable
Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles.
4.14. Environmental Matters. Neither Holdings nor any of its Subsidiaries nor any of their respective Facilities or operations are subject to
any outstanding written order, consent decree or settlement agreement with any Person relating to any currently applicable Environmental Law or
pursuant to any Environmental Claim that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Neither Holdings nor any of its Subsidiaries is subject to any pending or, to their knowledge, threatened, Environmental Claim, that individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect. To the knowledge of Holdings and its Subsidiaries, there are
and have been no events, conditions or occurrences that would reasonably be expected to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. To the
knowledge of Holdings and its Subsidiaries, compliance with all currently applicable Environmental Laws would not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of Holdings and its Subsidiaries, there are no activities, events,
conditions or occurrences with respect to Holdings or any of its Subsidiaries relating to their compliance with any Environmental Law or with
respect to any Release of Hazardous Materials that individually or in the aggregate has had or could reasonably be expected to have a Material
Adverse Effect.
4.15. No Defaults. Neither Holdings nor any of its Subsidiaries is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its Contractual Obligations, and no condition exists which, with the giving of notice or
the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any,
could not reasonably be expected to have a Material Adverse Effect.
4.16. Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the Material Contracts in effect on the Closing Date
(other than agreements not material to the business of Holdings and its Subsidiaries taken as a whole), and except as described thereon, all such
Material Contracts are in full force and effect and, to Holdings’ knowledge, no defaults currently exist thereunder that could reasonably be
expected to have a Material Adverse Effect.
4.17. Governmental Regulation. Neither Holdings nor any of its Subsidiaries is subject to regulation under the Investment Company Act of
1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or
any portion of the Obligations unenforceable. Neither Holdings nor any of its Subsidiaries is a “registered investment company” or a company
“controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in
the Investment Company Act of 1940.
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4.18. Federal Reserve Regulations; Exchange Act. (a) None of Holdings 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 buying or carrying Margin Stock.
(b) No portion of the proceeds of any Credit Extension shall be used in any manner, whether directly or indirectly, that causes or could
reasonably be expected to cause, such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X
of the Board of Governors or any other regulation thereof or to violate the Exchange Act.
4.19. Employee Matters. Neither Holdings nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against Holdings or any of its Subsidiaries, or
to the best knowledge of Holdings and Borrower, threatened against any of them before the National Labor Relations Board and no grievance or
arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries or
to the best knowledge of Holdings and Borrower, threatened against any of them, (b) no strike or work stoppage in existence or threatened
involving Holdings or any of its Subsidiaries, and (c) to the best knowledge of Holdings and Borrower, no union representation question existing
with respect to the employees of Holdings or any of its Subsidiaries and, to the best knowledge of Holdings and Borrower, no union organization
activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such
as is not reasonably likely to have a Material Adverse Effect.
4.20. Employee Benefit Plans. Borrower, each of the Guarantors and each of their respective ERISA Affiliates are in material compliance with
all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder
with respect to each Employee Benefit Plan, and have performed all their material obligations under each Employee Benefit Plan. Each Employee
Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service indicating that such Employee Benefit Plan is so qualified or is comprised of a master or prototype plan that has received
a favorable opinion letter from the Internal Revenue Service and nothing has occurred subsequent to the issuance of such determination letter or
opinion letter which would cause such Employee Benefit Plan to lose its qualified status. No material liability to the PBGC (other than required
premium payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under Title IV of ERISA has been or is
expected to be incurred by Borrower, any of the Guarantors or any of their ERISA Affiliates. No ERISA Event has occurred or is reasonably
expected to occur. Except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of Borrower or any of the
Guarantors. The present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Borrower,
any of the Guarantors or any of their ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial
assumptions specified for funding purposes in the most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current
value of the assets of such Pension Plan. As of the most recent valuation date for each Multiemployer Plan for which the actuarial
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report is available, the potential liability of Borrower, the Guarantors and their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA is zero. Borrower, each of the Guarantors and each of
their ERISA Affiliates have materially complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not
in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
4.21. Certain Fees. No broker’s or finder’s fee or commission will be payable with respect to the transactions contemplated hereby, except
as payable to Agents and Lenders.
4.22. Solvency. The Credit Parties and their Subsidiaries are, on a consolidated basis, Solvent.
4.23. Compliance with Statutes, Etc. Each of Holdings and its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the
requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of Holdings or
any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
4.24. Disclosure. The representations and warranties of any Credit Party contained in any Credit Document or in any other documents,
certificates or written statements furnished to any Agent or Lender by or on behalf of Holdings or any of its Subsidiaries for use in connection
with the transactions contemplated hereby (other than projections and pro forma financial information), when taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact (known to Holdings or Borrower, in the case of any document not furnished by
either of them) necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the
same were made. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and
assumptions believed by Holdings or Borrower to be reasonable at the time made, it being recognized by Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the
projected results. There are no facts known (or which should upon the reasonable exercise of diligence be known) to Holdings or Borrower (other
than matters of a general economic nature) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection
with the transactions contemplated hereby.
4.25. PATRIOT Act, Anti-Corruption, Sanctions. To the extent applicable, each Credit Party and each Subsidiary is in compliance, in all
material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States
Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) and any other
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enabling legislation or executive order relating thereto, and (ii) the PATRIOT Act. No part of the proceeds of the Loans or any drawing under any
Letter of Credit will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (“FCPA”). Each of the Credit Parties and their
respective directors, officers, agents, employees and, to the knowledge of any of the foregoing, any Person acting for or on behalf of the Credit
Parties or any of their Subsidiaries, has complied with, and will comply with, the FCPA, or any other applicable anti-bribery or anti-corruption law,
and it and they have not made, offered, promised or authorized, and will not make, offer, promise or authorize, whether directly or indirectly, any
payment, of anything of value to a Government Official while knowing or having a reasonable belief that all or some portion will be used for the
purpose of: (a) influencing any act, decision or failure to act by a Government Official in his or her official capacity, (b) inducing a Government
Official to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity or (c) securing
an improper advantage, in each case in order to obtain, retain or direct business, in each case, in violation of applicable law. None of the Credit
Parties, nor any of their respective Subsidiaries nor, to the knowledge of the Credit Parties, any director, officer, employee, agent, affiliate or
representative of the Credit Parties or any of their respective Subsidiaries, is a Person that is, or is owned or controlled by a Person that is (i) the
subject of any sanctions administered or enforced by the US Department of Treasury’s Office of Foreign Assets Control or the US State
Department (“Sanctions”) nor (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions
(including, without limitation, Cuba, North Korea, Sudan and Syria). None of the Credit Parties will, directly or indirectly, use the proceeds of the
Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner, or other Person to fund any
activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject
of Sanctions.
4.26. Energy Regulatory Matters.
(a) Each of the electrical generating facilities owned by Holdings or any of its Subsidiaries located in the United States is, or will be,
beginning at the time of first generating electric energy, (i) a small power production facility that is a qualifying facility (“QF”) under the Federal
Energy Regulatory Commission’s (“FERC’s”) regulations at 18 C.F.R. Part 292 (“PURPA Regulations”) under the Public Utility Regulatory Policies
Act of 1978 (“PURPA”) (such status as a QF “QF Status”); or, (ii) if not a QF, then owned or operated by an “Exempt Wholesale Generator” or
“EWG” within the meaning of the Public Utility Holding Company Act of 2005 (“PUHCA”) (such status as an EWG, “EWG Status”). The QF
Status of each such electrical generating facility that is a QF has been or will be, by the time such facility begins to generate electric energy, validly
obtained through certification or self-certification pursuant to the PURPA Regulations, or certification or self-certification with respect to such QF
Status is not required pursuant to 18 C.F.R. § 292.203(d). The EWG Status of any owner or operator of such electrical generating facility that is an
EWG has been or will be, by the time such facility begins to generate electric energy, validly obtained through determination or self-certification
pursuant to the FERC’s regulations at 18 C.F.R. Part 366 (“PUHCA Regulations”).
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(b) Each Subsidiary of Holdings that directly owns electrical generating facilities located outside of the United States is a foreign utility
company (“FUCO”) under the PUHCA Regulations.
(c) Holdings, SunEdison, and any of their Subsidiaries are not subject to, or are exempt from, regulation under the federal access to
books and records provisions of PUHCA (the “PUHCA Exemption”). Any of Holdings, SunEdison, and any Subsidiary of either that is a holding
company as defined under PUHCA, are holding companies under PUHCA solely with respect to one or more QFs, FUCOs or EWGs and are
entitled to the benefit of blanket authorization under Section 203(a)(2) of the Federal Power Act (“FPA”) pursuant to 18 C.F.R. § 33.1(c)(6) and (c)
(8).
(d) If and to the extent that Holdings or a Subsidiary of Holdings is subject to regulation under Sections 204, 205 and 206 of the FPA it
(i) makes all of its sales of electricity exclusively at wholesale, (ii) has authority to engage in wholesale sales of electricity at market-based rates,
and to the extent permitted under its market-based rate authority, other products and services at market-based rates, and (iii) has such waivers and
authorizations as are customarily granted to market-based rate sellers by FERC, including blanket authorization to issue securities and assume
liabilities pursuant to Section 204 of the FPA. Any such market-based rate authorizations and waivers pursuant to the previous sentence are not
subject to any pending challenge or investigation at FERC, and FERC has not issued any orders imposing a rate cap, mitigation measure, or other
limitation on its authority to engage in sales at market-based rates, other than challenges, investigations, rate caps and mitigation measures
generally applicable to wholesale sellers participating in the applicable electric market (such waivers and authorizations are the “Market-Based
Rate Authorizations” and together with QF Status, EWG Status, and the PUHCA Exemption, and the other authorizations described in paragraph
(c) above, are the “Federal Energy Regulatory Authorizations, Exemptions, and Waivers”).
(e) None of Holdings or any Subsidiary of Holdings will, as the result of entering into any Credit Documents, or any transaction
contemplated hereby or thereby, be subject to state laws and regulations respecting the rates of, or the financial or organizational regulation of,
electric utilities (as described for purposes of the exemption provided under PURPA as defined in 18 CFR § 292.602(c)), (“State Electric Utility
Regulations”), except as listed on Schedule 4.26 as such schedule may be amended by Borrower from time to time before or after the Closing Date.
(f) None of the Lenders or any of their “affiliates” (as defined under the PUHCA Regulations) of any of them will, solely as a result of
each of Holdings’ and its Subsidiaries’ respective ownership, leasing or operation of its electrical generating facility, the sale or transmission of
electricity therefrom or Holdings’ or any of its Subsidiaries’ entering into any Credit Documents, or any transaction contemplated hereby or
thereby, be subject to regulation under the FPA, PUHCA, or state laws and regulations respecting the rates of, or the financial or organizational
regulation of, electric utilities (as described for purposes of the exemption provided under PURPA as defined in 18 CFR § 292.602(c)), except that
the exercise by the Administrative Agent or the Lenders of certain foreclosure remedies allowed under the Credit Documents may subject the
Administrative Agent, the Lenders and their “affiliates” (as that term is defined in PUHCA) to regulation under the FPA, PUHCA or state laws and
regulations respecting the rates of, or the financial or organizational regulation of, electric utilities.
