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Sunpower Corp – ‘10-Q’ for 7/3/16 – ‘EX-10.61’

On:  Tuesday, 8/9/16, at 7:08pm ET   ·   As of:  8/10/16   ·   For:  7/3/16   ·   Accession #:  867773-16-145   ·   File #:  1-34166

Previous ‘10-Q’:  ‘10-Q’ on 5/6/16 for 4/3/16   ·   Next:  ‘10-Q’ on 11/10/16 for 10/2/16   ·   Latest:  ‘10-Q’ on 12/18/23 for 10/1/23   ·   1 Reference:  By:  SunPower Corp. – ‘10-K’ on 2/22/21 for 1/3/21

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  As Of               Filer                 Filing    For·On·As Docs:Size

 8/10/16  Sunpower Corp                     10-Q        7/03/16   83:21M

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EXECUTION VERSION

CREDIT AGREEMENT

among

SunPower Revolver HoldCo I, LLC,

as Borrower

MIZUHO BANK, LTD.,

as Lead Arranger, Administrative Agent and Documentation Agent

MIZUHO BANK (USA),

as Collateral Agent

MIZUHO BANK, LTD. AND GOLDMAN SACHS BANK USA,
as Issuing Banks

and

THE LENDERS PARTY THERETO

May 4, 2016

TABLE OF CONTENTS

Page

INDEX OF EXHIBITS

INDEX OF SCHEDULES

INDEX OF ANNEXES

CREDIT AGREEMENT

This CREDIT AGREEMENT (this “Agreement”), dated as of May 4, 2016, by and among SunPower Revolver HoldCo I, LLC, a Delaware limited liability company (the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement as Lenders, MIZUHO BANK, LTD., as Lead Arranger (in such capacity, the “Lead Arranger”), Administrative Agent (in such capacity, the “Administrative Agent”), Documentation Agent (in such capacity, the “Documentation Agent”) and an Issuing Bank, MIZUHO BANK (USA), as Collateral Agent (in such capacity, the “Collateral Agent”) and GOLDMAN SACHS BANK USA, as an Issuing Bank.

The Borrower has, subject to the terms and conditions set forth in this Agreement, requested that (a) the Lenders make loans to the Borrower and provide other extensions of credit, for the benefit of a Project Company and the Borrower, to fund, among other things, (i) certain Project Costs in respect of a Project, up to the amounts specified in this Agreement and (ii) any Drawings on the Letters of Credit and (b) the Issuing Bank to issue the Letters of Credit. The Lenders are willing to make such loans and provide such other extensions of credit upon the terms and subject to the conditions of this Agreement.

RECITALS

AGREEMENT

In consideration of the agreements herein and in the other Loan Documents and in reliance upon the representations and warranties set forth herein and therein, the parties agree as follows:

ARTICLE 1.

DEFINITIONS

1.1           Definitions. Except as otherwise expressly provided, capitalized terms used in this Agreement (including in the preamble hereto) and its exhibits shall have the meanings given in this Section 1.1.

“1934 Act” means the Securities Exchange Act of 1934, as amended.

“Acceptable Credit Support” has the meaning given to such term in the Equity Contribution Agreement.

“Additional Project Agreements” means, collectively, any contract or agreement entered into by (i) the Borrower and any Holdco after the Signing Date and (ii) any other Borrower Party

subsequent to the Initial Project Construction Loan Date for the applicable Project that either (a) replaces or is entered into in substitution of an existing Material Project Document, and any further replacement or substitution thereof or (b) obligates any party thereto to make payments in an aggregate amount exceeding $250,000 in any fiscal year or $500,000 in the aggregate over the term of such contract.

“Administrative Agent” means Mizuho Bank, Ltd., in its capacity as administrative agent for the Lenders, or its successors or assigns appointed pursuant to the terms of this Agreement.

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote more than 10% of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“Agent Fee Agreement” means the Fee Letter Agreement, dated as of the date hereof, by and between the Borrower and Mizuho Bank, Ltd., as Administrative Agent, Depositary Bank and Collateral Agent.

“Agent Indemnitee” has the meaning given to such term in Section 8.7.

“Agents” means, collectively or individually, depending on the context, the Administrative Agent, the Collateral Agent, and the Documentation Agent.

“Agreement” has the meaning given to such term in the preamble to this Agreement.

“Anti-Corruption Laws” has the meaning given to such term in Section 4.32(c).

“Applicable Margin” means for each Type of Loan during each applicable period set forth in the table shown below, the applicable per annum percentage under the relevant column heading below:

“Applicable Permit” means, at any time, any Permit to be obtained by or on behalf of a Borrower Party, including any such Permit relating to zoning, environmental, wildlife or natural resource protection, archaeological and cultural resources, wetlands, pollution, sanitation, ERO, NERC, FPA, FERC, PUHCA 2005, any state public utility commission, safety, siting or building, importation of technology, equipment and materials, that is (a) material and necessary at such time in light of the stage of development, construction or operation of the Project to construct, test, operate, maintain, repair, own or use the Project as contemplated by the Operative Documents, to sell electricity therefrom, to enter into any Operative Document or to consummate any transaction contemplated thereby; (b) necessary so that (i) none of the Agents, the Lenders, the Issuing Banks or any Affiliate of any of them may be deemed by any Governmental Authority to be subject to regulation under the FPA or PUHCA 2005 or under applicable state law, respecting the regulation of electrical corporations solely as a result of a Borrower Party’s construction, operation, ownership or control of a Project or the sale of electricity therefrom by such Borrower Party (except in the event that any of the Agents, the Lenders, or any Affiliate of any of them exercises remedies under the Operative Documents or otherwise becomes the owner or operator of the Project or directs the sale of electricity therefrom), or (ii) none of the Borrower nor any Affiliate of the Borrower that is a party to an Operative Document may be deemed by any Governmental Authority to be subject to, or not exempt from, regulation under the federal access to books and records provisions of PUHCA 2005, or under any financial, organizational or rate regulation as a “public utility” or “electric utility” under applicable state law, or (c) listed as such on Schedule 4.15.

“Approved Fund” has the meaning given to such term in Section 9.7(b).

“Asset Management Agreements” and “Asset Management Agreement” shall have the respective meanings given on Schedule 1.1B of this Agreement.

“Assignee” has the meaning given to such term in Section 9.7(b)(i).

“Assignment and Assumption” means an Assignment and Assumption, substantially in the form of Exhibit D to this Agreement.

“Available Amount” has the meaning given to such term in Section 2.16(a)(ii).

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Base Case Model” means the Closing Date Base Case Model, as updated pursuant to Section 3.2(k).

“Base Rate” means, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate for such day plus 0.50% and (c) the LIBOR Rate for a LIBOR Loan with a one-month interest period commencing on such day plus 1%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Rate, respectively.

“Base Rate Loans” means Loans that bear interest at rates based upon the Base Rate.

“Benefited Lender” has the meaning given to such term in Section 9.8(a).

“Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).

“Borrower” has the meaning given to such term in the preamble hereto.

“Borrower Parties” means, collectively, Borrower, each Holdco and each applicable Project Company, and “Borrower Party” means any one of the Borrower Parties.

“Borrowing” means a borrowing or advance of credit under this Agreement.

“Breakage Costs” has the meaning given to such term in Section 2.21.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in either New York City or London are authorized or required by law to close; provided, that with respect to notices and determinations in connection with, and payments of principal and interest on, LIBOR Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.

“Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“Capital Stock” 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) and any and all warrants, rights or options to purchase any of the foregoing.

“Cash Collateral” has the meaning given to such term in Section 2.16(o).

“Casualty Event” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

“Change of Control” means (i) SunPower Corporation failing to have the power, directly or indirectly, to direct or cause the direction of the management, operation and policies of the Borrower and the construction, operation and management of each Project, through the ownership of voting interests or (ii) Pledgor failing to directly own 100% of the equity interest in the Borrower.

“Class” means, when used in reference to any Loan, whether such Loan is a Construction Loan, DSR LC Loan or Project LC Loan and, when used in reference to any Commitment, whether such Commitment is a Construction Loan Commitment, DSR LC Commitment or Project LC Commitment.

“COD” has the meaning given to such term in Schedule 1.1B.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means all property of the Loan Parties, now owned, leased, or hereafter acquired, upon which a Lien is purported to be created by any Security Document.

“Collateral Accounts” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

“Collateral Agent” means Mizuho Bank (USA), as collateral agent for the Secured Parties, together with any of its successors appointed pursuant to the Loan Documents.

“Commitment Fee Rate” means 0.50% per annum.

“Commitments” means the Construction Loan Commitments and the LC Commitments.

“Conduit Lender” means any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Sections 2.19, 2.20, 2.21 or 9.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Commitment.

“Consents” has the meaning given to such term in Section 3.2(v).

“Construction Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement, including any sub-account thereof opened in respect of each applicable Project.

“Construction Budget and Schedule” means a detailed schedule of the development and construction of each applicable Project, a detailed total Project budget and an indicative monthly

draw-down schedule for each applicable Project, each as prepared by the Borrower and approved by the Administrative Agent and the Lenders (in consultation with the Independent Engineer) as of the Initial Project Construction Loan Date for each Project, in the form of Exhibit E to this Agreement (as modified in accordance with Section 6.9(a)), and containing a detailed description of Project Costs incurred and expected to be incurred with respect to the development and construction of each applicable Project, in each case for the period commencing on the date of the applicable Construction Budget and Schedule through the expected date of Final Completion for such Project.

“Construction Loan” has the meaning given to such term in Section 2.1.

“Construction Loan Availability Period” means for the Construction Loans allocated to each Project, the period commencing on the first date upon which the Borrower satisfies the conditions precedent set forth in Sections 3.2 and 3.3 for such Project (or such conditions precedent are waived in accordance therewith) and ending on the earlier of (a) November 4, 2020; (b) COD for such Project, (c) the date such Construction Loan has been repaid in full, (d) the date any Tax Equity Investor has fully funded its commitment under the Tax Equity Documents related to such Project and (e) the date the Construction Loan Commitments are earlier cancelled or expire pursuant to this Agreement.

“Construction Loan Commitments” means, with respect to any Lender, the commitment of such Lender, if any, to make Construction Loans in an aggregate principal amount not to exceed the amount, expressed as a Dollar amount, set forth under the heading “Construction Loan Commitment” opposite such Lender’s name on Schedule 1.1A, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Construction Loan Commitment, as applicable, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender under Section 9.7. The aggregate amount of the Construction Loan Commitments on the Signing Date is $191,100,000, which is allocated to each Project in accordance with Annex 2.

“Construction Loan Facility” has the meaning given to such term in the definition of Facilities.

“Construction Loan Maturity Date” means, with respect to each Construction Loan allocated to each Project, the earlier of (a) the Date Certain for such Project and (b) the Final Maturity Date.

“Construction Loan Notes” means the notes provided for under Section 2.15.

“Construction Loan Notice of Borrowing” has the meaning given to such term in Section 2.2.

“Construction Management Agreements” and “Construction Management Agreement,” have the respective meanings in Schedule 1.1B of this Agreement.

“Construction Managers” and “Construction Manager” have the respective meanings given in Schedule 1.1B of this Agreement.  

“Construction Status Report” has the meaning given to such term in Section 5.17.

“Consumer Price Index” means the Consumer Price Index, “All Urban Consumers; U.S. City Average,” as published by the U.S. Department of Labor, Bureau of Labor Statistics, or if such index shall cease to be published, such other index as shall be reasonably selected by the Administrative Agent and the Borrower.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Date Certain” for each Project, has the meaning given to such term in Schedule 1.1B for such Project.

“Debt Service” means an amount equal to all principal including, without duplication, all amounts overdue and not paid when due, of the unpaid principal amount of the Loans, and any interest and fees accrued with respect to the Loans and Letters of Credit, then due and payable by the Borrower under any Loan Document (including, without duplication of interest amounts payable under this Agreement).

“Debt Service Reserve Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement, and shall include any sub-account established for each Project thereunder.

“Deed of Trust” means each Deed of Trust, Mortgage, Security Agreement, Assignment of Leases, Rents and Profits, Financing Statement, Fixture Filing and Request for Notice or similar agreement, delivered pursuant to Section 3.2(a) on the Initial Project Construction Loan Date for such Project (excluding Small Projects) made by the Borrower in favor of the Collateral Agent for the benefit of the Secured Parties, in form and substance satisfactory to the Administrative Agent, the Borrower and the Lenders.

“Default” means any occurrence, circumstance or event, or any combination thereof, which, with the lapse of time, the giving of notice or both, would constitute an Event of Default.

“Default Rate” has the meaning given to such term in Section 2.13(c).