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SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations and
cancellation or expiration of all Letters of Credit (other than contingent or indemnification obligations for which no claim has been made, and other
than Letters of Credit as to which other arrangements satisfactory to Issuing Bank shall have been made (which arrangements may include Cash
Collateral or backstop letters of credit satisfactory to Issuing Bank in an amount equal to the Minimum Collateral Amount)), each Credit Party shall
perform, and if applicable shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1. Financial Statements and Other Reports. Holdings will deliver to Administrative Agent and Lenders:
(a) [Reserved];
(b) Quarterly Financial Statements. As soon as available, and in any event within 45 days after the end of each Fiscal Quarter of each
Fiscal Year, commencing with the Fiscal Quarter ending March 31, 2015, the consolidated balance sheets of Holdings and its Subsidiaries as at the
end of such Fiscal Quarter and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting
forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, commencing with the
first Fiscal Quarter for which such corresponding figures are available, and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto;
(c) Annual Financial Statements. As soon as available, and in any event within 90 days after the end of each Fiscal Year, commencing
with the Fiscal Year ending December 31, 2014, (i) the consolidated balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, commencing with the first Fiscal Year for
which such corresponding figures are available, and the corresponding figures from the Financial Plan for the Fiscal Year covered by such
financial statements, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) with
respect to such consolidated financial statements a report thereon of KPMG or other independent certified public accountants of recognized
national standing selected by Holdings, and reasonably satisfactory to Administrative Agent (which report and/or the accompanying financial
statements shall be unqualified as to going concern and scope of audit, and shall state that such consolidated financial statements fairly present,
in all material respects, the consolidated financial position of Holdings and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in
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conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted
auditing standards);
(d) Compliance Certificate. Together with each delivery of financial statements of Holdings and its Subsidiaries pursuant to Sections
5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate and an updated organizational chart of the Borrower in the form of
Schedule 4.1;
(e) Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and
policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would
have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the
first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form
and substance reasonably satisfactory to Administrative Agent;
(f) Notice of Default. Promptly upon any officer of Holdings or Borrower obtaining knowledge (i) of any condition or event that
constitutes a Default or an Event of Default or that notice has been given to Holdings or Borrower with respect thereto; (ii) that any Person has
given any notice to Holdings or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b);
(iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect; or
(iv) the occurrence of any default or event of default with respect to any Indebtedness of any Person that is secured by a Lien permitted under
Section 6.2(r), a certificate of an Authorized Officer specifying the nature and period of existence of such condition, event or change, or specifying
the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and
what action Borrower has taken, is taking and proposes to take with respect thereto;
(g) Notice of Litigation. Promptly upon any officer of Holdings or Borrower obtaining knowledge of (i) any Adverse Proceeding not
previously disclosed in writing by Borrower to Lenders, or (ii) any development in any Adverse Proceeding that, in the case of either clause (i) or
(ii), if adversely determined could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together
with such other information as may be reasonably available to Holdings or Borrower to enable Lenders and their counsel to evaluate such matters;
(h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Borrower, any of the Guarantors or any of their respective ERISA Affiliates has taken, is taking or
proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor
or the PBGC with respect thereto; and
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(ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Borrower,
any of the Guarantors or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all
notices received by Borrower, any of the Guarantors or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Administrative
Agent shall reasonably request;
(i) Financial Plan. As soon as practicable but in any event no later than the earlier of (i) twenty (20) Business Days following the
occurrence of the annual investor earnings presentation of Parent and (ii) ninety (90) days following the beginning of each Fiscal Year,
commencing with the Fiscal Year 2016, a consolidated plan and financial forecast for such Fiscal Year and each Fiscal Year (or portion thereof)
through the final maturity date of the Loans (a “Financial Plan”), including (i) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Holdings and its Subsidiaries for each such Fiscal Year, and an explanation of the
assumptions on which such forecasts are based and (ii) forecasted consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each month of such Fiscal Year and each Fiscal Quarter of each other Fiscal Year;
(j) Insurance Certificate. If requested by the Administrative Agent, as soon as practicable and in any event by the last day of each
Fiscal Year, a certificate from Holdings’ insurance broker(s) in form and substance satisfactory to Administrative Agent outlining all material
insurance coverage maintained as of the date of such certificate by Holdings and its Subsidiaries;
(k) Notice Regarding Material Contracts. Promptly, and in any event within ten Business Days, after the termination or amendment of
any Material Contract of Holdings or any of its Subsidiaries which would reasonably be expected to result in a Material Adverse Effect;
(l) Information Regarding Collateral. (a) Borrower will furnish to Collateral Agent prompt written notice of any change (i) in any Credit
Party’s corporate name, (ii) in any Credit Party’s identity or corporate form, (iii) in any Credit Party’s jurisdiction of organization or (iv) in any
Credit Party’s Federal Taxpayer Identification Number or state organizational identification number. Borrower agrees not to effect or permit any
change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral
Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral as contemplated in
the Collateral Documents. Borrower also agrees promptly to notify Collateral Agent if any portion of the Collateral is damaged or destroyed and
such damage or destruction would reasonably be expected to result in a Material Adverse Effect;
(m) Annual Collateral Verification. Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal
Year pursuant to Section 5.1(c), Borrower shall deliver to Collateral Agent a certificate of its Authorized Officer (i) either confirming that there has
been no change in such information since the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most recent
certificate delivered
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pursuant to this Section 5.1 and/or identifying such changes and (ii) certifying that all UCC financing statements (including fixtures filings, as
applicable) and all supplemental intellectual property security agreements or other appropriate filings, recordings or registrations, have been filed
of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above (or in such
Collateral Questionnaire) to the extent necessary to effect, protect and perfect the security interests under the Collateral Documents for a period of
not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within
such period);
(n) Other Information. (A) Promptly upon their becoming available, copies of (i) all financial statements, proxy statements and material
reports or notices sent or made available generally by any Credit Party to its equity holders acting in such capacity other than SunEdison or any of
its subsidiaries or, upon the reasonable request of the Administrative Agent, by any other Subsidiary of Holdings to its equity holders acting in
such capacity other than SunEdison or any of its subsidiaries and (ii) all press releases and other statements made available generally by Holdings
or any of its Subsidiaries to the public concerning material developments in the business of Holdings or any of its Subsidiaries, and (B) such other
information and data with respect to Holdings or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent
or any Lender, provided that any of the foregoing information which is filed with the Securities and Exchange Commission or otherwise made
available to the public, and in each case posted on an Internet website to which each Lender and the Administrative Agent have access shall be
deemed to have been delivered to Administrative Agent and Lenders;
(o) Certification of Public Information. Holdings, Borrower and each Lender acknowledge that certain of the Lenders may be Public
Lenders and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through
IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that
Holdings or Borrower has indicated contains Non-Public Information shall not be posted on that portion of the Platform designated for such Public
Lenders. Each of Holdings and Borrower agrees to clearly designate all information provided to Administrative Agent by or on behalf of Holdings
or Borrower which is suitable to make available to Public Lenders. If Holdings or Borrower has not indicated whether a document or notice
delivered pursuant to this Section 5.1 contains Non-Public Information, Administrative Agent reserves the right to post such document or notice
solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to Holdings, its
Subsidiaries and their Securities;
(p) Non-Recourse Project Indebtedness. Together with each delivery of financial statements of Holdings and its Subsidiaries pursuant
to Sections 5.1(b) and 5.1(c), a reconciliation demonstrating in reasonable detail the amount of Non-Recourse Project Indebtedness of all NonRecourse Subsidiaries; and
(q) Public Filings. Notwithstanding anything to the contrary contained herein, so long as Parent (x) continues to control, directly or
indirectly, more than 50% of the voting stock of Holdings, (y) consolidates Holdings and its Subsidiaries in accordance with GAAP and (z) has no
material operations, assets or revenues other than those of Holdings and its
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Subsidiaries, the filing by Parent of its quarterly, annual and current reports and consolidated financial statements on either the U.S. Securities and
Exchange Commission’s EDGAR filing system or a publicly accessible website, and a publicly accessible quarterly conference call of the Parent,
will be deemed to satisfy the obligations of Holdings under Section 5.1(b) and (c) hereof so long as Holdings delivers a copy thereof to the
Administrative Agent within the time periods set forth in Section 5.1(b) and (c) hereof (and any references to (x) the financial statements of
Holdings and its Subsidiaries delivered pursuant to Section 5.1(b) or (c) hereof shall be deemed to be references to the applicable financial
statements of Parent and its Subsidiaries and (y) Holdings in the definitions of “CAFD”, “CFADS” and “Fixed Charges” shall be deemed to be
references to Parent); provided that in the case of the quarterly and annual reports, the same are accompanied by information that explains in
reasonable detail the differences, if any, between the information relating to Parent and any of its Subsidiaries other than Holdings and its
Subsidiaries, on the one hand, and the information relating to Holdings and its Subsidiaries on a stand-alone basis, on the other hand.
5.2. Existence. Except as otherwise permitted under Section 6.8, each Credit Party will, and will cause each of its Subsidiaries (other than
Immaterial Subsidiaries) to, at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits
material to its business; provided, no Credit Party (other than Borrower with respect to existence) or any of its Subsidiaries shall be required to
preserve any such existence, right or franchise, licenses and permits if Borrower shall determine that the preservation thereof is no longer desirable
in the conduct of the business of such Person or that it is desirable to cease or change the business of such Person, and if the loss thereof is not
disadvantageous in any material respect to the Borrower or to Lenders.
5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its Subsidiaries to, file all income and other material Tax
returns and pay all Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any
penalty or fine accrues thereon, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided, no such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity
with GAAP shall have been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against any of the Collateral, such
contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim. No Credit Party will, nor will
it permit any of its Subsidiaries to, file or consent to the filing of any consolidated income tax return with any Person (other than Holdings or any
of its Subsidiaries).
5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all material properties used or useful in the
business of Holdings and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements
thereof, in each case except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
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5.5. Insurance. Holdings will maintain or cause to be maintained, with financially sound and reputable insurers, such public liability
insurance, third party property damage insurance, business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries as may customarily be carried or maintained under
similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons.
Without limiting the generality of the foregoing, Holdings will maintain or cause to be maintained (a) flood insurance with respect to each Flood
Hazard Property that is located in a community that participates in the National Flood Program, in each case in compliance with any applicable
regulations of the Board of Governors, and (b) replacement value casualty insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy of insurance of a Credit Party shall (i) name
Collateral Agent, for the benefit of the Secured Parties, as an additional insured thereunder as its interests may appear, (ii) in the case of each
casualty insurance policy, contain a loss payable clause or endorsement, satisfactory in form and substance to Collateral Agent, that names
Collateral Agent, for the benefit of the Secured Parties, as the loss payee thereunder.
5.6. Books and Records; Inspections. Each Credit Party will, and will cause each of its Subsidiaries to, keep proper books of record and
accounts in which full, true and correct entries in conformity in all material respects with GAAP, Canadian GAAP, UK GAAP or IFRS, as
applicable, shall be made of all dealings and transactions in relation to its business and activities. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender to visit and inspect any of the properties of any Credit Party and
any of its respective Subsidiaries, to inspect, copy and take extracts from its and their financial and accounting records, and to discuss its and their
affairs, finances and accounts with its and their officers and independent public accountants, all upon reasonable notice and at such reasonable
times during normal business hours and as often as may reasonably be requested; provided that, so long as no Default or Event of Default has
occurred and is continuing, such inspections shall be limited to once per year.
5.7. Lenders Meetings. Holdings and Borrower will, upon the request of Administrative Agent or Requisite Lenders, participate in a meeting
of Administrative Agent and Lenders once during each Fiscal Year to be held telephonically or at Borrower’s corporate offices (or at such other
location as may be agreed to by Borrower and Administrative Agent) at such time as may be agreed to by Borrower and Administrative Agent.
5.8. Compliance with Laws. The Borrower will, and will cause each of its Subsidiaries to, comply with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its business or property, such compliance to include, without limitation, compliance with
the Patriot Act, OFAC, the FCPA and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970,
except (other than in the case of the Patriot Act, OFAC or the FCPA) to the extent that the failure to do so could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
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5.9. Environmental.
(a) Environmental Disclosure. Holdings will deliver to Administrative Agent and Lenders:
(i) as soon as practicable following receipt thereof, copies of all environmental audits, investigations, analyses and reports of
any kind or character, whether prepared by personnel of Holdings or any of its Subsidiaries or by independent consultants, Governmental
Authorities or any other Persons, with respect to environmental matters at any Facility or with respect to any Environmental Claims that, in
either case, would be reasonably likely to result, individually or in the aggregate, in a Material Adverse Effect;
(ii) as soon as practicable following the occurrence thereof, written notice describing in reasonable detail (1) any Release
required to be reported to any Governmental Authority under any applicable Environmental Laws that could reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect, and (2) any remedial action taken by Holdings or any other Person in
connection with a violation of applicable Environmental Law or the Release of any Hazardous Materials, which in either event would be
reasonably likely to result, individually or in the aggregate, in a Material Adverse Effect;
(iii) as soon as practicable following the sending or receipt thereof by Holdings or any of its Subsidiaries, a copy of any and all
material written communications with respect to (1) any Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect and (2) any Release required to be reported to any Governmental Authority that could
reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect;
(iv) prompt written notice describing in reasonable detail (1) any proposed acquisition of stock, assets, or property by Holdings
or any of its Subsidiaries that could reasonably be expected to (A) expose Holdings or any of its Subsidiaries to, or result in, Environmental
Claims that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B) affect the ability of
Holdings or any of its Subsidiaries to maintain in full force and effect all Governmental Authorizations required under any Environmental
Laws for their respective operations that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
and (2) any proposed action to be taken by Holdings or any of its Subsidiaries to modify current operations in a manner that could
reasonably be expected to subject Holdings or any of its Subsidiaries to any additional material obligations or requirements under any
Environmental Laws; and
(v) with reasonable promptness, such other documents and information as from time to time may be reasonably requested by
Administrative Agent in relation to any matters disclosed pursuant to this Section 5.9(a).
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(b) Response to Environmental Claims and Violations of Environmental Laws. Each Credit Party shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure any violation of applicable Environmental Laws by such Credit
Party or its Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) make an
appropriate response to any Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any obligations it may have to
any Person thereunder where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
5.10. Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of Holdings or any Unrestricted Subsidiary is converted
into a Restricted Subsidiary that is a Domestic Subsidiary after the Closing Date (in each case, other than a Non-Recourse Subsidiary), Borrower
shall (a) promptly cause such Domestic Subsidiary to become a Guarantor hereunder and a Grantor under the Pledge and Security Agreement by
executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take all such actions and execute and
deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates reasonably requested by Collateral
Agent. In the event that any Person becomes a Foreign Subsidiary of Borrower or any Unrestricted Subsidiary is converted into a Restricted
Subsidiary that is a Foreign Subsidiary after the Closing Date (in each case, other than a Non-Recourse Subsidiary), and the ownership interests of
such Foreign Subsidiary are owned by Borrower or by any Domestic Subsidiary thereof, Borrower shall, or shall cause such Domestic Subsidiary
to, deliver, all such documents, instruments, agreements, and certificates as are similar to those described in Section 3.1(b), and Borrower shall
take, or shall cause such Domestic Subsidiary to take, all of the actions referred to in Section 3.1(h)(i) necessary to grant and to perfect a First
Priority Lien in favor of Collateral Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement in 65% of the outstanding
voting stock and 100% of the outstanding non-voting stock of such Subsidiary, except that any such equity interests constituting “stock entitled
to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 5.10.
Notwithstanding anything to the contrary herein, in no event will any of the outstanding voting stock of a Controlled Foreign Corporation, in
excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote, be pledged. With respect
to each such Subsidiary, Borrower shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date
on which such Person became a Subsidiary of Borrower or was converted into a Restricted Subsidiary, as applicable, and (ii) all of the data
required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Borrower; and such written notice shall be deemed to
supplement Schedules 4.1 and 4.2 for all purposes hereof. Notwithstanding anything to the contrary herein, neither Holdings nor any of its
Subsidiaries shall be required to grant a security interest in the Equity Interests of any Non-Recourse Subsidiary or Unrestricted Subsidiary.
5.11. Additional Material Real Estate Assets. In the event that any Credit Party acquires a Material Real Estate Asset or a Real Estate Asset
owned or leased by a Credit Party on the Closing Date becomes a Material Real Estate Asset and such interest in such Material Real Estate Asset
has not otherwise been made subject to the Lien of the Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then
such Credit Party shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all
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such mortgages, documents, instruments, agreements, opinions and certificates with respect to each such Material Real Estate Asset that
Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing
and/or recording referred to herein, perfected First Priority security interest in such Material Real Estate Assets, including the following:
(i) with respect to owned Material Real Estate Assets,
(1) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all
applicable jurisdictions;
(2) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in the state in
which such Material Real Estate Asset is located with respect to the enforceability of the form(s) of Mortgages to be recorded
in such state and such other customary matters as Collateral Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Collateral Agent;
(3)(A) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or
more title companies reasonably satisfactory to Collateral Agent (each, a “Title Policy”), in amounts not less than the fair
market value of such Material Real Estate Asset, together with a title report issued by a title company with respect thereto in
form and substance reasonably satisfactory to Collateral Agent, and copies of all recorded documents listed as exceptions to
title or otherwise referred to therein, and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid to the title
company or to the appropriate Governmental Authorities all expenses and premiums of the title company and all other sums
required in connection with the issuance of each Title Policy and all recording and stamp taxes (including mortgage recording
and intangible taxes) payable in connection with recording the Mortgages for such Material Real Estate Asset in the
appropriate real estate records;
(4)(A) a completed Flood Certificate with respect to such Material Real Estate Asset, which Flood Certificate
shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate
states that such Material Real Estate Asset is located in a Flood Zone, the
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Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such
Material Real Estate Asset and (y) as to whether the community in which such Material Real Estate Asset is located is
participating in the Flood Program; and (C) if such Material Real Estate Asset is located in a Flood Zone and is located in a
community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in
compliance with all applicable requirements of the Flood Program;
(5) Administrative Agent shall have received reports and other information, in form, scope and substance
satisfactory to Administrative Agent, regarding environmental matters relating to such Material Real Estate Asset; and
(6) an ALTA survey of such Material Real Estate Asset, certified to Collateral Agent; and
(ii) with respect to Leasehold Properties that are Material Real Estate Assets (unless otherwise agreed by Administrative Agent),
(1) a Landlord Consent and Estoppel; and
(2) evidence that such Leasehold Property is a Recorded Leasehold Interest.
In addition to the foregoing, Borrower shall, at the request of Collateral Agent, deliver, from time to time, to Collateral Agent such appraisals as are
required by law or regulation of Real Estate Assets with respect to which Collateral Agent has been granted a Lien. For the avoidance of doubt,
this Section 5.11 shall not apply with respect to real property owned by Non-Recourse Subsidiaries.
5.12. [Reserved.]