“Defaulting Lender” means, subject to Section 2.23(b), any Lender that (a) has failed to perform any of its funding obligations hereunder or to perform any of its obligations to issue a Letter of Credit, including in respect of its Construction Loans, within two (2) Business Days of the date required to be funded by it hereunder, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding or issuance obligations or has made a public statement to that effect with respect to its funding or issuance obligations hereunder or under other agreements generally in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Construction Loan or issue a Letter of Credit hereunder and

states that such position is based on such Lender’s reasonable determination that a condition precedent to funding or issuance (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after request by the Administrative Agent to confirm in writing that it will comply with its funding or issuance obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), (d) is subject to a Bail-In Action; or (e) has (i) become the subject of a proceeding under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of 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 Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

“Deferred Development Fee” for each Project, has the meaning given to such term in Schedule 1.1B for such Project.

“Delay Liquidated Damages” has the meaning given to such term in the Depositary Agreement.

“Depositary Agreement” means that certain Depositary Agreement, dated prior to the initial Construction Loan Borrowing Date, among the Borrower, the Administrative Agent, the Collateral Agent and the Depositary Bank, in form and substance acceptable to the Administrative Agent, the Borrower and the Lenders.

“Depositary Bank” means Mizuho Bank, Ltd., in its capacity as Depositary Bank as defined in and as acting under the Depositary Agreement, or its successor or assign appointed pursuant to the terms of the Depositary Agreement.

“Developer” for each Project, has the meaning given to such term in Schedule 1.1B for such Project.

“Development Services Agreement” for each Project, has the meaning given to such term in Schedule 1.1B for such Project.

“Distribution Conditions” has the meaning given to such term in the Depositary Agreement.

“Documentation Agent” has the meaning given to such term in the preamble of this Agreement.

“Dollars” and “$” means United States dollars or such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts in the United States of America.

“Drawing” means a drawing by the applicable beneficiary on a Letter of Credit.

“DSR Issuing Bank” means each of (i) Mizuho Bank, Ltd.; (ii) Goldman Sachs Bank USA, in each such case, in its capacity as issuing bank of a DSR Letter of Credit and (iii) any other Lenders which agree to issue Letters of Credit hereunder.

“DSR LC Commitment” means with respect to each DSR Issuing Bank, the commitment of each DSR Issuing Bank to issue and continue to make available each DSR Letter of Credit for each Project and make DSR LC Loans to the Borrower in respect of each such DSR Letter of Credit, in an aggregate stated or principal amount at any one time not to exceed the amount, expressed as a Dollar amount, set forth under the heading “DSR LC Commitment” opposite each such DSR Issuing Bank’s name on Schedule 1.1A, as such amount may be reduced from time to time pursuant to Section 2.10 (and, in respect of each Project, as such amount has been allocated to each Project pursuant to Annex 2). The aggregate amount of the DSR LC Commitments of each DSR Issuing Bank on the Signing Date shall be with respect to (i) Mizuho Bank, Ltd. DSR Issuing Bank, $3,100,000 and (ii) Goldman Sachs Bank USA DSR Issuing Bank, $900,000.

“DSR LC Facility” has the meaning given to such term in the definition of Facilities.

“DSR LC Loan” means any loan made to the Borrower by the DSR Issuing Bank as a result of a Drawing on a DSR Letter of Credit issued by such DSR Issuing Bank as set forth in Section 2.16(e).

“DSR Letter of Credit” means each irrevocable standby letter of credit to be issued pursuant to Section 2.16, for the account of the Borrower by each DSR Issuing Bank for the benefit of the Administrative Agent in respect of each applicable Project, in form and substance acceptable to the Administrative Agent and the Lenders and in a maximum stated amount not to exceed the (i) DSR LC Commitment of each such DSR Issuing Bank and (ii) the DSR LC Commitment allocated to such Project (as set forth on Annex 2).

“DSR Requirement” means, with respect to any Project, an amount equal to the aggregate amount of interest projected (as of such Project’s COD) to be due and payable with respect to the Loans made to such Project from such Project’s COD until the Date Certain for such Project, as set forth on Annex 2.

“ECCA Parent Guarantor” means SunPower Corporation, in its capacity as guarantor under the ECCA Parent Guaranty.

“ECCA Guaranty” has the meaning given to such term in Schedule 1.1B.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of  

an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Environment” means ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface, soil or subsurface strata or sediment, or natural resources such as flora and fauna.

“Environmental Claim” means any and all actions, suits, demands, demand letters, written claims, Liens, notices of non-compliance or violation, written notices of liability or potential liability, investigations, proceedings, directives, orders or agreements relating to Environmental Law or common law or the release of or human exposure to any Hazardous Substance.

“Environmental Consultant” means an environmental consultant selected by the Borrower and reasonably acceptable to the Administrative Agent, or any successor appointed pursuant to Section 9.9.

“Environmental Law” means any and all federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority regulating, relating to or imposing liability or standards of conduct concerning protection of human health, natural resources or the Environment or that give rise to liability based on impermissible exposure to Hazardous Substances, as now or may at any time hereafter be in effect.

“Environmental Site Assessments” means the Phase I Environmental Site Assessments identified on Schedule 1.1C, including all exhibits and appendices and all other attachments thereto.

“EPC Agreements” and “EPC Agreement” shall have the respective meanings given on Schedule 1.1B of this Agreement.

“EPC Contractors” and “EPC Contractor” shall have the respective meanings given on Schedule 1.1B of this Agreement.

“EPC Parent Guarantees” and “EPC Parent Guaranty” have the respective meanings given on Schedule 1.1B of this Agreement.

“EPC Parent Guarantors” and “EPC Parent Guarantor” have the respective meanings given on schedule 1.1B of this Agreement.  

“Equator Principles” means those principles and standards set forth in “The Equator Principles III - 2013”, as currently available at www.equatorprinciples.com, as amended from time to time, to the extent required by Lender internal policy.

“Equity Commitment” has the meaning given to such term in the Equity Contribution Agreement.

“Equity Contribution” has the meaning given to such term in the Equity Contribution Agreement.

“Equity Contribution Agreement” has the meaning given to such term in Schedule 1.1B for such Project.

“Equity Contribution Documents” means the Equity Contribution Agreement, the ECCA Parent Guaranty and any Acceptable Credit Support.

“Equity Investor” has the meaning given to such term in the Equity Contribution Agreement.

“Equity Requirement” has the meaning given to such term in the Equity Contribution Agreement.

“ERO” means the Electric Reliability Organization, within the meaning of Section 215(a)(2) of the FPA.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414 of the Code.

“ERISA Event” means (a) any Reportable Event; (b) the existence with respect to any ERISA Plan of a non-exempt Prohibited Transaction; (c) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Section 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan), whether or not waived; (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure by any Loan Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (e) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (f) a determination that any Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (g) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the incurrence by any Loan Party or any ERISA Affiliate of

any liability with respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; (i) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, in Reorganization or in endangered or critical status, within the meaning of Section 432 of the Code or Section 305 of ERISA; and (j) with respect to any Foreign Plan or Foreign Benefit Arrangement, (A) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan or Foreign Benefit Arrangement; (B) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan or Foreign Benefit Arrangement required to be registered; or (C) the failure of any Foreign Plan or Foreign Benefit Arrangement to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan or Foreign Benefit Arrangement.

“ERISA Plan” means any employee benefit plan as defined in Section 3(3) of ERISA, (whether or not subject to ERISA) including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Loan Party or any ERISA Affiliate is (or if such plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Event of Default” and “Events of Default” have the meanings given in Article 7.

“Event of Loss” means a single insured event or a related series of insured events causing any loss of, destruction of or damage to, or any condemnation or other taking of (including by eminent domain), of all or any portion of the property or assets of the Borrower.

“EWG” means an “exempt wholesale generator,” as such term is defined in Section 1262(6) of PUHCA 2005 and the FERC’s implementing regulations at 18 C.F.R. § 366.1.

“Facilities” means (a) the Construction Loan Commitments and the Construction Loans made thereunder (the “Construction Loan Facility”), (b) the DSR LC Commitments and the DSR Letters of Credit and DSR LC Loans made thereunder (the “DSR LC Facility”) and (c) the Project LC Commitments and the Project Letters of Credit and Project LC Loans made thereunder (the “Project LC Facility”).

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations, published guidance or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any inter-governmental agreement (together with any law implementing such agreement including any U.S. or non-U.S. regulations or guidance notes).

“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three (3) federal funds brokers of recognized standing selected by it.

“Fee Payment Date” means (a) the last day of each June and December of each year falling after the date hereof and (b) each applicable Construction Loan Maturity Date and LC Loan Maturity Date.

“FERC” means the Federal Energy Regulatory Commission, or its successor.

“Final Completion” for each Project, has the meaning given to such term in Schedule 1.1B.

“Final Discharge Date” means the date when all Obligations (excluding contingent indemnification and other provisions, that, by their express terms, survive the repayment of the Loans, interest, fees and other amounts owed under this Agreement) of the Borrower under this Agreement and the other Loan Documents have been indefeasibly paid in full in immediately available funds, no Commitments remain outstanding and the Letters of Credit have expired by their terms or been terminated by their beneficiaries (pursuant to documentation reasonably acceptable to the Administrative Agent and the Issuing Banks).

“Final Maturity Date” means the earlier of (i) the date of acceleration of the Construction Loans under this Agreement and (ii) May 4, 2021.

“Foreign Benefit Arrangement” means any employee benefit arrangement mandated by non-U.S. law that is maintained or contributed to by any Loan Party, or by any ERISA Affiliate.

“Foreign Plan” means each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is not subject to U.S. law and is maintained or contributed to by any Loan Party, or by any ERISA Affiliate.

“FPA” means the Federal Power Act, as amended, and FERC’s implementing regulations.

“GAAP” means generally accepted accounting principles in the United States as in effect from time to time.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).

“Governmental Rule” means any law, rule, regulation, ordinance, order, code interpretation, judgment, decree, binding directive, or similar form of binding decision of any Governmental Authority.

“Guaranty and Security Agreement” means each Guaranty and Security Agreement, required to be executed and delivered pursuant to Section 3.2, dated as of the Initial Project Construction Loan Date for each Project, by and between each Project Company and the Collateral Agent (for the benefit of the Secured Parties), in form and substance acceptable to the Administrative Agent, the Borrower and the Lenders.

“Guaranty, Pledge and Security Agreement” means each Guaranty, Pledge and Security Agreement, required to be executed and delivered pursuant to Section 3.2, dated as of the Initial Project Construction Loan Date for each Project, by and between each Holdco and the Collateral Agent (for the benefit of the Secured Parties), in form and substance acceptable to the Administrative Agent, the Borrower and the Lenders.

“Guarantee” as to any Person (the “guaranteeing person”), means any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any Letter of Credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

“Hazardous Substances” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances, petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature, which in each case is or becomes subject to regulation or which can give rise to liability under any Environmental Law.

“Holdco” has the meaning given to such term in Schedule 1.1B; provided, however, that any such Holdco shall cease to be a Holdco hereunder on its respective Project Discharge Date (to the extent that the Project Discharge Date has been achieved for all Project Companies owned by such Holdco).

“Improvements” has the meaning, with respect to a Project, given to such term in the applicable Deed of Trust, or if there is not a Deed of Trust for such Project, the meaning on Schedule 1.1(B).

“Indebtedness” of any Person at any date, means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all redeemable preferred Capital Stock of such Person, (h) all Guarantee obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, and (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor.

“Indemnified Liabilities” has the meaning given to such term in Section 9.5.

“Indemnitee” has the meaning given to such term in Section 9.5.

“Independent Consultants” means, collectively, the Insurance Consultant, the Independent Engineer, the Transmission Consultant, the Environmental Consultant and the Solar Resource Consultant or their successors appointed pursuant to Section 9.9.

“Independent Engineer” means Leidos or its successor appointed pursuant to Section 9.9.

“Initial Project Construction Loan Date” means the date when each of the conditions to the initial Borrowing for a Project set forth in Sections 3.2 and 3.3 has been satisfied (or waived in writing by the Administrative Agent and the Lenders).

“Initial Project Construction Loan Equity Contribution” means any Project Costs paid by a Borrower Party or any Affiliate of such Borrower Party in respect of a Project prior to the Initial Project Construction Loan Date for such Project as confirmed by the Independent

Engineer on Initial Project Construction Loan Date, in an amount at least equal to 10% of Project Costs for such Project.

“Insolvent” means, with respect to any Multiemployer Plan, the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.

“Insurance Consultant” means Moore-McNeil, LLC, or its successor appointed pursuant to Section 9.9.

“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

“Interconnection Agreements” and “Interconnection Agreement” shall have the respective meanings provided in Schedule 1.1B of this Agreement.

“Interconnectors” and “Interconnector” shall have the respective meanings provided on Schedule 1.1B of this Agreement.