5.13. Further Assurances. At any time or from time to time upon the reasonable request of Administrative Agent, each Credit Party will, at
its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as Administrative Agent or
Collateral Agent may reasonably request in order to effect fully the purposes of the Credit Documents. In furtherance and not in limitation of the
foregoing, each Credit Party shall take such actions as Administrative Agent or Collateral Agent may reasonably request from time to time to
ensure that the Obligations are guaranteed by the Guarantors and are secured by substantially all of the assets of Holdings, and its Subsidiaries
(other than Non-Recourse Subsidiaries) and all of the outstanding Equity Interests of Borrower and its Subsidiaries (subject to limitations
contained in the Credit Documents with respect to Foreign Subsidiaries and Non-Recourse Subsidiaries).
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5.14. Cash Management Systems. Unless otherwise consented to by Agents or Requisite Lenders, the Credit Parties shall establish and
maintain cash management systems reasonably acceptable to Administrative Agent.
5.15. Designation of Subsidiaries. An Authorized Officer of Borrower may at any time designate any Restricted Subsidiary as an
Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation,
no Default or Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, Borrower shall be in
pro forma compliance with each of the covenants set forth in Section 6.7, (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is
a “Restricted Subsidiary” for the purpose of any subordinated Indebtedness of any Credit Party; (iv) no Restricted Subsidiary may be designated
as an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary, (v) Borrower shall deliver to Administrative Agent at
least five Business Days prior to such designation a certificate of an Authorized Officer of Borrower, together with all relevant financial information
reasonably requested by Administrative Agent, demonstrating compliance with the foregoing clauses (i) through (iv) of this Section 5.15 and, if
applicable, certifying that such subsidiary meets the requirements of an “Unrestricted Subsidiary” and (vi) at least ten days prior to the
designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Lenders shall have received all documentation and other information
required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the
PATRIOT Act, with respect to such subsidiary. The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by
Borrower therein at the date of designation in an amount equal to the fair market value of Borrower’s Investment therein. The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence by such Restricted Subsidiary at the time of designation of any
Indebtedness or Liens of such Subsidiary existing at such time.
5.16. Ratings. At all times, Borrower shall use commercially reasonable efforts to maintain a public corporate family rating issued by
Moody’s and a public corporate credit rating issued by S&P.
5.17. Energy Regulatory Status. Each Credit Party shall take, and shall cause each of its Subsidiaries promptly to take, any and all actions
necessary to maintain the Federal Energy Regulatory Authorizations, Exemptions, and Waivers, and as applicable to maintain exemption from or
compliance with any State Electric Utility Regulations, in each case, except to the extent failure to do so could not reasonably be expected to have
a Material Adverse Effect.
5.18. Post-Closing Obligations. Each of the Credit Parties shall satisfy the requirements set forth on Schedule 5.18 on or before the date
specified for such requirement or such later date to be determined by Administrative Agent.
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SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations and
cancellation or expiration of all Letters of Credit (other than contingent or indemnification obligations for which no claim has been made, and other
than Letters of Credit as to which other arrangements satisfactory to Issuing Bank shall have been made (which arrangements may include Cash
Collateral or backstop letters of credit satisfactory to Issuing Bank in an amount equal to the Minimum Collateral Amount)), such Credit Party shall
perform, and if applicable shall cause each of its Subsidiaries to perform, all covenants in this Section 6.
6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries (other than Immaterial Subsidiaries) to, directly or
indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Non-Recourse Project Indebtedness; provided that (i) Borrower shall be in pro forma compliance with each of the covenants set
forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter preceding the entry into definitive documentation in respect of
such Indebtedness for which financial statements are available after giving effect to the incurrence of such Indebtedness, or (ii) if Borrower is not
in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter preceding
the entry into definitive documentation in respect of such Indebtedness for which financial statements are available, then such Indebtedness shall
be incurred in connection with a transaction the effect of which is to increase the Debt Service Coverage Ratio and decrease the Leverage Ratio;
(c) Indebtedness of a Subsidiary of Holdings owed to Holdings or a Subsidiary of Holdings in the nature of shareholder loans or
intercompany loans and, if owed to a Credit Party, evidenced by an Intercompany Note and subject to a First Priority Lien pursuant to the Pledge
and Security Agreement;
(d) in connection with the consummation of any permitted Investment or permitted disposition of any business, assets or Subsidiary
of Holdings or any of its Subsidiaries, Indebtedness incurred by Holdings or any Subsidiary arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations (including Earn Out Indebtedness), or from guaranties or letters of credit,
surety bonds or performance bonds securing the performance by Holdings or any such Subsidiary pursuant to such agreements; provided that
each Subsidiary of a Closing Date Project Holdco may only incur such Indebtedness with respect to the Subsidiaries of such Closing Date Project
Holdco that is the direct or indirect parent of such Subsidiary;
(e) Indebtedness of Holdings or its Subsidiaries in the nature of guaranties or letters of credit, surety bonds or performance bonds
securing the performance of a Subsidiary or its Subsidiaries, in each case pursuant to an agreement such Subsidiary is not prohibited from
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entering into by this Agreement; provided that each Subsidiary of a Closing Date Project Holdco may only incur such Indebtedness with respect
to the Subsidiaries of such Closing Date Project Holdco that is the direct or indirect parent of such Subsidiary;
(f) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory or appeal bonds or similar
obligations incurred in the ordinary course of business; provided that each Subsidiary of a Closing Date Project Holdco may only incur such
Indebtedness with respect to the Subsidiaries of such Closing Date Project Holdco that is the direct or indirect parent of such Subsidiary;
(g) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with Deposit Accounts;
(h) guaranties in the ordinary course of business of obligations to suppliers, customers, franchisees and licensees; provided that each
Subsidiary of a Closing Date Project Holdco may only incur such Indebtedness with respect to the Subsidiaries of such Closing Date Project
Holdco that is the direct or indirect parent of such Subsidiary;
(i) guaranties by Holdings of Indebtedness of a Guarantor or Borrower or guaranties by Borrower or a Guarantor of Indebtedness of
Holdings or another Guarantor with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
provided, that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be
unsecured and/or subordinated to the Obligations;
(j) obligations (contingent or otherwise) existing or arising under any Swap Contract; provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of directly managing or mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by such Person or such Person’s direct or indirect Subsidiary, and
not for purposes of speculation or taking a “market view,” and (ii) such Swap Contract does not contain any provision exonerating the nondefaulting party from its obligation to make payments on outstanding transactions to the defaulting party; provided, further, that Permitted Call
Transactions shall be permitted;
(k) letters of credit, as long as cash collateral has been provided or back-to-back Letters of Credit have been issued hereunder in
respect of such letters of credit;
(l) Indebtedness represented by obligations in respect of capitalized leases, mortgage financings or purchase money obligations, in
each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement or
lease of property (real or personal), plant or equipment used or useful in the business of such Person, in each case in an aggregate principal
amount not to exceed the purchase price or cost of such property so acquired or designed, constructed, installed, improved or leased;
(m) the incurrence by Holdings or any of its Subsidiaries of Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, so long as such
Indebtedness is covered within five (5) Business Days;
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(n) unsecured Permitted Exchangeable Bond Indebtedness of Holdings;
(o) unsecured guaranties by Holdings of Permitted Convertible Bond Indebtedness;
(p) Permitted Convertible Bond Indebtedness Shareholder Loans borrowed by Holdings;
(q) Indebtedness under the Senior Notes Documents (and guaranties thereof by the Credit Parties pursuant to the Senior Notes
Documents) in an aggregate principal amount not to exceed $800,000,000;
(r) other Indebtedness in an aggregate amount not to exceed $50,000,000 at any time outstanding;
(s) other Indebtedness of Holdings and Borrower; provided that the Leverage Ratio as of the last day of the most recently ended
Fiscal Quarter for which financial statements are available calculated on a pro forma basis giving effect to the incurrence of such Indebtedness
shall not exceed 4.50:1.00;
(t) Non-Recourse Project Indebtedness of the Acquired Business outstanding on the Closing Date and not required to be paid
pursuant to Section 3.1 hereof;
(u) the factoring of accounts receivable in the ordinary course of business in an aggregate amount not to exceed $40.0 million;
(v) Indebtedness representing deferred compensation to employees of Holdings or any of its Subsidiaries in the ordinary course of
business; and
(w) Indebtedness consisting of the financing, by the applicable insurer, of insurance premiums in the ordinary course of business.
6.2. Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries (other than Immaterial Subsidiaries) to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect
of goods or accounts receivable) of Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries), whether now owned or hereafter
acquired or licensed, or any income, profits or royalties therefrom, or file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any such property, asset, income, profits or royalties under the UCC of any State or
under any similar recording or notice statute or under any applicable intellectual property laws, rules or procedures, except:
(a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to any Credit Document;
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(b) Liens for Taxes if obligations with respect to such Taxes that are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and adequate reserves have been made in accordance with GAAP;
(c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or
Section 4068 of ERISA), in each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in excess of thirty days) are bonded or insured or are otherwise being
contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by
GAAP shall have been made for any such contested amounts;
(d) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other similar or related obligations (exclusive of obligations for the
payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to
any portion of the Collateral on account thereof;
(e) easements, rights-of-way, restrictions, encroachments, reservations of title and other minor defects or irregularities in title, in each
case which do not and will not interfere in any material respect with the ordinary conduct of the business of Holdings or any of its Subsidiaries
(other than Immaterial Subsidiaries);
(f) any interest or title of a lessor or sublessor under any lease or sublease of real estate permitted hereunder (or with respect to any
deposits or reserves posted thereunder);
(g) Liens solely on any cash earnest money deposits made by Holdings or any of its Subsidiaries in connection with any letter of
intent or purchase agreement permitted hereunder;
(h) purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal
property entered into in the ordinary course of business;
(i) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with
the importation of goods;
(j) any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any
real property;
(k) non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual property rights granted by Holdings or
any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting
from the value of the business of Holdings or such Subsidiary;
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(l) Liens securing Indebtedness permitted by Section 6.1(b); provided that, with respect to any Subsidiary of a Closing Date Project
Holdco, such Liens do not at any time encumber any property other than the property of the Subsidiaries of such Closing Date Project Holdco that
is the direct or indirect parent of the Non-Recourse Subsidiary owing such Indebtedness and the Equity Interests in such Subsidiaries (excluding,
for the avoidance of doubt, the Equity Interests in such Closing Date Project Holdco);
(m) any security given to a public authority or other service provider or any other Governmental Authority by a Non-Recourse
Subsidiary when required by such public authority or other service provider or other Governmental Authority in connection with the operations of
such person in the ordinary course of its business;
(n) any agreement to lease, option to lease, license, sub-lease or other right to occupancy assumed or entered by or on behalf of
Holdings or any Subsidiary in the ordinary course of its business;
(o) reservations, limitations, provisos and conditions, if any, expressed in any grants, permits, licenses or approvals from any
Governmental Authority or any similar authority;
(p) Liens securing judgments not constituting an Event of Default under Section 8.1(h);
(q) Liens in the nature of restrictions on changes in the direct or indirect ownership or control of any Non-Recourse Subsidiary;
(r) Liens on the assets of any Non-Recourse Subsidiary set forth on Schedule 6.2(r) securing Indebtedness of Persons other than
Holdings and its Subsidiaries; provided that the definitive documentation with respect to such Indebtedness shall provide that, upon a default
thereunder, such Lien shall be released upon payment by such Non-Recourse Subsidiary of the amount set forth opposite the name of such NonRecourse Subsidiary on Schedule 6.2(r);
(s) Liens securing Indebtedness permitted by Section 6.1(l) and (t); provided that no such Lien incurred in connection with such
Indebtedness shall extend to or cover property other than the respective property so acquired or designed, constructed, installed, improved or
leased;
(t) Liens on the assets of the Non-Recourse Subsidiaries securing performance of obligations under power purchase agreements and
agreements for the purchase and sale of energy and renewable energy credits, climate change levy exemption certificates, embedded benefits and
other environmental attributes;
(u) Liens in the nature of rights of first refusal, rights of first offer, purchase options and similar rights in respect of the Equity Interests
or assets of Non-Recourse Subsidiaries included in documentation evidencing contemplated purchase and sale transactions permitted under this
Agreement, any Non-Recourse Project Indebtedness or any Project Obligations;
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(v) Liens securing insurance premium financing arrangements permitted under Section 6.1(w) hereof and applicable only to the
proceeds of the applicable insurance policy; and
(w) other Liens on assets other than the Collateral securing Indebtedness in an aggregate amount not to exceed $50,000,000 at any time
outstanding.
6.3. No Further Negative Pledges. Except with respect to (a) specific property encumbered to secure payment of particular Indebtedness or
to be sold pursuant to an executed agreement with respect to a permitted sale, disposition or other transfer, (b) restrictions by reason of customary
provisions restricting assignments, subletting or other transfers contained in leases, licenses and similar agreements entered into in the ordinary
course of business (provided that such restrictions are limited to the property or assets secured by such Liens or the property or assets subject to
such leases, licenses or similar agreements, as the case may be), (c) restrictions as of the Closing Date identified on Schedule 6.3, (d) restrictions
on Non-Recourse Subsidiaries and the Equity Interests of Non-Recourse Subsidiaries in any Non-Recourse Project Indebtedness documentation
or other Indebtedness documentation of Non-Recourse Subsidiaries permitted under Section 6.1, (e) restrictions on Non-Recourse Subsidiaries in
documentation evidencing Project Obligations, (f) restrictions contained in any Credit Document or Notes Document as in effect on the Closing
Date and (g) restrictions on Non-Recourse Subsidiaries described in Section 6.2(q), no Credit Party or any of its Subsidiaries shall enter into any
agreement prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired, to
secure the Obligations.
6.4. Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through
any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any
Restricted Junior Payment except that, without duplication:
(a) any Subsidiary of Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(b) Non-Recourse Subsidiaries may declare and pay dividends or make other distributions to their equity holders ratably or otherwise
in accordance with their organizational documents and non-recourse project financing documents;
(c) Borrower may make Restricted Junior Payments to Holdings, and Holdings may make Restricted Junior Payments to its equity
holders; provided that immediately prior to any such Restricted Junior Payment, and after giving effect thereto, (1) no Event of Default shall have
occurred and be continuing or would result therefrom and (2) Borrower shall be in compliance on a pro forma basis with each of the financial
covenants set forth in Section 6.7;
(d) Borrower and Holdings may make Permitted Tax Distributions;
(e) to the extent any cash payment and/or delivery of Parent’s common stock (or other securities or property following a merger event
or other change of the common stock of Parent) by Holdings or Borrower in satisfaction of its exchange obligation or obligations to
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purchase notes for cash under any Permitted Exchangeable Bond Indebtedness constitutes a Restricted Junior Payment, Holdings and/or
Borrower may make such Restricted Junior Payments;
(f) Holdings and/or Borrower may settle or terminate any Permitted Warrant Transaction (including by set-off or netting, if applicable);
provided that, in the case where Holdings and/or Borrower voluntarily elects to satisfy its exercise or settlement or termination obligations under
any Permitted Warrant Transaction in cash, after giving effect to any such cash payment (with the effect of any such cash payment determined
after also giving effect to the satisfaction of any related settlement obligations of any Permitted Hedge Transaction), (x) no Event of Default shall
exist or result therefrom and (y) the Borrower shall be in pro forma compliance with the covenant set forth in Section 6.7(b) as of the last day of the
most recently ended Fiscal Quarter preceding such cash payment;
(g) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or Parent held by any
current or former officer, director, employee or consultant of Holdings or any of its Subsidiaries or the Parent pursuant to any equity subscription
agreement, stock option agreement, restricted stock grant, shareholders’ agreement or similar agreement; provided that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $5,000,000 in any calendar year (with unused amounts in any
calendar being carried over to succeeding calendar years); and provided further that such amount in any calendar year may be increased by an
amount not to exceed the cash proceeds from (i) the sale of Equity Interests of Holdings or the Parent received by Holdings or a Subsidiary during
such calendar year, in each case to members of management, directors or consultants of Holdings, any of its Subsidiaries or the Parent and (ii) key
man life insurance policies received by Holdings or any of its Subsidiaries in such calendar year; and
(h) cash distributions to the holders of Equity Interests of Holdings in respect of, and paid in the quarter subsequent to, Holdings’
fiscal quarters ending December 31, 2014 and March 31, 2015, in accordance with its Organizational Documents, in an aggregate amount not to
exceed (i) $37.5 million in respect of the Fiscal Quarter ending December 31, 2014 and (ii) $45.0 million in respect of the Fiscal Quarter ending
March 31, 2015.
6.5. Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party shall, nor shall it permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of Borrower to (a) pay dividends or make any other distributions on any of such Subsidiary’s Equity Interests owned by Borrower or
any other Subsidiary of Borrower, (b) repay or prepay any Indebtedness owed by such Subsidiary to Borrower or any other Subsidiary of
Borrower, (c) make loans or advances to Borrower or any other Subsidiary of Borrower, or (d) transfer, lease or license any of its property or assets
to Borrower or any other Subsidiary of Borrower other than (i) restrictions on Non-Recourse Subsidiaries in agreements evidencing Indebtedness
permitted by Section 6.1(b), (ii) by reason of customary provisions restricting assignments, subletting or other transfers contained in leases,
licenses, joint venture agreements and similar agreements entered into in the ordinary course of business, (iii) restrictions that are or were created
by virtue of any transfer of, agreement to transfer or option or right with respect to any property, assets or Equity Interests not otherwise
prohibited under this Agreement, (iv)
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restrictions as of the Closing Date described on Schedule 6.5, (v) customary restrictions on the transfer of non-Cash assets by Non-Recourse
Subsidiaries in power purchase agreements and similar agreements, (vi) restrictions contained in any Credit Document or Notes Document as in
effect on the Closing Date or (vii) restrictions on Non-Recourse Subsidiaries in documentation evidencing Project Obligations.
6.6. Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(a) Investments in Cash and Cash Equivalents;
(b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made after the Closing Date in Borrower and
any Guarantor that is a wholly-owned Subsidiary of Borrower;
(c) Investments made by any Non-Recourse Subsidiary in any Subsidiary of the Project Holdco that is the direct or indirect parent of
such Non-Recourse Subsidiary;
(d) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors
and (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of
Holdings and its Subsidiaries;
(e) Permitted M&A Transactions;
(f) shareholder loans and intercompany loans to the extent permitted under Section 6.1(c);
(g) Investments as of the Closing Date described in Schedule 6.6;
(h) other Investments solely to the extent made with the proceeds of any cash capital contributions to Holdings or Net Equity
Proceeds from the sale or issuance of any common Equity Interests of Parent or Holdings, in each case, contributed by Holdings to and received
by Borrower following the Closing Date;
(i) Swap Contracts permitted by Section 6.1(j);
(j) acquisitions of shelf entities in connection with internal corporate reorganizations, so long as such acquisitions are not adverse to
the Lenders in any material respect;
(k) other Investments (other than any acquisition, directly or indirectly, whether by purchase, merger or otherwise, of all or
substantially all of the assets of, all or a portion of the Equity Interests of, or a business line or unit or a division of, any Person) in energy and
infrastructure projects and Persons (including, for the avoidance of doubt, Subsidiaries and Unrestricted Subsidiaries) engaged in designing,
developing, constructing, operating and/or owning such projects, directly or indirectly; provided that (i) Borrower shall be in pro forma
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compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter preceding the entry into
definitive documentation in respect of such Investment for which financial statements are available, or (ii) if Borrower is not in pro forma
compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter preceding the entry into
definitive documentation in respect of such Investment for which financial statements are available, then the effect of such Investment shall be to
increase the Debt Service Coverage Ratio and decrease the Leverage Ratio;
(l) acquisitions (directly or indirectly, by contribution or otherwise) by SunE Solar Construction Holdings #2, LLC and/or SunE Solar
Construction #2, LLC from Subsidiaries of Borrower of Clean Energy Systems or Persons owning Clean Energy Systems;
(m) any Investments received in compromise or resolutions of (i) obligations of trade creditors or customers that were incurred in the
ordinary course of business or (ii) litigation, arbitration or other disputes;
(n) extensions of credit to (and guaranties to the benefit of) customers and suppliers in the ordinary course of business including
advances to customers and suppliers that are recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of Holdings and
its Subsidiaries in the ordinary course of business; and
(o) guaranties of performance obligations made in the ordinary course of business.
Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which results in any Restricted Junior Payment not
otherwise permitted under the terms of Section 6.4.
6.7. Financial Covenants.
(a) Debt Service Coverage Ratio. Borrower shall not permit the Debt Service Coverage Ratio as of the last day of any Fiscal Quarter,
beginning with the Fiscal Quarter ending June 30, 2015, to be less than 1.75:1.00.
(b) Leverage Ratio. Borrower shall not permit the Leverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending June 30, 2015, to exceed 5.00:1.00; provided that if Borrower or any of its Subsidiaries have consummated a Qualified Acquisition in
a Fiscal Quarter, the maximum Leverage Ratio that is permitted for the immediately succeeding two Fiscal Quarters shall be increased by 0.50:1.00.
(c) Pro Forma Compliance. Notwithstanding anything herein to the contrary, pro forma compliance with the financial covenants set
forth in this Section 6.7 for any period prior to the initial test period of such covenants shall be calculated assuming that the required Debt Service
Coverage Ratio and Leverage Ratio are equal to the required Debt Service Coverage Ratio and Leverage Ratio for the Fiscal Quarter ending
June 30, 2015.
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6.8. Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any
transaction of merger or consolidation (other than in connection with an Investment permitted pursuant to Section 6.6), or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution) into any other Person, or convey, sell, lease or license, exchange, transfer, assign, pledge or
otherwise dispose of or encumber, in one transaction or a series of transactions, all or any part of its Equity Interests in any of its Subsidiaries
(other than to qualify directors if required by applicable law), business, assets or property of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed except:
(a) any Subsidiary of Borrower (other than a Non-Recourse Subsidiary) may be merged with or into Borrower or any Guarantor
Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary; provided, in the case
of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person;
(b) any Non-Recourse Subsidiary may be merged with or into any other Non-Recourse Subsidiary of the Project Holdco that is the
direct or indirect parent of such Non-Recourse Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other NonRecourse Subsidiary of the Project Holdco that is the direct or indirect parent of such Non-Recourse Subsidiary;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(d) Asset Sales; provided (1) the consideration received for such assets shall be in an amount at least equal to the fair market value
thereof (determined in good faith by the manager of Holdings) and (2) no less than 75% thereof shall be paid in Cash;
(e) disposals of obsolete, worn out or surplus property;
(f) the lease, as lessor or sublessor, or license (other than any long-term exclusive license), as licensor or sublicensor, of real or
personal property or Intellectual Property in the ordinary course of business and not interfering in any respect with the ordinary conduct of or
materially detracting from the business of Holdings or any Subsidiary;
(g) internal corporate reorganizations of the Subsidiaries of any Project Holdco so long as, with respect to any Subsidiary of a Closing
Date Project Holdco, any such reorganization does not involve any Person other than the Subsidiaries of such Project Holdco and is not adverse
to the Lenders in any material respect;
(h) the issuance or sale by Holdings of its Equity Interests;
(i) any sale of Equity Interests pursuant to the CMP Option Agreement and any Lien permitted by Section 6.2(l);
(j) Permitted Warrant Transactions;
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(k) Liens permitted by Section 6.2;
(l) the issuance or sale by Borrower or any of its Subsidiaries of Equity Interests ratably to their respective equity holders; and
(m) transfers (directly or indirectly, by merger or otherwise) to other subsidiaries of Borrower of SunE Solar Construction Holdings #2,
LLC, SunE Solar Construction #2, LLC and any of their respective subsidiaries.
6.9. Reserved.
6.10. Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become or remain liable
as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, which such Credit Party or such Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than
Holdings or any Guarantor), or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or
transferred by such Credit Party to any Person (other than Holdings or any Guarantor) in connection with such lease; provided that Non-Recourse
Subsidiaries shall be permitted to enter into such transactions in connection with tax equity financings and other permitted Non-Recourse Project
Indebtedness.
6.11. Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of Holdings on terms, considered together with the terms of all related and substantially concurrent transactions between such Credit
Party and such Affiliate of Holdings, that are less favorable to such Credit Party or Subsidiary, as the case may be, than those that might be
obtained at the time from a Person who is not such an Affiliate of Holdings in an arms’ length transaction; provided, the foregoing restriction shall
not apply to (a) any transaction between or among the Borrower and the Guarantors; (b) reasonable and customary fees paid to members of the
board of directors (or similar governing body) of Holdings and its Subsidiaries; (c) compensation arrangements for officers and other employees of
Holdings and its Subsidiaries entered into in the ordinary course of business; (d) transactions as of the Closing Date described in Schedule 6.11 or
any amendment thereto to the extent such amendment is not adverse to the Lenders in any material respect, (e) Permitted Project Undertakings and
Permitted Equity Commitments, (f) any Project Obligation of a Non-Recourse Subsidiary acquired as a result of the Acquisition (but not entered
into in contemplation thereof) and (g) any acquisition of assets or Equity Interests from SunEdison or a Subsidiary of SunEdison pursuant to the
Project Support Agreement or the Intercompany Agreement as such agreement is in existence as of the Closing Date or as such agreement may be
amended after the Closing Date if such amendment, taken as a whole with all other such amendments, is not more disadvantageous to the Lenders
in any material respect than such agreement as it is in existence as of the Closing Date, and so long as the Corporate Governance and Conflicts
Committee of Parent (or, if at any time Parent is not the sole managing member of Holdings, the Board of Directors of Holdings) has approved such
acquisition, and any construction, operational or similar agreements or arrangements or Project Obligations entered into in connection with such
acquisition. Nothing in
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the foregoing shall be construed to prohibit the issuance of any Permitted Convertible Bond Indebtedness (or any guarantee thereof), the issuance
of any Permitted Exchangeable Bond Indebtedness, or the entry into any Permitted Call Transaction.
6.12. Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall it permit any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by such Credit Party on the Closing Date and similar or related businesses, including, for the
avoidance of doubt, owning, developing, constructing, leasing, financing, selling and/or operating Clean Energy Systems (including entering into
Hedge Agreements related to the same) and (ii) such other lines of business as may be consented to by Requisite Lenders.
6.13. Permitted Activities of Project Holdcos. No Project Holdco shall (a) incur any Indebtedness or any other obligation or liability
whatsoever other than (i) the Indebtedness and obligations under this Agreement and the other Credit Documents, (ii) pursuant to shareholder
loan agreements or intercompany loans permitted hereunder and (iii) pursuant to Swap Contracts permitted hereunder; (b) create or suffer to exist
any Lien upon any property or assets now owned or hereafter acquired, leased or licensed by it other than the Liens created under the Collateral
Documents to which it is a party or permitted pursuant to Section 6.2; (c) engage in any business or activity or own any assets other than
(i) holding Equity Interests of Non-Recourse Subsidiaries and other Subsidiaries of Borrower, (ii) performing its obligations and activities
incidental thereto under the Credit Documents, and (iii) entering into Swap Contracts and shareholder loan agreements permitted hereunder;
(d) consolidate with or merge with or into, or convey, transfer, lease or license all or substantially all its assets to, any Person, except as permitted
pursuant to Section 6.8; (e) sell or otherwise dispose of any Equity Interests of any of its Subsidiaries, except as permitted pursuant to Section 6.8;
or (f) fail to hold itself out to the public as a legal entity separate and distinct from all other Persons.
6.14. Amendments or Waivers of Organizational Documents and Certain Material Contracts. No Credit Party shall nor shall it permit any
of its Subsidiaries to, agree to any amendment, restatement, supplement or other modification to, or waiver of, (a) any of its Organizational
Documents or any Material Contract in a manner that could reasonably be expected to have a Material Adverse Effect or (b) the Management
Services Agreement in a manner that increases amounts payable thereunder by any Credit Party or its Subsidiaries, in each case without obtaining
the prior written consent of Requisite Lenders to such amendment, restatement, supplement or other modification or waiver; provided, however,
that any amendment, modification or change expressly required to be made (including adjustments to the exchange rate (howsoever defined))
pursuant to the terms of an indenture governing any Permitted Exchangeable Bond Indebtedness shall not require any consent from any Lenders.
6.15. Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to change its Fiscal Year end from December 31.
SECTION 7. GUARANTY
7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty to Administrative Agent, for the ratable benefit of the Beneficiaries, the due and punctual payment
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in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. § 362(a)) (collectively, the “Guaranteed Obligations”).
7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair
and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by
a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding
Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any
date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to
(ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors multiplied by (b) the aggregate amount paid
or distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share
Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Contributing Guarantor under this Guaranty that would not render its obligations hereunder or thereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions
of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for
purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement
or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing
Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the
aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of this Guaranty
(including in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall
be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among
Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any
Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 7.2.
7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the failure of
Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be paid, in Cash, to Administrative
Agent for the ratable benefit of
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Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid
interest on such Guaranteed Obligations (including interest which, but for Borrower’s becoming the subject of a case under the Bankruptcy Code,
would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Borrower for such interest in the related
bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.
7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations (other than contingent or indemnification obligations for which no claim has been made) or valid
release of a Guarantor in accordance with the Credit Documents. In furtherance of the foregoing and without limiting the generality thereof, each
Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor
and not merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any
dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the obligations of Borrower and the obligations of any other
guarantor (including any other Guarantor) of the obligations of Borrower, and a separate action or actions may be brought and prosecuted against
such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in
any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge
any Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Guaranteed
Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations that
is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any
other Guarantor’s liability hereunder in respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or
enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from
time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of
the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any
other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the
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payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate
or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and
apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the
order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as
such Beneficiary in its discretion may determine consistent herewith or with the applicable Hedge Agreement and any applicable security
agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of any Guarantor against any other Credit Party or any security for the Guaranteed Obligations; and (vi) exercise any other
rights available to it under the Credit Documents or any Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations), including the occurrence
of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or
enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the
exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit Documents or any Hedge
Agreements, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any
other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Credit
Documents, any of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document, such Hedge Agreement or any
agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found
to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received
pursuant to the other Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guaranteed Obligations,
except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of
indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of
the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of
Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims
which Borrower may allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the
Guaranteed Obligations.