“Interest Payment Date” means, (i) as to any Base Rate Loan, the last day of each March, June, September and December (or, if an Event of Default is in existence, the last day of each calendar month) to occur while such Loan is outstanding and the final maturity date of such Loan, (ii) as to any LIBOR Loan, the last day of such Interest Period, and (iii) as to any Loan, the date of any repayment or prepayment made in respect.

“Interest Period” means as to any LIBOR Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such LIBOR Loan and ending one (1), two (2), three (3) or six (6) months thereafter, as selected by the Borrower in its Notice of Borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period (i) commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Loan and ending one (1), two (2), three (3) or six (6) months thereafter and (ii) commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Loan and ending three (3) or six (6) months thereafter, in the case of either (i) or (ii) as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 10:00 A.M., New York time, on the date that is three (3) Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

(i)           if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(ii)          if the Borrower selects an Interest Period with respect to Construction Loans that would extend beyond the applicable Construction Loan Maturity Date or the applicable LC Loan Maturity Date, such Interest Period will end on the Construction Loan Maturity Date or LC Loan Maturity Date, as applicable;

(iii)         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 end on the last Business Day of a calendar month; and

(iv)         except as described in item (ii) above, the Borrower shall select Interest Periods so as not to require a payment or prepayment of any LIBOR Loan during an Interest Period for such Loan.

“Investment” has the meaning given to such term in Section 6.3.

“Issuing Banks” means collectively, the Project LC Issuing Bank and each DSR Issuing Bank; provided that in respect of a Letter of Credit issued pursuant to the terms of this Agreement, the “Issuing Bank” shall be the Issuing Bank which has issued the Letter of Credit and the relevant provisions herein and the other Loan Documents shall be construed accordingly to refer to the applicable Issuing Bank, as appropriate.

“Investment Grade” means a credit rating of at least “Baa3” by Moody’s or “BBB-” by S&P or Fitch.

“Knowledge” means the actual knowledge of any Responsible Officer or any person listed on Schedule 1.1D.

“Large Project” means a Project that has an expected nameplate capacity in excess of 2.0 MW dc.

“LC Commitment” means, collectively, the Project LC Commitments and the DSR LC Commitments. The aggregate amount of the LC Commitments on the Signing Date is $8,900,000, which such amount is specifically allocated to each Project as set forth on Annex 2.

“LC Commitment Termination Date” means, for each Letter of Credit allocated to each Project, the applicable Construction Loan Maturity Date for such Project.

“LC Issuance Notice” means a written request by the Borrower to the Issuing Banks requesting the issuance of a Letter of Credit, substantially in the form of Exhibit G to this Agreement.

“LC Loan Maturity Date” means with respect to any LC Loan, the earliest of (a) the applicable LC Commitment Termination Date and (b) the date of acceleration of any Loans.

“LC Loans” means the DSR LC Loans and the Project LC Loans.

“LC Loan Note” has the meaning given to such term in Section 2.15(c).

“LC Notice” has the meaning given to such term in Section 2.16(r).

“LC Obligations” means, as at any date of determination, the aggregate maximum amount available to be drawn under all outstanding Letters of Credit (including, without limitation, any and all Letters of Credit for which documents have been presented that have not been honored or dishonored) plus the aggregate of all Unreimbursed Amounts, including all LC Loans.

“Lead Arranger” means Mizuho Bank, Ltd., in its capacity as lead arranger for the Lenders, or its successors or assigns appointed pursuant to the terms of this Agreement.

“Legal Requirements” means, as to any Person, the certificate of incorporation and by-laws, limited liability company agreement, partnership agreement or other organizational or governing documents of such Person, any law, treaty, rule or regulation, including any Governmental Rule, or determination of an arbitrator or a court or other Governmental Authority, or any requirement under a Permit, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Lenders” means the banks and other financial institutions or entities party to this Agreement from time to time, other than the Collateral Agent and specifically including the Issuing Banks.

“Lending Office” means the office designated as such beneath the name of a Lender set forth on Annex 1 of this Agreement or such other office of such Lender as such Lender may specify in writing from time to time to the Administrative Agent and the Borrower.

“Letters of Credit” means the DSR Letters of Credit and the Project Letters of Credit.

“Letter of Credit Application” has the meaning given to such term in Section 2.16(b).

“Letter of Credit Expiration Date” means the day that is seven (7) days prior to the LC Commitment Termination Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

“LIBOR Base Rate” means, with respect to each day during each Interest Period pertaining to a LIBOR Loan, the rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on such page (or otherwise on such screen), the “LIBOR Base Rate” shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered Dollar deposits at or about 10:00 A.M., New York time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein.

“LIBOR Loans” means Loans that bear interest at rates based upon the LIBOR Rate.

“LIBOR Rate” means, with respect to each day during each Interest Period pertaining to a LIBOR Loan, a rate per annum determined for such day in accordance with the following formula:

“LIBOR Rate Tranche” means the collective reference to LIBOR Loans under a particular Facility with respect to which all then current Interest Periods (i) begin on the same date and (ii) end on the same later date (whether or not such Loans shall originally have been made on the same day).

“LIBOR Reserve Requirements” means, for any day as applied to a LIBOR Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D) maintained by a member bank of the Federal Reserve System.

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing), whether or not filed, recorded or otherwise perfected or effective under applicable law.

“Loan Documents” means this Agreement, the Notes, the Letter of Credit Application(s), Security Documents, the Equity Contribution Documents, the Agent Fee Agreement and any other documents, agreements or instruments entered into in connection with any of the foregoing.

“Loan Parties” means, collectively, the Borrower, each Holdco, the Pledgor, the Equity Investor, each Project Company, and the ECCA Parent Guarantor.

“Loans” means the loans made by the Lenders and the Issuing Banks under this Agreement, including Construction Loans and LC Loans.

“Local Deposit Account” means a deposit account to be held by the Borrower with a financial institution reasonably satisfactory to the Administrative Agent and subject to a deposit account control agreement in favor of the Collateral Agent on terms reasonably satisfactory to the Administrative Agent and the Collateral Agent.

“Loss Proceeds” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

“Loss Proceeds Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

“Margin Stock” shall have the meaning assigned to such term in Regulation U.

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, property, operations, or condition (financial or otherwise) of any Borrower Party or any Project, (b) the validity, legality, binding effect or enforceability (i) against any Loan Party of this Agreement or any of the other Loan Documents to which it is a party or (ii) of the rights or remedies of the Agents or the Lenders under this Agreement or any of the other Loan Documents, (c) the validity, perfection or enforceability of the Liens granted under the Loan Documents; (d) the ability of any Loan Party to perform its obligations under any Loan Documents to which it is a party, or (d) the financial condition of SunPower Corporation that could be reasonably expected to impact the ability of SunPower Corporation in its ability to perform its obligations under any Operative Documents to which it is a party.