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7.5. Waivers by Guarantors. Each Guarantor hereby waives, to the extent permitted by applicable law, for the benefit of Beneficiaries: (a) any
right to require any Beneficiary, as a condition of payment or performance by such Guarantor, to (i) proceed against Borrower, any other guarantor
(including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from
Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any Deposit Account or credit on
the books of any Beneficiary in favor of any Credit Party or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Borrower or any other
Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the liability of Borrower or any other Guarantor from any cause other than
payment in full of the Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Beneficiary’s
errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Beneficiary protect,
secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder, the Hedge
Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any
agreement related thereto, notices of any extension of credit to Borrower and notices of any of the matters referred to in Section 7.4 and any right
to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof.
7.6. Guarantors’ Rights of Subrogation, Contribution, Etc. Until the Guaranteed Obligations (other than contingent or indemnification
obligations for which no claim has been made) shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and
all Letters of Credit shall have expired or been cancelled (other than Letters of Credit as to which other arrangements satisfactory to Issuing Bank
shall have been made (which arrangements may include Cash Collateral or backstop letters of credit satisfactory to Issuing Bank in an amount
equal to the Minimum Collateral Amount)), each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now
has or may hereafter have against Borrower or any other Guarantor or any of its assets in connection with this Guaranty or the performance by
such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has or may
hereafter have against Borrower with respect to the Guaranteed Obligations, (b)
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any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have against Borrower, and
(c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Beneficiary. In addition, until the
Guaranteed Obligations (other than contingent or indemnification obligations for which no claim has been made) shall have been indefeasibly paid
in full and the Revolving Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled (other than Letters of
Credit as to which other arrangements satisfactory to Issuing Bank shall have been made (which arrangements may include Cash Collateral or
backstop letters of credit satisfactory to Issuing Bank in an amount equal to the Minimum Collateral Amount)), each Guarantor shall withhold
exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of the Guaranteed
Obligations, including any such right of contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the waiver
or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a
court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor
may have against Borrower or against any collateral or security, and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Borrower, to all right, title and interest any Beneficiary
may have in any such collateral or security, and to any right any Beneficiary may have against such other guarantor. If any amount shall be paid to
any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed
Obligations shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
7.7. Subordination of Other Obligations. Any Indebtedness of Borrower or any Guarantor now or hereafter held by any Guarantor (the
“Obligee Guarantor”) is hereby subordinated in right of payment to the Guaranteed Obligations, and any such Indebtedness collected or received
by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision
hereof.
7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed Obligations (other
than contingent or indemnification obligations for which no claim has been made) shall have been paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired or been cancelled (other than Letters of Credit as to which other arrangements
satisfactory to Issuing Bank shall have been made (which arrangements may include Cash Collateral or backstop letters of credit satisfactory to
Issuing Bank in an amount equal to the Minimum Collateral Amount)). Each Guarantor hereby irrevocably waives, to the extent permitted by
applicable law, any right to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.
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7.9. Authority of Guarantors or Borrower. It is not necessary for any Beneficiary to inquire into the capacity or powers of any Guarantor or
Borrower or the officers, directors or any agents acting or purporting to act on behalf of any of them.
7.10. Financial Condition of Borrower. Any Credit Extension may be made to Borrower or continued from time to time, and any Hedge
Agreements may be entered into from time to time, in each case without notice to or authorization from any Guarantor regardless of the financial or
other condition of Borrower at the time of any such grant or continuation or at the time such Hedge Agreement is entered into, as the case may be.
No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial
condition of Borrower. Each Guarantor has adequate means to obtain information from Borrower on a continuing basis concerning the financial
condition of Borrower and its ability to perform its obligations under the Credit Documents and the Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial condition of Borrower and of all circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and relinquishes, to the extent permitted by applicable law, any duty on
the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of Borrower now known or
hereafter known by any Beneficiary.
7.11. Bankruptcy, Etc. (a) So long as any Guaranteed Obligations remain outstanding (other than contingent or indemnification obligations
for which no claim has been made), no Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency case or
proceeding of or against Borrower or any other Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Borrower or any other Guarantor or by any defense which Borrower or any other
Guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the
commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to
accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of
the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the
intention of Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be
determined without regard to any rule of law or order which may relieve Borrower of any portion of such Guaranteed Obligations. Guarantors will
permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay Administrative
Agent, or allow the claim of Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is
commenced.
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(c) In the event that all or any portion of the Guaranteed Obligations are paid by Borrower, the obligations of Guarantors hereunder
shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments which
are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
7.12. Discharge of Guaranty Upon Sale of Guarantor. If (A) all of the Equity Interests of any Guarantor or any of its successors in interest
hereunder shall be sold or otherwise disposed of (including by merger or consolidation) in accordance with the terms and conditions hereof or
(B) if a Guarantor is designated as an Unrestricted Subsidiary in accordance with Section 5.15, then in the case of clauses (A) and (B), the Guaranty
of such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further
action by any Beneficiary or any other Person effective as of the time of such sale or other disposition.
7.13. Keepwell. Each Qualified ECP Guarantor 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 Credit Party to honor all of its obligations under this
Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 7.13 for the
maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 7.13, or otherwise under this
Guaranty, 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 7.13 shall remain in full force and effect until all of the Guaranteed Obligations (other than
contingent or indemnification obligations for which no claim has been made) have been paid in full and the Revolving Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled (other than Letters of Credit as to which other arrangements satisfactory to
Issuing Bank shall have been made (which arrangements may include Cash Collateral or backstop letters of credit satisfactory to Issuing Bank in
an amount equal to the Minimum Collateral Amount)). Each Qualified ECP Guarantor intends that this Section 7.13 constitute, and this Section 7.13
shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)
(A)(v)(II) of the Commodity Exchange Act.
SECTION 8. EVENTS OF DEFAULT
8.1. Events of Default. If any one or more of the following conditions or events shall occur:
(a) Failure to Make Payments When Due. Failure by Borrower to pay (i) when due any installment of principal of any Loan, whether at
stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to
Issuing Bank in reimbursement of any drawing under a Letter of Credit or any Cash Collateralization required pursuant to Section 2.22(d); or
(iii) any interest on any Loan or any fee or any other amount due hereunder, in each case of this clause (iii) within five Business Days after the date
due; or
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(b) Default in Other Agreements. (i) Failure of any Credit Party or any of their respective Subsidiaries (other than Immaterial Entities or
Non-Recourse Subsidiaries (except to the extent that any Credit Party is then directly or indirectly liable, including pursuant to any contingent
obligation, for any such Non-Recourse Project Indebtedness and such liability, individually or in the aggregate, exceeds $75,000,000)) to pay when
due any principal of or interest on or any other amount, including any payment in settlement, payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 8.1(a)) with an aggregate principal amount (or Net Mark-to-Market Exposure) of
$75,000,000 or more, in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by any Credit Party with respect to
any other material term of (1) one or more items of Indebtedness in the individual or aggregate principal amounts (or Net Mark-to-Market Exposure)
referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each
case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and payable (or subject
to a compulsory repurchase or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or
(c) Breach of Certain Covenants. (i) Failure of any Credit Party to perform or comply with any term or condition contained in
Section 2.6, 5.2, 5.18 or 6 or (ii) failure for longer than ten Business Days of any Credit Party to perform or comply with any term or condition
contained in Section 5.1(b), 5.1(c), 5.1(d) or 5.1(f); or
(d) Breach of Representations, Etc. Any representation, warranty, certification or other statement made or deemed made by any Credit
Party in any Credit Document or in any statement or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as of the date made or deemed made; or
(e) Other Defaults Under Credit Documents. Any Credit Party shall default in the performance of or compliance with any term
contained herein or any of the other Credit Documents, other than any such term referred to in any other paragraph of this Section 8.1, and such
default shall not have been remedied or waived within thirty days after the earlier of (i) an officer of such Credit Party becoming aware of such
default or (ii) receipt by Borrower of notice from Administrative Agent or any Lender of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in
respect of Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries) in an involuntary case under any Debtor Relief Laws now or
hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries) under any Debtor Relief Laws
now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries),
or over all or a substantial part of its property, shall have been
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entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Holdings or any of its
Subsidiaries (other than Immaterial Subsidiaries) for all or a substantial part of its property; or a warrant of attachment, execution or similar process
shall have been issued against any substantial part of the property of Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries), and
any such event described in this clause (ii) shall continue for sixty days without having been dismissed, bonded or discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries)
shall have an order for relief entered with respect to it or shall commence a voluntary case under any Debtor Relief Laws now or hereafter in effect,
or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its
property; or Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries) shall make any assignment for the benefit of creditors; or
(ii) Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries) shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the members of Holdings or its board of directors (or similar governing body) of Holdings
or any of its Subsidiaries (other than Immaterial Subsidiaries) (or any committee thereof) shall adopt any resolution or otherwise authorize any
action to approve any of the actions referred to herein or in Section 8.1(f); or
(h) Judgments and Attachments. At any time there shall exist money judgments, writs or warrants of attachment or similar process
involving in the aggregate an amount in excess of $75,000,000 (to the extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) entered or filed against Holdings or any of its Subsidiaries (other than Immaterial
Subsidiaries) or any of their respective assets and such money judgments, writs or warrants of attachment or similar process remain undischarged,
unvacated, unbonded or unstayed for a period of sixty days; or
(i) Dissolution. Any order, judgment or decree shall be entered against any Credit Party decreeing the dissolution or split up of such
Credit Party and such order shall remain undischarged or unstayed for a period in excess of thirty days; or
(j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or would
reasonably be expected to result in liability of Borrower, any of the Guarantors or any of their respective ERISA Affiliates in excess of $75,000,000
during the term hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to result in the imposition of a Lien or
security interest pursuant to Section 430(k) of the Internal Revenue Code or Section 4068 of ERISA upon the property and rights to property
belonging to the Borrower, any of the Guarantors or any of their respective ERISA Affiliates; or
(k) Change of Control. A Change of Control shall occur; or
(l) Guaranties, Collateral Documents and other Credit Documents. At any time after the execution and delivery thereof, (i) the Guaranty
for any reason, other than the
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satisfaction in full of all Obligations (other than contingent and indemnification obligations for which no claim has been made), shall cease to be in
full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force and effect (other than by reason of a release of
Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or shall
be declared null and void, or Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any material portion of the
Collateral (for the avoidance of doubt, any pledge of Equity Interests shall constitute a material portion of the Collateral) purported to be covered
by the Collateral Documents with the priority required by the relevant Collateral Document, in each case for any reason other than the failure of
Collateral Agent or any Secured Party to take any action within its control, or (iii) any Credit Party shall contest the validity or enforceability of any
Credit Document in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any
Credit Document to which it is a party or shall contest the validity or perfection of any Lien in any Collateral purported to be covered by the
Collateral Documents; or
THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), automatically, and (2) upon the occurrence and during
the continuance of any other Event of Default, at the request of (or with the consent of) Requisite Lenders, upon notice to Borrower by
Administrative Agent, (A) the Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation of Issuing
Bank to issue any Letter of Credit shall immediately terminate; (B) each of the following shall immediately become due and payable, in each case
without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I) the
unpaid principal amount of and accrued interest and premium on the Loans, (II) an amount equal to the maximum amount that may at any time be
drawn under all Letters of Credit then outstanding (regardless of whether any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letters of Credit), and (III) all
other Obligations; provided, the foregoing shall not affect in any way the obligations of Lenders under Section 2.3(b)(v) or Section 2.4(e);
(C) Administrative Agent may cause Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral Documents;
and (D) Administrative Agent shall direct Borrower to pay (and Borrower hereby agrees upon receipt of such notice, or upon the occurrence of
any Event of Default specified in Sections 8.1(f) and (g) to pay) to Administrative Agent such additional amounts of cash as reasonably requested
by Issuing Bank, to be held as security for Borrower’s reimbursement obligations in respect of Letters of Credit then outstanding.
SECTION 9. AGENTS
9.1. Appointment of Agents. Each of Barclays, Citigroup, Goldman Sachs, Macquarie, MLPFS and Morgan Stanley is hereby appointed a
Bookrunner hereunder and each Lender hereby authorizes Barclays, Citigroup, Goldman Sachs, Macquarie, MLPFS and Morgan Stanley to act as
Bookrunners in accordance with the terms hereof and the other Credit Documents. Each of Citigroup, Goldman Sachs, Macquarie, MLPFS and
Morgan Stanley is hereby appointed a Syndication Agent and Bookrunner hereunder and each Lender hereby authorizes Citigroup, Goldman
Sachs, Macquarie, MLPFS and Morgan Stanley to act as
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Syndication Agents and Bookrunners in accordance with the terms hereof and the other Credit Documents. Each of KeyBank and Royal Bank is
hereby appointed a Documentation Agent hereunder, and each Lender hereby authorizes KeyBank and Royal Bank to act as Documentation
Agents in accordance with the terms hereof and the other Credit Documents. Barclays is hereby appointed Administrative Agent and Collateral
Agent hereunder and under the other Credit Documents and each Lender hereby authorizes Barclays to act as Administrative Agent and Collateral
Agent in accordance with the terms hereof and the other Credit Documents. Each Agent hereby agrees to act in its capacity as such upon the
express conditions contained herein and the other Credit Documents, as applicable. The provisions of this Section 9 are solely for the benefit of
Agents, Lenders and Lender Counterparties and no Credit Party shall have any rights as a third party beneficiary of any of the provisions thereof.
In performing its functions and duties hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed
to have assumed any obligation towards or relationship of agency or trust with or for Borrower or any of its Subsidiaries. Each of Syndication
Agents and Documentation Agents, without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder
to any of its Affiliates. As of the Closing Date, none of Barclays, Citigroup, Goldman Sachs, Macquarie, MLPFS and Morgan Stanley, in their
capacities as Syndication Agents and Bookrunners, as applicable, shall have any obligations but shall be entitled to all benefits of this Section 9.
As of the Closing Date, neither of KeyBank or Royal Bank, in their capacity as Documentation Agents shall have any obligations but shall be
entitled to all benefits of this Section 9. Each of any Syndication Agent, any Documentation Agent, any Bookrunner and any Agent described in
clause (vi) of the definition thereof may resign from such role at any time, with immediate effect, by giving prior written notice thereof to
Administrative Agent and Borrower.
9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on such Lender’s behalf and to exercise such
powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties
and responsibilities that are expressly specified herein and the other Credit Documents. Each Agent may exercise such powers, rights and remedies
and perform such duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the other Credit Documents, a
fiduciary relationship in respect of any Lender or any other Person; and nothing herein or any of the other Credit Documents, expressed or implied,
is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein.
9.3. General Immunity.
(a) No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by any Agent to Lenders, by or on behalf of any Credit Party to any Agent or any Lender or
by any Lender to Agent or any other Lender in connection with the Credit
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Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Credit Party or any other Person
liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loans or
as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing. Anything
contained herein to the contrary notwithstanding, Administrative Agent shall not have any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts thereof.
(b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by any Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Agent shall be
entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit
Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have
received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under
Section 10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions,
including, for the avoidance of doubt, refraining from any action that, in its opinion or the opinion of its counsel, 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. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent
by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may
be attorneys for Holdings and its Subsidiaries), accountants, experts and other professional advisors selected by it; (ii) no Lender shall have any
right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of
the other Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5); and (iii) except as expressly set forth herein and in the other Credit Documents, no Agent shall have any duty to
disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to
or obtained by such Agent or any of its Affiliates in any capacity.
(c) Delegation of Duties. Administrative Agent may perform any and all of its duties and exercise its rights and powers under this
Agreement or under any other Credit 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 Affiliates.
The exculpatory, indemnification and other provisions of this Section 9.3 and of Section 9.6 shall apply to any Affiliates of Administrative Agent
and shall apply to their respective activities in connection with the
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syndication of the credit facilities provided for herein as well as activities as Administrative Agent. All of the rights, benefits, and privileges
(including the exculpatory and indemnification provisions) of this Section 9.3 and of Section 9.6 shall apply to any such sub-agent and to the
Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named herein.
Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by Administrative Agent, (i) such sub-agent shall be a
third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such
rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other
Person, against any or all of Credit Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to
Administrative Agent and not to any Credit Party, Lender or any other Person and no Credit Party, Lender or any other Person shall have any
rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.
9.4. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose
any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans and the
Letters of Credit, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not
performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include
each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally
engage in any kind of banking, trust, financial advisory or other business with Holdings or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from Borrower for services in connection herewith and otherwise without
having to account for the same to Lenders.
9.5. Lenders’ Representations, Warranties and Acknowledgment.
(a) Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of
Holdings and its Subsidiaries in connection with Credit Extensions hereunder and that it has made and shall continue to make its own appraisal of
the creditworthiness of Holdings and its Subsidiaries. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to
make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any information provided to Lenders.
(b) Each Lender, by delivering its signature page to this Agreement, an Assignment Agreement or a Joinder Agreement and funding
its Revolving Loans on the Closing Date or by the funding of any New Revolving Loans, as the case may be, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent,
Requisite Lenders or Lenders, as applicable on the Closing Date or as of the date of funding of such New Revolving Loans.
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9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent, to the extent that such
Agent shall not have been reimbursed by any Credit Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Agent in exercising its powers, rights and remedies or performing its duties hereunder or under
the other Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement or the other Credit
Documents; provided, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct, as determined by a final, nonappealable judgment of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished; provided, in no event shall this sentence require any Lender to indemnify any Agent against
any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share
thereof; and provided further, this sentence shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
9.7. Successor Administrative Agent, Collateral Agent and Swing Line Lender.
(a) Administrative Agent shall have the right to resign at any time by giving prior written notice thereof to Lenders and Borrower and
Administrative Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to
Borrower and Administrative Agent and signed by Requisite Lenders. Administrative Agent shall have the right to appoint a financial institution
to act as Administrative Agent and/or Collateral Agent hereunder, subject to the reasonable satisfaction of Borrower and the Requisite Lenders,
and Administrative Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation (regardless of
whether a successor has been appointed or not), (ii) the acceptance of such successor Administrative Agent by Borrower and the Requisite
Lenders or (iii) such other date, if any, agreed to by the Requisite Lenders. Upon any such notice of resignation or any such removal, if a
successor Administrative Agent has not already been appointed by the retiring Administrative Agent, Requisite Lenders shall have the right,
upon five Business Days’ notice to Borrower, to appoint a successor Administrative Agent. If neither Requisite Lenders nor Administrative Agent
have appointed a successor Administrative Agent, Requisite Lenders shall be deemed to have succeeded to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent; provided that, until a successor Administrative Agent is so appointed by
Requisite Lenders or Administrative Agent, any collateral security held by Administrative Agent in its role as Collateral Agent on behalf of the
Lenders or Issuing Bank under any of the Credit Documents shall continue to be held by the retiring Collateral Agent as nominee until such time
as a successor Collateral Agent is appointed. Upon the acceptance of any appointment as
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Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or removed
Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all sums, Securities and other items of Collateral held
under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the
duties of the successor Administrative Agent under the Credit Documents, and (ii) execute and deliver to such successor Administrative Agent
such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to
such successor Administrative Agent of the security interests created under the Collateral Documents, whereupon such retiring or removed
Administrative Agent shall be discharged from its duties and obligations hereunder. Except as provided above, any resignation or removal of
Barclays or its successor as Administrative Agent pursuant to this Section 9.7 shall also constitute the resignation or removal of Barclays or its
successor as Collateral Agent. After any retiring or removed Administrative Agent’s resignation or removal hereunder as Administrative Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent
hereunder. Any successor Administrative Agent appointed pursuant to this Section 9.7 shall, upon its acceptance of such appointment, become
the successor Collateral Agent for all purposes hereunder.
(b) In addition to the foregoing, Collateral Agent may resign at any time by giving prior written notice thereof to Lenders and the
Grantors, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered
to the Grantors and Collateral Agent signed by Requisite Lenders. Administrative Agent shall have the right to appoint a financial institution as
Collateral Agent hereunder, subject to the reasonable satisfaction of Borrower and the Requisite Lenders and Collateral Agent’s resignation shall
become effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the acceptance of such successor Collateral Agent by
Borrower and the Requisite Lenders or (iii) such other date, if any, agreed to by the Requisite Lenders. Upon any such notice of resignation or any
such removal, Requisite Lenders shall have the right, upon five Business Days’ notice to Administrative Agent and with the consent of Borrower
(such consent not to be unreasonably withheld or delayed), to appoint a successor Collateral Agent. Until a successor Collateral Agent is so
appointed by Requisite Lenders or Administrative Agent, any collateral security held by Collateral Agent on behalf of the Lenders or Issuing Bank
under any of the Credit Documents shall continue to be held by the retiring Collateral Agent as nominee until such time as a successor Collateral
Agent is appointed. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor
Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed
Collateral Agent under this Agreement and the Collateral Documents, and the retiring or removed Collateral Agent under this Agreement shall
promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder or under the Collateral
Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the
successor Collateral Agent under this Agreement and the Collateral Documents, and (ii) execute and deliver to such successor Collateral Agent or
otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Collateral Agent of the security
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interests created under the Collateral Documents, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and
obligations under this Agreement and the Collateral Documents. After any retiring or removed Collateral Agent’s resignation or removal hereunder
as the Collateral Agent, the provisions of this Agreement and the Collateral Documents shall inure to its benefit as to any actions taken or omitted
to be taken by it under this Agreement or the Collateral Documents while it was the Collateral Agent hereunder.
(c) Any resignation or removal of Barclays or its successor as Administrative Agent pursuant to this Section 9.7 shall also constitute
the resignation or removal of Barclays or its successor as Swing Line Lender, and any successor Administrative Agent appointed pursuant to this
Section 9.7 shall, upon its acceptance of such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event
(a) Borrower shall prepay any outstanding Swing Line Loans made by the retiring or removed Administrative Agent in its capacity as Swing Line
Lender, (b) upon such prepayment, the retiring or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held
by it to Borrower for cancellation, and (c) Borrower shall issue, if so requested by successor Administrative Agent and Swing Line Lender, a new
Swing Line Note to the successor Administrative Agent and Swing Line Lender, in the principal amount of the Swing Line Sublimit then in effect
and with other appropriate insertions.
9.8. Collateral Documents and Guaranty.
(a) Agents under Collateral Documents and Guaranty. Each Secured Party hereby further authorizes Administrative Agent or Collateral
Agent, as applicable, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to
the Guaranty, the Collateral and the Collateral Documents; provided that neither Administrative Agent nor Collateral Agent shall owe any fiduciary
duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with respect to any Hedge
Agreement. Subject to Section 10.5, without further written consent or authorization from any Secured Party, Administrative Agent or Collateral
Agent, as applicable may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by
this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which
Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented or (ii) release any
Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to
give such consent under Section 10.5) have otherwise consented.
(b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of the Credit Documents to the contrary
notwithstanding, Borrower, Administrative Agent, Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any
right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and
remedies hereunder and under any of the Credit Documents may be exercised solely by Administrative Agent or Collateral Agent, as applicable,
for the benefit of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral
Documents may be exercised solely by Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and
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(ii) in the event of a foreclosure or similar enforcement action by Collateral Agent on any of the Collateral pursuant to a public or private sale or
other disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code),
Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k),
Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code,) may be the purchaser or licensor of any or all of such Collateral at any such sale or
other disposition and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective
individual capacities) shall be entitled, upon instructions from Requisite Lenders, for the purpose of bidding and making settlement or payment of
the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on
account of the purchase price for any Collateral payable by Collateral Agent at such sale or other disposition.
(c) Rights under Hedge Agreements. No Hedge Agreement will create (or be deemed to create) in favor of any Lender Counterparty
that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the
Credit Documents except as expressly provided in Section 10.5(c)(v) of this Agreement and Section 10 of the Pledge and Security Agreement. By
accepting the benefits of the Collateral, such Lender Counterparty shall be deemed to have appointed Collateral Agent as its agent and agreed to
be bound by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause (c).
(d) Release of Collateral and Guarantees, Termination of Credit Documents. Notwithstanding anything to the contrary contained herein
or any other Credit Document, when all Obligations (other than contingent or indemnification obligations for which no claim has been made and
obligations in respect of any Hedge Agreement) have been paid in full and all Commitments have terminated or expired and no Letter of Credit shall
be outstanding (other than Letters of Credit as to which other arrangements satisfactory to Issuing Bank shall have been made (which
arrangements may include Cash Collateral or backstop letters of credit satisfactory to Issuing Bank in an amount equal to the Minimum Collateral
Amount)), upon request of Borrower, Collateral Agent and Administrative Agent shall (without notice to, or vote or consent of, any Lender, or any
affiliate of any Lender that is a party to any Hedge Agreement) each take such actions as shall be required to release its security interest in all
Collateral, and to release all guarantee obligations provided for in any Credit Document, whether or not on the date of such release there may be
outstanding Obligations in respect of Hedge Agreements. Any such release of guarantee obligations shall be deemed subject to the provision that
such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby
shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for,
Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(e) Notwithstanding anything to the contrary contained herein or any other Credit Document, in connection with a sale or disposition
of property permitted by this Agreement, upon request of Borrower, Collateral Agent and Administrative Agent shall each (without notice to, or
vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Hedge Agreement) take such actions as shall be required to
release its security interest in such property.
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(f) The Collateral 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 the Collateral Agent’s Lien thereon, or any
certificate prepared by any Credit Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the Lenders for any
failure to monitor or maintain any portion of the Collateral.
9.9. Withholding Taxes. To the extent required by any applicable law, Administrative Agent may withhold from any payment to any Lender
an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that
Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not
delivered or was not properly executed or because such Lender failed to notify Administrative Agent of a change in circumstance which rendered
the exemption from, or reduction of, withholding Tax ineffective or for any other reason, or if Administrative Agent reasonably determines that a
payment was made to a Lender pursuant to this Agreement without deduction of applicable withholding tax from such payment, such Lender shall
indemnify Administrative Agent fully for all amounts paid, directly or indirectly, by Administrative Agent as Tax or otherwise, including any
penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.
9.10. Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim. In case of the pendency of any proceeding under any
Debtor Relief Laws relative to any Credit Party, Administrative Agent (irrespective of whether the principal of any Loan or Obligation under a
Letter of Credit 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 Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies
with such rule’s disclosure requirements for entities representing more than one creditor;
(b) 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 that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the
Lenders, Issuing Bank and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of
Administrative Agent and its respective agents and counsel and all other amounts due Administrative Agent under Sections 2.4, 2.11, 10.2 and
10.3 allowed in such judicial proceeding; and
(c) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized
by each Lender and Issuing Bank to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to
the making of such payments directly to the Lenders and Issuing Bank, 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 Sections 2.11, 10.2 and 10.3. To the extent that the payment of any such compensation, expenses, disbursements and
advances of Administrative Agent, its agents and counsel, and any other amounts due Administrative Agent under Sections 2.11, 10.2 and 10.3
out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other properties that the Lenders or Issuing Banks may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender
any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
SECTION 10. MISCELLANEOUS
10.1. Notices.
(a) Notices Generally. Any notice or other communication herein required or permitted to be given to a Credit Party, Bookrunners,
Syndication Agents, Documentation Agents, Collateral Agent, Administrative Agent, Swing Line Lender or Issuing Bank, shall be sent to such
Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, the address as indicated on
Appendix B or otherwise indicated to Administrative Agent in writing. Except as otherwise set forth in Section 3.2(b) or paragraph (b) below, each
notice hereunder shall be in writing and may be personally served or sent by telefacsimile (except for any notices sent to Administrative Agent) or
United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against
receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly
addressed; provided, no notice to any Agent shall be effective until received by such Agent; provided further, any such notice or other
communication shall at the request of Administrative Agent be provided to any sub-agent appointed pursuant to Section 9.3(c) as designated by
Administrative Agent from time to time.
(b) Electronic Communications.
(i) Notices and other communications to any Agent, Lenders, Swing Line Lender and Issuing Bank hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures
approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Agent, any Lender, Swing Line Lender or
any
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applicable Issuing Bank pursuant to Section 2 if such Person has notified Administrative Agent that it is incapable of receiving notices
under such Section by electronic communication. Administrative Agent or Borrower 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. 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 acknowledgment from the intended
recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), provided that if
such notice or other 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, 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.
(ii) Each Credit Party understands that the distribution of material through an electronic medium is not necessarily secure and
that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such
electronic distribution, except to the extent caused by the willful misconduct or gross negligence of Administrative Agent, as determined by
a final, non-appealable judgment of a court of competent jurisdiction.
(iii) The Platform and any Approved Electronic Communications are provided “as is” and “as available”. None of the Agents or
any of their respective officers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy,
adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or
omissions in the Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including
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 the Agent Affiliates in connection with the Platform or the Approved Electronic Communications.
(iv) Each Credit Party, each Lender, Issuing Bank and each Agent agrees that Administrative Agent may, but shall not be
obligated to, store any Approved Electronic Communications on the Platform in accordance with Administrative Agent’s customary
document retention procedures and policies.
(v) Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of
written notice thereof.
(c) Private Side Information Contacts. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender
to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public
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Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that
is not made available through the “Public Side Information” portion of the Platform and that may contain Non-Public Information with respect to
Holdings, its Subsidiaries or their securities for purposes of United States federal or state securities laws. In the event that any Public Lender has
determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other
Lenders may have availed themselves of such information and (ii) neither Borrower nor Administrative Agent has any responsibility for such
Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Credit Documents.
10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated, and, solely with respect to expenses incurred
prior to the Closing Date, except as may be agreed separately in writing, Borrower agrees to pay promptly (a) all the actual and reasonable costs
and expenses incurred in connection with the negotiation, preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto; (b) all the actual and reasonable costs of furnishing all opinions by counsel for Borrower and the other
Credit Parties; (c) the reasonable fees, expenses and disbursements of counsel to Agents in connection with the negotiation, preparation,
execution and administration of the Credit Documents and any consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Borrower; (d) all the actual costs and reasonable expenses of creating, perfecting, recording, maintaining and
preserving Liens in favor of Collateral Agent, for the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and disbursements of counsel to each Agent and of
counsel providing any opinions that any Agent or Requisite Lenders may reasonably request in respect of the Collateral or the Liens created
pursuant to the Collateral Documents; (e) all the actual costs and reasonable fees, expenses and disbursements of any auditors, accountants,
consultants or appraisers; (f) all the actual costs and reasonable expenses (including the reasonable fees, expenses and disbursements of any
appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or
preservation of any of the Collateral; (g) all other actual and reasonable costs and expenses incurred by each Agent in connection with the
syndication of the Loans and Commitments and the transactions contemplated by the Credit Documents and any consents, amendments, waivers
or other modifications thereto and (h) after the occurrence of a Default or an Event of Default, all costs and expenses, including reasonable
attorneys’ fees and costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of or in collecting any payments due
from any Credit Party hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with
the sale, lease or license of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection
with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work-out” or pursuant to any insolvency or
bankruptcy cases or proceedings.