“Material Project Documents” means the agreements listed on Schedule 1.1B and any Additional Project Agreements, as of the applicable time of determination, then in force and effect; provided, however, that any such agreement shall cease to be a Material Project Document when all obligations (other than any contingent obligations that survive expiration or termination of the agreement) under such agreement have been indefeasibly performed and/or paid in full or have expired and all warranty periods if applicable have expired.

“Material Project Participants” means the counterparties to the agreements listed on Schedule 1.1B, the counterparties to the Module Warranty Providers, the counterparties to the Equity Contribution Agreements, and the counterparties to the Additional Project Agreements; provided, however, that any such Person shall cease to be a Material Project Participant when all obligations (other than any contingent obligations that survive expiration or termination of the agreement) of such Person under all Operative Documents to which it is a party have been indefeasibly performed and/or paid in full or have expired and all warranty periods if applicable have expired.

“Mechanics’ Lien Endorsement” has the meaning given to such term in Section 3.2(o).

“Modules” shall have the meaning given in Schedule 1.1B of the Financing Agreement.

“Module Suppliers” and “Module Supplier” shall have the respective meanings given in Schedule 1.1B of this Agreement.

“Module Supply Agreement” and “Module Supply Agreements” shall have the respective meanings given in Schedule 1.1B of this Agreement.

“Module Warranty Provider” and “Module Warranty Providers” shall have the respective meanings given in Schedule 1.1B of this Agreement.

“Moody’s” means Moody’s Investors Service, Inc.

“Mortgaged Property” means the Real Property listed on Schedule 4.19(a), (for each Project other than a Small Project) constituting the Project Site for each such applicable Project, from and after the time that a Lien has been granted to the Collateral Agent for the benefit of the Lenders pursuant to a Deed of Trust, and any other property that becomes subject to the Liens of such Deed of Trust pursuant to Section 5.21 or is otherwise owned by the applicable Project Company (which shall be deemed Mortgaged Property when it so becomes subject thereto).

“MSAs” and “MSA” have the respective meanings set forth in Schedule 1.1B of this Agreement.

“Multiemployer Plan” means a multiemployer plan (as defined in Section 4001(a)(3) of ERISA).

“NERC” means the North American Electric Reliability Corporation, or successor entity.

“Non-Excluded Taxes” has the meaning given to such term in Section 2.20(a).

“Nonrecourse Parties” has the meaning given to such term in Section 9.24.

“Non-U.S. Lender” has the meaning given to such term in Section 2.20(e).

“Notes” means the Construction Loan Notes and the LC Loan Notes, substantially in the form of Exhibit C-1 and Exhibit C-2, as applicable.

“Notice of Conversion or Continuation” has the meaning given to such term in Section 2.11.

“O&M Agreements” and “O&M Agreement” shall have the respective meanings given in Schedule 1.1B of this Agreement.

“Obligations” means the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Agents, the Issuing Banks (including, without limitation, the LC Obligations and any Letters of Credit for which documents have been presented that have not been honored or dishonored) or to any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, Breakage Costs, Reimbursement Obligations, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise (whether or not evidenced by any note or instrument and whether or not for the payment of money).

“OFAC” means the U.S. Department of Treasury Office of Foreign Assets Control.

“OFAC SDN List” means the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC.

“Operating Agreements” means the limited liability agreements of each of Borrower and each Holdco, as set forth on Schedule 1.1B of this Agreement.

“Operating Costs” means, for any period and for each Project, the sum, computed without duplication among any of the following categories or from period to period, of the following actual cash operating and maintenance costs in respect of each Project: (a) general and administrative expenses and ordinary course fees, royalties and costs, including those paid to the counterparties to the Site Lease Agreements pursuant to the Site Lease Agreements for such Project, plus (b) expenses for operating such Project and maintaining such Project in good repair and operating condition in accordance with Prudent Industry Practices paid during such period, including payments to the counterparties to the Material Project Documents as required pursuant to the Material Project Documents in respect of such Project (including (w) capital expenditures incurred in connection with normal maintenance of such Project, (x) capital expenditures required by applicable Legal Requirements or any Applicable Permit and (y) Permitted Capex, plus (c) management and other fees payable under the O&M Agreements and the Asset Management Agreement for such Project, plus (d) insurance costs paid in respect of insurance maintained or required to be maintained in respect of such Project during such period, plus (e) applicable sales and excise taxes (if any) paid or reimbursable by such Borrower Party during such period, plus (f) franchise taxes paid by such Borrower Party during such period, plus (g) property taxes paid by such Borrower Party during such period, plus (h) any other direct taxes (if any) paid by such Borrower Party during such period, plus (i) costs and fees attendant to the obtaining and maintaining in effect the Permits for such Project paid during such period, plus (j) legal, accounting and other professional fees attendant to any of the foregoing items paid during such period in respect of such Project, plus (k) expenses incurred as necessary to prevent or mitigate an emergency situation in respect of such Project. Operating Costs shall exclude, to the extent included above: (i) payments into any of the Collateral Accounts during such period, (ii) payments of any kind with respect to Restricted Payments during such period, (iii) depreciation and other non-cash charges for such period, (iv) payments of any kind with respect to Debt Service, (v) any payments of any kind with respect to any restoration of such Project during such period and (vi) capital expenditures for such Project (other than Permitted Capex).

“Operative Documents” means the Loan Documents and the Material Project Documents.

“Operators” and “Operator” have the respective meanings given in Schedule 1.1B of this Agreement.

“Other Fee Agreements” has the meaning given to such term in Section 3.1(f).

“Other Taxes” means any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document.

“P50 Production” means the production volume based on the P50 one (1) year confidence levels for the applicable Project determined by the Independent Engineer pursuant to the report delivered for such Project under Section 3.2(q).

“P99 Production” means the production volume based on the P99 one (1) year confidence levels for the applicable Project determined by the Independent Engineer pursuant to the report delivered for such Project under Section 3.2(q).

“Participant” has the meaning given to such term in Section 9.7(c).

“Participant Register” has the meaning given to such term in Section 9.7(c).