10.3. Indemnity.
(a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be
consummated, each Credit Party agrees to
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defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent, Lender and their respective affiliates and
each of their respective officers, partners, members, directors, trustees, advisors, employees, agents and sub-agents (each, an “Indemnitee”), from
and against any and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to
any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnitee or
from a material breach of the funding obligations of such Indemnitee, in each case, as determined by a final, non-appealable judgment of a court of
competent jurisdiction. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be
unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum
portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.
(b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each
Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort
or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or
any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith,
and Holdings and Borrower hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
(c) Each Credit Party also agrees that no Lender or Agent nor any of their respective Affiliates, directors, employees, attorneys, agents
or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other
person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or
thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or
omission or event occurring in connection therewith, in each case, except in the case of any Credit Party to the extent that any losses, claims,
damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a
final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, willful misconduct or material
breach of the funding obligations of such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in
performing its obligations under this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or
referred to herein or therein; provided, however, that in no event will such Lender, Agent, or their respective Affiliates, directors, employees,
attorneys, agents or sub-agents have any liability for any indirect, consequential, special or punitive damages in connection with or as a result of
such Lender’s, Agent’s or their respective Affiliates’, directors’, employees’, attorneys’, agents’ or sub-agents’ activities related to this
Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein.
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10.4. Set-Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon
the occurrence of any Event of Default each Lender and Issuing Bank is hereby authorized by each Credit Party at any time or from time to time
subject to the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Credit Party or
to any other Person (other than Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing by such Lender or such Issuing Bank to or for the credit or the
account of any Credit Party against and on account of the obligations and liabilities of any Credit Party to such Lender or such Issuing Bank
hereunder, the Letters of Credit and participations therein and under the other Credit Documents, including all claims of any nature or description
arising out of or connected hereto, the Letters of Credit and participations therein or with any other Credit Document, irrespective of whether or
not (a) such Lender or such Issuing Bank shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other amounts due hereunder shall have become due and payable pursuant to Section 2 and
although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that in the event that any Defaulting Lender
shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to Administrative Agent for further application in
accordance with the provisions of Sections 2.17 and 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of Administrative Agent, the Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall
provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to
which it exercised such right of setoff. The rights of each Lender, Issuing Bank and their respective Affiliates under this Section 10.4 are in
addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Bank or their respective Affiliates may have.
10.5. Amendments and Waivers.
(a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections 10.5(b) and 10.5(c), no amendment, modification,
termination or waiver of any provision of the Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; provided that Administrative Agent may, with the consent of Borrower only,
amend, modify or supplement this Agreement or any other Credit Document (i) to implement the New Revolving Loan Commitments under
Section 2.24 and (ii) to cure any ambiguity, omission, defect or inconsistency (as reasonably determined by Administrative Agent), in each case so
long as such amendment, modification or supplement does not adversely affect the rights of any Lender (or Issuing Bank, if applicable) or the
Lenders shall have received at least five Business Days’ prior written notice thereof and Administrative Agent shall not have received, within five
Business Days of the date of such notice to the Lenders, a written notice from the Requisite Lenders stating that the Requisite Lenders object to
such amendment.
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(b) Affected Lenders’ Consent. Without the written consent of each Lender that would be directly and adversely affected thereby, no
amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not prepayment);
(iii) extend the stated expiration date of any Letter of Credit beyond the Revolving Commitment Termination Date;
(iv) reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan
pursuant to Section 2.10) or any fee or any premium payable hereunder;
(v) extend the time for payment of any such interest, fees or premium;
(vi) reduce the principal amount of any Loan or any reimbursement obligation in respect of any Letter of Credit;
(vii) amend, modify, terminate or waive any provision of Section 2.13(b)(ii), this Section 10.5(b), Section 10.5(c) or any other
provision of this Agreement that expressly provides that the consent of all Lenders is required;
(viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”; provided, with the consent of Requisite Lenders,
additional extensions of credit pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata Share” on
substantially the same basis as the Revolving Commitments and the Revolving Loans are included on the Closing Date;
(ix) release all or substantially all of the Collateral or all or substantially all of the Guarantors from the Guaranty except as
expressly provided in the Credit Documents and except in connection with a “credit bid” undertaken by the Collateral Agent at the direction
of the Requisite Lenders pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition
of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Credit Documents (in which case
only the consent of the Requisite Lenders will be needed for such release); or
(x) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Credit Document;
provided that, for the avoidance of doubt, all Lenders shall be deemed directly and adversely affected thereby with respect to any
amendment described in clauses (vii), (viii), (ix) and (x).
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(c) Other Consents. No amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any
departure by any Credit Party therefrom, shall:
(i) increase any Revolving Commitment of any Lender over the amount thereof then in effect without the consent of such
Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute
an increase in any Revolving Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line Sublimit or the Swing Line Loans without
the consent of Swing Line Lender;
(iii) [Reserved];
(iv) amend, modify, terminate or waive any obligation of Lenders relating to the purchase of participations in Letters of Credit as
provided in Section 2.4(e) without the written consent of Administrative Agent and of Issuing Bank;
(v) amend, modify or waive this Agreement or the Pledge and Security Agreement so as to alter the ratable treatment of
Obligations arising under the Credit Documents and Obligations arising under Hedge Agreements or the definition of “Excluded Hedge
Obligations,” “Lender Counterparty,” “Hedge Agreement,” “Obligations,” “Qualified ECP Guarantor,” “REC Hedge,” “Secured Obligations”
or “Swap Obligations” (as defined in any applicable Collateral Document) in each case in a manner adverse to any Lender Counterparty with
Obligations then outstanding without the written consent of any such Lender Counterparty;
(vi) amend, modify, terminate or waive any provision of the Credit Documents as the same applies to any Agent or Arranger, or
any other provision hereof as the same applies to the rights or obligations of any Agent or Arranger, in each case without the consent of
such Agent or Arranger, as applicable;
(vii) amend Section 1.5(b) or the definition of “Alternative Currency” without the written consent of each Revolving Lender; or
(viii) amend, modify or otherwise affect the rights or duties hereunder or under any other Credit Document of (A) the
Administrative Agent, unless in writing executed by the Administrative Agent, (B) Issuing Bank, unless in writing executed by Issuing
Banks and (C) the Swing Line Lender, unless in writing executed by the Swing Line Lender.
(d) Execution of Amendments, Etc. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit Party in any case shall entitle any Credit Party
to any other or further notice or
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demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this
Section 10.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.
10.6. Successors and Assigns; Participations.
(a) Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any interest
therein may be assigned or delegated by any Credit Party without the prior written consent of all Lenders. 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
and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders and other Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Register. Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such
Commitment or Loan shall be effective, in each case, unless and until recorded in the Register following receipt of a fully executed Assignment
Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees
payable in connection with such assignment, in each case, as provided in Section 10.6(d). Each assignment shall be recorded in the Register
promptly following receipt by Administrative Agent of the fully executed Assignment Agreement and all other necessary documents and
approvals, prompt notice thereof shall be provided to Borrower and a copy of such Assignment Agreement shall be maintained, as applicable. The
date of such recordation of a transfer shall be referred to herein as the “Assignment Effective Date.” Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and
binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.
(c) Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations
under this Agreement, including all or a portion of its Commitment or Loans owing to it or other Obligations (provided, however, that pro rata
assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in
respect of any applicable Loan and any related Commitments):
(i) to any Person meeting the criteria of clause (i) of the definition of the term “Eligible Assignee” with the consent of Issuing
Banks and Swing Line Lender (such consent not to be unreasonably withheld or delayed) and upon the giving of notice to Borrower and
Administrative Agent; and
(ii)(x) by or to an Arranger (or their respective lending Affiliates) in connection with the primary syndication of the Revolving
Facility and (y) to any Person meeting the criteria of clause (ii) of the definition of the term “Eligible Assignee”, in each
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case of clauses (x) and (y) with the consent of Administrative Agent, Issuing Banks, Swing Line Lender and Borrower (such consents not to
be (a) unreasonably withheld or delayed or (b) in the case of Borrower, required at any time an Event of Default shall have occurred and then
be continuing); provided that (A) Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by
written notice to Administrative Agent within 5 Business Days after having received notice thereof and (B) each such assignment pursuant
to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than (w) $1,000,000, (x) such lesser amount as agreed to by Borrower and
Administrative Agent, (y) the aggregate amount of the Loans of the assigning Lender or (z) the amount assigned by an assigning Lender to
an Affiliate or Related Fund of such Lender.
(d) Mechanics.
(i) Assignments and assumptions of Loans and Commitments by Lenders shall be effected by manual execution and delivery to
Administrative Agent of an Assignment Agreement. Assignments made pursuant to the foregoing provision shall be effective as of the
Assignment Effective Date. In connection with all assignments there shall be delivered to Administrative Agent such forms, certificates or
other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver pursuant to Section 2.20(c), together with payment to Administrative Agent of a registration and
processing fee of $3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to
Barclays or any Affiliate thereof or (z) in the case of an assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a
Person under common management with a Lender).
(ii) 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 the 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 and Administrative Agent, the applicable Pro Rata Share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all
payment liabilities then owed by such Defaulting Lender to Administrative Agent, Issuing Bank, Swing Line Lender and each other Lender,
hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans and participations in
Letters of Credit and Swing Line Loans. 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.
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(e) Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof or upon succeeding to an interest
in the Commitments and Loans, as the case may be, represents and warrants as of the Closing Date or as of the Assignment Effective Date that
(i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable
Commitments or Loans, as the case may be; (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or
other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments or
Loans or any interests therein shall at all times remain within its exclusive control); and (iv) it will not provide any information obtained by it in its
capacity as a Lender to Borrower or any Affiliate of Borrower.
(f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6, as of the Assignment Effective Date (i) the assignee
thereunder shall have the rights and obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as reflected in
the Register and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned to the assignee, relinquish its rights (other than any rights which survive the termination
hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an assignment covering all or the remaining portion
of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment Effective Date;
provided, anything contained in any of the Credit Documents to the contrary notwithstanding, (y) Issuing Bank shall continue to have all rights
and obligations thereof with respect to such Letters of Credit until the cancellation or expiration of such Letters of Credit and the reimbursement of
any amounts drawn thereunder and (z) such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified
herein with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments shall be
modified to reflect any Commitment of such assignee and any Revolving Commitment of such assigning Lender, if any; and (iv) if any such
assignment occurs after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes to Administrative Agent for cancellation, and thereupon Borrower shall issue and
deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate
insertions, to reflect the new Revolving Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
(g) Participations.
(i) Each Lender shall have the right at any time to sell one or more participations to any Person (other than Holdings, any of its
Subsidiaries or any of its Affiliates) in all or any part of its Commitments, Loans or in any other Obligation without the consent of Borrower,
Swing Line Lender, any Issuing Bank or any Agent. Each Lender that sells a participation pursuant to this Section 10.6(g) shall, acting solely
for U.S. federal income tax purposes as a non-fiduciary agent of Borrower, maintain a register on which it records the name and address of
each participant and the principal amounts of each participant’s participation interest with respect to the Loans (each, a
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“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 or its other
obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such
disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations. Unless otherwise required by the Internal Revenue Service, any disclosure required by the foregoing
sentence shall be made by the relevant Lender directly and solely to the Internal Revenue Service. 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 a participation with respect to the Loans for all purposes under this Agreement, notwithstanding any notice to the contrary.
(ii) The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would
(A) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the
Revolving Commitment Termination Date) in which such participant is participating, or reduce the rate or extend the time of payment of
interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of
such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the
participant’s participation is not increased as a result thereof), (B) consent to the assignment or transfer by any Credit Party of any of its
rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under the Collateral Documents or all or
substantially all of the Guarantors from the Guaranty (in each case, except as expressly provided in the Credit Documents) supporting the
Loans hereunder in which such participant is participating.
(iii) Borrower agrees that each participant shall be entitled to the benefits of Sections 2.18(c), 2.19 and 2.20 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided, (x) a participant shall not be
entitled to receive any greater payment under Section 2.19 or 2.20 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such participant, unless the sale of the participation to such participant is made with Borrower’s prior
written consent (not to be unreasonably withheld or delayed) and (y) a participant that would be a Non-US Lender if it were a Lender shall
not be entitled to the benefits of Section 2.20 unless it complies with Section 2.20(c) as though it were a Lender (it being understood that any
such form required by Section 2.20(c) shall be delivered to the applicable Lender and not the Borrower or Administrative Agent); provided
further that, except as specifically set forth in clauses (x) and (y) of this sentence, nothing herein shall require any notice to Borrower or any
other Person in connection with the sale of any participation. To the extent permitted by
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law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such participant agrees to be
subject to Section 2.17 as though it were a Lender.
(h) Certain Other Assignments and Participations. In addition to any other assignment or participation permitted pursuant to this
Section 10.6 any Lender may assign, pledge and/or grant a security interest in all or any portion of its Loans, the other Obligations owed by or to
such Lender, and its Notes, if any, to secure obligations of such Lender, including to any Federal Reserve Bank or other central bank having
jurisdiction over such Lender as collateral security pursuant to Regulation A of the Board of Governors and any operating circular issued by such
Federal Reserve Bank or other central bank; provided, that no Lender, as between Borrower and such Lender, shall be relieved of any of its
obligations hereunder as a result of any such assignment and pledge; provided further, that in no event shall the applicable Federal Reserve Bank,
central bank, pledgee or trustee, be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action
hereunder.
10.7. 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 would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
10.8. Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive
the execution and delivery hereof and the making of any Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in Sections 2.17,
9.3(b) and 9.6 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a
Lender, payment of the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any amounts drawn thereunder, and
the termination hereof.
10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or
privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of
any other power, right or privilege. The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in
addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Credit
Documents or any of the Hedge Agreements. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any
such right, power or remedy.
10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of
any Credit Party or any other Person or
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against or in payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or payments to Administrative Agent,
Issuing Bank or Lenders (or to Administrative Agent, on behalf of Lenders or Issuing Bank), or any Agent, Issuing Bank or Lender enforces any
security interests or exercises any right of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other
party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and
continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
10.11. Severability. In case any provision in or obligation hereunder or under any other Credit Document shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit Document, and
no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or
any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender
shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.13. Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
(INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT
MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF
THE STATE OF NEW YORK.
10.15. CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENTS, OR ANY OF THE
OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH
OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT
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MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER THAN
WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY AGREEMENT GOVERNED BY A LAWS
OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO);
(B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE
APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY
IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION
IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY SECURITY DOCUMENT OR THE ENFORCEMENT OF ANY
JUDGMENT.