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), Pub. L. 107-56 and all other United States laws and regulations relating to money-laundering and terrorist activities.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Pension Plan” means any ERISA Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such ERISA Plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Performance Guaranty Agreements” and “Performance Guaranty Agreement” shall have the respective meanings listed in Schedule 1.1B of this Agreement.

“Performance Liquidated Damages” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

“Permit” means any and all franchises, licenses, leases, permits, approvals, notifications, certifications, registrations, authorizations, exemptions, and other rights, privileges and approvals required to be obtained from or provided to a Governmental Authority under any Governmental Rule.

“Permitted Affiliate Subordinated Indebtedness” means Indebtedness of the Borrower to the Equity Investor or any Affiliate of the Equity Investor that (a) is unsecured, (b) is fully and completely subordinated (and collaterally assigned) for the benefit of, and to, the Lenders pursuant to a subordination and security agreement, which shall, in each case, be in form and substance satisfactory to the Required Lenders, (c) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal or mandatory redemption obligations prior to, the date that is August 4, 2021 and (d) provides for payments of interest solely in-kind (and not in cash) until the date that is August 4, 2021.

“Permitted Capex” means capital expenditures which the applicable Borrower Party is required to make pursuant to the terms of the Operative Documents.

“Permitted Indebtedness” means:

(a)          Indebtedness under or in respect of the Loan Documents;

(b)          obligations incurred under the Material Project Documents;

(c)          trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business operation so long as such trade accounts are not more than ninety (90) days past due;

(d)          purchase money or Capital Lease Obligations to the extent incurred in the ordinary course of business to finance items of equipment not comprising an integral part of such Project; provided that (A) if such obligations are secured, they are secured only by Liens upon the equipment being financed and (B) the aggregate principal amount and the capitalized portion of such obligations do not at any time exceed $2,000,000;

(e)          the Deferred Development Fee;

(f)           Permitted Affiliate Subordinated Indebtedness not to exceed $5,000,000 in the aggregate; and

(g)          other unsecured Indebtedness not to exceed in the aggregate $250,000.

“Permitted Investments” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six (6) months or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000 and rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s; (c) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government; (d) securities with maturities of one (1) year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth, or territory, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s; (e) securities with maturities of six (6) months or less from the date acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition; (f) money market, mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (e) of this definition; or (g) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

“Permitted Liens” means:

(a)          the Liens created pursuant to the Security Documents;

(b)          Liens imposed by any Governmental Authority for any tax, assessment or other charge to the extent not yet past due or being contested in good faith and by appropriate proceedings, so long as (a) reserves consistent with GAAP have been established on the applicable Person’s books in an amount sufficient to pay any such taxes, assessments or other charges, accrued interest thereon and potential penalties or other costs relating thereto, or other provision for the payment thereof reasonably satisfactory to the Administrative Agent shall have been made bonded, (b) enforcement of the contested tax, assessment or other charge is effectively stayed for the entire duration of such contest and (c) any tax, assessment or other charge determined to be due, together with any interest or penalties thereon, is immediately paid after resolution of such contest;

(c)          materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like Liens arising in the ordinary course of business or in the restoration, repair or replacement of any Project in accordance with this Agreement or, prior to Final Completion, in connection with the construction of such Project, in each case for amounts not yet due or which are being contested in good faith by appropriate proceedings and which have been bonded in an amount sufficient to repay the underlying obligations and cover any penalties and enforcement costs with respect thereto or in respect of which adequate cash reserves are in place in form and substance reasonably acceptable to the Administrative Agent;

(d)          Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP, bonds or other security acceptable to the Administrative Agent in its reasonable discretion have been provided or are fully covered by insurance;

(e)          Liens, deposits or pledges to secure (i) performance of bids, tenders, any Borrower Party’s obligations under the Material Project Documents (other than for the repayment of borrowed money) or leases, or for purposes of like general nature in the ordinary course of its business, not to exceed $500,000 in the aggregate at any time, and with any such Lien to be released within 270 days of its attachment or (ii) mandatory statutory obligations;

(f)           Liens incurred in connection with Indebtedness permitted under clause (d) of the definition of “Permitted Indebtedness”; provided that no such Lien shall extend to cover any property other than the property or equipment being financed;

(g)          the exceptions to title listed on Schedule B of any applicable Title Policy;

(h)          encumbrances created in connection with any Safe Harbor Agreement (but only if such encumbrance was created in the course of incidental take authorizations pursuant to the Federal Endangered Species Act, such as onsite conservation easements);

(i)           easements, rights of way restrictions, title imperfections, encroachments, minor defects or irregularities in title and similar matters, in each case, that, in the aggregate, are not substantial in amount and do not or would not reasonably be expected to materially detract from the value of such Project or materially impair the construction or use of such Project;

(j)           liens not incurred in connection with the incurrence of Indebtedness, in an amount not in excess of $250,000;

(k)          zoning and other land use and environmental Governmental Rules of any municipality or Governmental Authority that do not secure any monetary obligations and which do not materially interfere with the use of any asset in the conduct of the business of any Borrower Party or the construction, development, operation or maintenance of such Project or materially detract from the value of such Project; and

(l)           Liens expressly permitted or expressly contemplated by the Loan Documents.

“Person” means any natural person, corporation, limited liability company, partnership, firm, association, Governmental Authority or any other entity whether acting in an individual, fiduciary or other capacity.

“Plans and Specifications” means the plans and specifications for the construction and design of each Project, including any document describing the scope of work performed by any contractor under the applicable EPC Agreement and/or any other material contract or subcontract for the construction of such Project and any feeder lines and interconnections, all work drawings, engineering and construction schedules, Project schedules, Project monitoring systems, specifications status lists, material and procurement ledgers, drawings and drawing lists, manpower allocation documents, management and Project procedures documents, Project design criteria, and any other document referred to in the relevant Material Project Documents or any of the documents referred to in this definition, as the same may be amended to the extent permitted by this Agreement, in respect of such Project.

“Pledge Agreement” means the Pledge Agreement, dated as of the Initial Project Construction Loan Date for the initial Project, executed and delivered by Pledgor, substantially in the form of Exhibit J to this Agreement, in form acceptable to the Lenders, the Borrower and the Administrative Agent.

“Pledged Stock” has the meaning given to such term in the Pledge Agreement.

“Pledgor” means SunPower Revolver Holdco I Parent, LLC, a Delaware limited liability company.

“Power Purchasers” and “Power Purchaser” shall have the respective meanings given in Schedule 1.1B to this Agreement.

“Power Blocks” shall have the respective meanings given in Schedule 1.1B to this Agreement.