10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT
DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. 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 CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING
INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH
PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND
THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER
THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO
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ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.17. Confidentiality. Each Agent and each Lender (which term shall for the purposes of this Section 10.17 include Issuing Bank) shall hold
all non-public information regarding Borrower and its Subsidiaries, Affiliates and their businesses identified as such by Borrower and obtained by
such Agent or such Lender pursuant to the requirements hereof in accordance with such Agent’s and such Lender’s customary procedures for
handling confidential information of such nature, it being understood and agreed by Borrower that, in any event, Administrative Agent may
disclose such information to the Lenders and each Agent, each Agent and each Lender may disclose such information with the consent of
Borrower, each Agent and each Lender may disclose such information to any parties to this Agreement, and each Lender and each Agent may
make (i) disclosures of such information to Affiliates of such Lender or Agent and to their respective officers, directors, partners, members,
employees, legal counsel, independent auditors and other advisors, experts or agents who need to know such information and on a confidential
basis (and to other Persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures
otherwise made in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any potential or prospective
assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or any participations
therein or by any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating
to Borrower and its obligations (provided, such assignees, transferees, participants, counterparties and advisors are advised of and agree to be
bound by either the provisions of this Section 10.17 or other provisions at least as restrictive as this Section 10.17), (iii) disclosure to any rating
agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of
any confidential information relating to Credit Parties received by it from any Agent or any Lender, (iv) disclosure on a confidential basis to the
CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans,
(v) disclosures in connection with the exercise of any remedies hereunder or under any other Credit Document, (vi) disclosures made pursuant to
the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or
compulsory legal process (in which case such Person agrees to inform Borrower promptly thereof to the extent not prohibited by law) and
(vii) disclosures made upon the request or demand of any regulatory or quasi-regulatory authority purporting to have jurisdiction over such
Person or any of its Affiliates. In addition, each Agent and each Lender may disclose the existence of this Agreement and the information about
this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agents and the Lenders
in connection with the administration and management of this Agreement and the other Credit Documents. Notwithstanding anything to the
contrary set forth herein, each party (and each of their respective employees, representatives or other agents) may disclose to any and all persons
without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind
(including opinions and other tax analyses) that are provided to any such party relating to such tax treatment and tax structure.
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However, any information relating to the tax treatment or tax structure shall remain subject to the confidentiality provisions hereof (and the
foregoing sentence shall not apply) to the extent reasonably necessary to enable the parties hereto, their respective Affiliates, and their and their
respective Affiliates’ directors and employees to comply with applicable securities laws. For this purpose, “tax structure” means any facts relevant
to the U.S. federal income tax treatment of the transactions contemplated by this Agreement but does not include information relating to the
identity of any of the parties hereto or any of their respective Affiliates.
10.18. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the
Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the
Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking
into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, Borrower shall pay to Administrative Agent
an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest
Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and Borrower to conform strictly to any
applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the
Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the
outstanding amount of the Loans made hereunder or be refunded to Borrower.
10.19. Effectiveness; Counterparts. This Agreement shall become effective upon the execution of a counterpart hereof by each of the
parties hereto and receipt by Borrower and Administrative Agent of written notification of such execution and authorization of delivery thereof.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile or in electronic format (i.e., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this
Agreement.
10.20. Entire Agreement. With the exception of those terms contained in Sections 3, 4, 5 (including Annex A), 7, 8 and 9 of that certain
Hurricane Commitment Letter, dated as of November 17, 2014, among Barclays, Citigroup, Goldman Sachs, Bank of America, N.A. (“BofA”),
MLPFS, Morgan Stanley (together, the “Original Commitment Parties”), and Borrower, as modified by that certain Joinder Agreement dated as
of November 18, 2014, among the Original Commitment Parties, Macquarie, MIHI LLC (“MIHI”) and the Borrower, and as further modified by that
certain Joinder Agreement dated as of January 7, 2015, among the Original Commitment Parties, Macquarie, MIHI, KeyBank, KBCM Bridge LLC,
Royal Bank and the Borrower (the “Commitment Letter”), and the provisions of the Fee Letter (as defined
149
therein), in each case which by the terms of the Commitment Letter remain in full force and effect, all of Barclays’, Citigroup’s, Goldman Sachs’,
Macquarie’s, MLPFS’s, Morgan Stanley’s, KeyBank’s, Royal Bank’s and their respective Affiliates’ other obligations under the Commitment
Letter shall terminate and be superseded by the Credit Documents and Barclays, Citigroup, Goldman Sachs, Macquarie, MLPFS, Morgan Stanley,
KeyBank, Royal Bank and their respective Affiliates’ shall be released from all liability in connection therewith, including any claim for injury or
damages, whether consequential, special, direct, indirect, punitive or otherwise.
10.21. PATRIOT Act. Each Lender and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party
that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies each Credit Party,
which information includes the name and address of each Credit Party and other information that will allow such Lender or Administrative Agent,
as applicable, to identify such Credit Party in accordance with the PATRIOT Act.
10.22. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment
Agreement shall be deemed to include electronic signatures 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.
10.23. No Fiduciary Duty. Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”),
may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their affiliates. Each Credit Party agrees that
nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied
duty between any Lender, on the one hand, and such Credit Party, its stockholders or its affiliates, on the other. The Credit Parties acknowledge
and agree that (i) the transactions contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and thereunder)
are arm’s-length commercial transactions between the Lenders, on the one hand, and the Credit Parties, on the other, and (ii) in connection
therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its
stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the
process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Credit Party, its stockholders or
its Affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and
(y) each Lender is acting solely as principal and not as the agent or fiduciary of any Credit Party, its management, stockholders, creditors or any
other Person. Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed
appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar
duty to such Credit Party, in connection with such transaction or the process leading thereto.
150
10.24. Judgment Currency. In respect of any judgment or order given or made for any amount due under this Agreement or any other Credit
Document that is expressed and paid in a currency (the “Judgment Currency”) other than Dollars, the Credit Parties will indemnify Administrative
Agent, Issuing Bank and any Lender against any loss incurred by them as a result of any variation as between (i) the rate of exchange at which the
Dollar amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii) the rate of exchange, as quoted by
Administrative Agent or by a known dealer in the Judgment Currency that is designated by Administrative Agent, at which Administrative Agent,
Issuing Bank or such Lender is able to purchase Dollars with the amount of the Judgment Currency actually received by Administrative Agent,
Issuing Bank or such Lender. The foregoing indemnity shall constitute a separate and independent obligation of the Credit Parties and shall
survive any termination of this Agreement and the other Credit Documents, and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the
purchase of or conversion into Dollars.
[Remainder of page intentionally left blank]
151
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
TERRAFORM POWER, LLC
By:
/s/ Alejandro Hernandez
Name: Alejandro Hernandez
Title: EVP & CFO
TERRAFORM POWER OPERATING, LLC
152
By:
TERRAFORM POWER, LLC,
its Sole Member and Sole Manager
By:
/s/ Alejandro Hernandez
Name: Alejandro Hernandez
Title: EVP & CFO
SUNEDISON YIELDCO CHILE HOLDCO, LLC
SUNEDISON YIELDCO UK HOLDCO 2, LLC
SUNEDISON YIELDCO UK HOLDCO 3, LLC
SUNEDISON YIELDCO UK HOLDCO 4, LLC
SUNEDISON YIELDCO NELLIS HOLDCO, LLC
SUNEDISON CANADA YIELDCO, LLC
SUNEDISON YIELDCO DG-VIII HOLDINGS, LLC
SUNEDISON YIELDCO DG HOLDINGS, LLC
SUNEDISON YIELDCO REGULUS HOLDINGS, LLC
SUNEDISON YIELDCO ACQ1, LLC
SUNEDISON YIELDCO ACQ2, LLC
SUNEDISON YIELDCO ACQ3, LLC
SUNEDISON YIELDCO ACQ4, LLC
SUNEDISON YIELDCO ACQ5, LLC
SUNEDISON YIELDCO ACQ6, LLC
SUNEDISON YIELDCO ACQ7, LLC
SUNEDISON YIELDCO ACQ8, LLC
SUNEDISON YIELDCO ACQ9, LLC
153
SUNEDISON YIELDCO, DGS HOLDINGS, LLC
SUNEDISON YIELDCO, ENFINITY HOLDINGS, LLC
TERRAFORM POWER IVS I HOLDINGS, LLC
TERRAFORM REC ACQ HOLDINGS, LLC
TERRAFORM SOLAR HOLDINGS, LLC
TERRAFORM LPT ACQ HOLDINGS, LLC
TERRAFORM UK1 ACQ HOLDINGS, LLC
TERRAFORM CD ACQ HOLDINGS, LLC
TERRAFORM SOLAR XVII ACQ HOLDINGS, LLC
TERRAFORM FIRST WIND ACQ, LLC
154
By:
TERRAFORM POWER OPERATING, LLC, its Sole
Member and Sole Manager
By:
TERRAFORM POWER, LLC,
its Sole Member and Sole Manager
By:
/s/ Alejandro Hernandez
Name: Alejandro Hernandez
Title: EVP & CFO
BARCLAYS BANK PLC,
as Administrative Agent, Collateral Agent, an Arranger, a
Syndication Agent, a Bookrunner and a Lender
By:
155
/s/ Ann E. Sutton
Authorized Signatory
GOLDMAN SACHS BANK USA,
as an Arranger, a Syndication Agent, a Bookrunner and a
Lender
By:
156
/s/ Robert Ehudin
Authorized Signatory
MORGAN STANLEY SENIOR FUNDING, INC.,
as a Lender
By:
Title:
157
/s/ Henrik Sandstrom
Authorized Signatory
MORGAN STANLEY BANK, N.A.,
as a Lender
By:
Title:
158
/s/ Jon Rauen
Authorized Signatory
BANK OF AMERICA, N.A.,
as an Issuing Bank and a Lender
By:
Title:
159
/s/ Patrick Engel
Director
CITIBANK, N.A.,
as a Lender
By:
Title:
160
/s/ Kirkwood Roland
Managing Director &
Vice President
CITIBANK, N.A.,
as an Issuing Bank
By:
Title:
161
/s/ Kirkwood Roland
Managing Director &
Vice President
MIHI LLC,
as a Lender
162
By:
Title:
/s/ Caleb Hsieh
Authorized Signatory
By:
Title:
/s/ Michael Silverton
Authorized Signatory
KEYBANK NATIONAL ASSOCIATION,
as a Lender and an Issuing Bank
By:
Title:
163
/s/ Lisa A. Ryder
Vice President
ROYAL BANK OF CANADA,
as a Lender
By:
Title:
164
/s/ D. Scott McMurtry
Authorized Signatory
APPENDIX A
TO CREDIT AND GUARANTY AGREEMENT
Revolving Commitments
Lender
Revolving Commitment
Barclays Bank PLC
Goldman Sachs Bank USA
Morgan Stanley Senior Funding, Inc.
Morgan Stanley Bank, N.A.
Bank of America, N.A.
Citibank, N.A.
MIHI LLC
KeyBank National Association
Royal Bank of Canada
Total
$
$
$
$
$
$
$
$
$
$
APPENDIX A-1
75,000,000
75,000,000
15,000,000
60,000,000
75,000,000
75,000,000
75,000,000
50,000,000
50,000,000
550,000,000
Pro Rata Share
13.63636364%
13.63636364%
2.72727272%
10.90909090%
13.63636364%
13.63636364%
13.63636364%
9.09090909%
9.09090909%
100%
APPENDIX B
TO CREDIT AND GUARANTY AGREEMENT
Notice Addresses
TERRAFORM POWER, LLC AND ITS SUBSIDIARIES
TerraForm Power, LLC
12500 Baltimore Avenue
Beltsville, MD 20705
Attention: CFO
Fax: (443) 909-7150
Email: ahernandez@terraform.com
with a copy to:
TerraForm Power, LLC
12500 Baltimore Avenue
Beltsville, MD 20705
Attention: General Counsel
Fax: (443) 909-7150
Email: sdeschler@terraform.com
BARCLAYS BANK PLC,
Administrative Agent’s Principal Office and as Lender:
Barclays Bank PLC
745 Seventh Avenue
New York, NY 10019
Attention: Mathew Cybul
Facsimile: 212-526-5115
Telephone: 212-526-5851
Email: Mathew.cybul@barclays.com
with a copy to:
Barclays Capital Services LLC
1301 Sixth Avenue
New York, NY 10019
Attention: Sookie Siew
Facsimile: 917-522-0569
Telephone: 212-320-7205
Email: xraUSLoanOps5@BarclaysCapital.com; sookie.siew@barclays.com
BARCLAYS BANK PLC,
in its capacity as Issuing Bank:
Barclays Bank PLC
Letter of Credit Department
200 Park Avenue
New York, NY 10166
Attention: Dawn Townsend
Facsimile: 212-412-5011
Telephone: 212-320-7534
Email: Dawn.Townsend@barclays.com; XraLetterofCredit@barclayscapital.com
BANK OF AMERICA, N.A.
100 N. Tryon St, NC1-007-17-18
Charlotte, NC 28255-0001
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
One Bryant Park
New York, NY 10036
CITIGROUP GLOBAL MARKETS INC.
CITIBANK, N.A.
390 Greenwich Street
New York, New York 10013
GOLDMAN SACHS BANK USA
200 West Street
New York, New York 10282
MACQUARIE CAPITAL (USA) INC.
MIHI LLC
125 West 55th Street
New York, New York 10019
MORGAN STANLEY SENIOR FUNDING, INC.
MORGAN STANLEY BANK, N.A.
1300 Thames Street Wharf, 4th Floor
Baltimore, MD 21231
KEYBANK NATIONAL ASSOCIATION
127 Public Square
Cleveland, Ohio 44114
ROYAL BANK OF CANADA
200 Vesey Street
New York, New York 10281
Schedule 1.1
Certain Letters of Credit
Issuing Bank
LC No.
Original
Applicant
Applicant
Beneficiary
KeyBank
S323079
Hawaiian Island Holdings,
LLC
TerraForm Power Operating,
LLC
KeyBank
S323080
KeyBank
S323081
Hawaiian Island Holdings,
LLC
Hawaiian Island Holdings,
LLC
TerraForm Power Operating,
LLC
TerraForm Power Operating,
LLC
KeyBank
S323120
KeyBank
S323040
KeyBank
S321420
KeyBank
S323029
KeyBank
S323004
Hawaiian Island
Holdings, LLC
Northeast Wind Capital II,
LLC
Evergreen Wind Power III,
LLC
Northeast Wind Capital II,
LLC
Northeast Wind Capital II,
LLC
TerraForm Power Operating,
LLC
TerraForm Power Operating,
LLC
TerraForm Power Operating,
LLC
TerraForm Power Operating,
LLC
TerraForm Power Operating,
LLC
State of Hawaii Department
of Land and Natural
Resources
Hawaii Department of Land
and Natural Resources
State of Hawaii Department
of Land and Natural
Resources
Hawaiian Electric Company,
Inc.
ISO New England Inc.
Vitol Inc.
Town of Hamburg
Vermont Public Service
Board
Amount
$
500,000.00
$
500,000.00
$
554,590.00
$ 1,200,000.00
$
500,000.00
$10,300,000.00
$
160,000.00
$ 1,520,245.17
Schedule 5.18
Post-Closing Obligations
•
Promptly, but in any event within ten (10) Business Days after the Closing Date (or such later date agreed to by Administrative Agent),
Holdings shall deliver to Administrative Agent all original signature pages to the Intercompany Note and accompanying endorsement
thereto.
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