“Power Purchase Agreement” and “Power Purchase Agreement” shall have the respective meanings given in Schedule 1.1B of this Agreement.

“Prepayment Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

“Prime Rate” means the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York, New York (the Prime Rate not being intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors).

“Prohibited Transaction” has the meaning given to such term in Section 406 of ERISA and Section 4975(f)(3) of the Code.

“Project” means each “Project” listed on Schedule 1.1B, including, with respect to such Project, all buildings, structures or improvements erected on the Project Site, all alterations thereto or replacements thereof, all fixtures, attachments, appliances, equipment, machinery and other articles attached thereto or used in connection therewith and all parts that may from time to time be incorporated or installed in or attached thereto, all contracts related thereto, all leases of real or personal property related thereto, all other real and tangible and intangible personal property owned by the Borrower and placed upon the Project Site (or used in connection with the Power Blocks located thereon), the Project Site, the Permits required in connection with (or otherwise related to) such Project, any electrical interconnections and, to the extent not included in the foregoing, all Collateral; provided, however, that any such Project shall cease to be a Project hereunder on its respective Project Discharge Date.

“Project Companies” and “Project Company” shall have the respective meanings given in Schedule 1.1B to this Agreement; provided, however, that any such Project Company shall cease to be a Project Company hereunder on its respective Project Discharge Date.

“Project Company Operating Agreements” and “Project Company Operating Agreement” shall have the respective meanings given in Schedule 1.1B to this Agreement.

“Project Costs” means, in respect of each Project (a) the cost of developing, designing, engineering, equipping, procuring, constructing, starting up, commissioning, acquiring and testing each applicable Project, including the cost of all labor, services, materials, supplies, equipment, tools, transportation, supervision, storage, training, balance of plant contingency, demolition, site preparation, civil works, and remediation in connection therewith, (b) the cost to the applicable Borrower Party of constructing the switching station and feeder lines and substation interconnecting each applicable Project to the applicable transmission system and interconnecting and synchronizing each applicable Project to such system, (c) the cost of acquiring and using any lease, easement and any other necessary interest in each applicable Project Site, (d) real and personal property taxes, ad valorem taxes, sales, use and excise taxes and insurance (including title insurance) premiums payable with respect to each applicable Project during the period prior to COD of such Project (the “Construction Period”), (e) interest payable on any Loans and financing-related fees and costs during the applicable Construction Period (including any and all fees, interest and other amounts payable by the Borrower under this Agreement), (f) the costs of acquiring Permits for each applicable Project during the applicable Construction Period, (g) the cost of establishing a spare parts inventory for each applicable Project (if any), (i) the costs of funding the applicable Construction Account and the DSR Requirement for the purpose of making the payments, applications and distributions further specified under the Depositary Agreement prior to the applicable Construction Loan Maturity Date, (h) other fees (but only fees payable to third parties) and expenses relating to the

construction, acquisition and closing of financing of each applicable Project, including financial, legal and consulting fees, costs and expenses in accordance with the applicable Construction Budget and Schedule, including the permitted variances thereto, (i) initial working capital, and (j) applicable Reimbursable Development Costs; provided, however, that Project Costs shall not include the Deferred Development Fee or the applicable Project and the Initial Project Construction Loan Date Equity Contribution; provided, however, that the total aggregate amount of such Project Costs for each Project shall not exceed the amount set forth on Annex 3 as set forth in respect of the Project Costs for each applicable Project in the applicable Construction Budget and Schedule, including the permitted variances thereto, unless such excess is funded with additional equity contributions from one or more Affiliates of the Borrower (excluding any Borrower Party).

“Project Discharge Date” has the meaning given such term in Section 2.9(f).

“Project LC Issuing Bank” means Mizuho Bank, Ltd., in its capacity as issuing bank of a Project Letter of Credit and any other Lenders which agree to issue Letters of Credit hereunder.

“Project LC Commitment” means the commitment of the Project LC Issuing Bank to issue and continue to make available Project Letters of Credit for each Project and make Project LC Loans to the Borrower in respect of each such Project Letter of Credit, in an aggregate stated or principal amount at any one time not to exceed the amount, expressed as a Dollar amount, set forth under the heading “Project LC Commitment” opposite the Project LC Issuing Bank’s name on Schedule 1.1A, as such amount may be reduced from time to time pursuant to Section 2.10 (and, in respect of each Project, as such amount has been allocated to each Project pursuant to Annex 2). The aggregate amount of the Project LC Commitments of the Project LC Issuing Bank on the Signing Date shall be $4,900,000.

“Project LC Facility” has the meaning given to such term in the definition of Facilities.

“Project LC Loan” means any loan made to the Borrower by the Project LC Issuing Bank as a result of a Drawing on a Project Letter of Credit issued by the Project LC Issuing Bank as set forth in Section 2.16(e).

“Project Letter of Credit” means each irrevocable standby letter of credit to be issued pursuant to Section 2.16, for the account of the Borrower by the Project LC Issuing Bank for the benefit of a Material Project Participant, acceptable to the Lenders, in respect of a Borrower Party’s obligations under the Material Project Document that such Material Project Participant is a party to, in form and substance acceptable to the Administrative Agent and the Lenders and in a maximum stated amount not to exceed the (i) Project LC Commitment of such Project LC Issuing Bank and (ii) the Project LC Commitment allocated to such Project (as set forth on Annex 2).

“Project Revenues” means all income and cash revenues received by any Borrower Party from the ownership or operation of each applicable Project, including (a) any payments due to any Borrower Party under any Power Purchase Agreement and all other income derived from the sale or use of electric energy, capacity and ancillary services generated by each applicable

Project, (b) all interest earned on Permitted Investments held in the Collateral Accounts, (c) payments due to any Borrower Party (or refunds received by any Borrower Party ) under any Material Project Document (including any proceeds from renewable resource credit sales, liquidated damages (excluding Delay Liquidated Damages and Performance Liquidated Damages) and warranty payments due to any Borrower Party under any Material Project Document and any reimbursement of costs provided for under the Interconnection Agreements), (d) Loss Proceeds of any business interruption, delay in startup or other similar insurance maintained by or on behalf of any Borrower Party and (e) all other operating income, however earned or received, by any Borrower Party during such period, provided that Project Revenues shall not include (i) any equity contributions made to the Borrower, whether contributed to the Borrower by Pledgor or an Affiliate thereof or any other Person, (ii) the proceeds of the Loans and (iii) Loss Proceeds (other than proceeds of any business interruption, delay in startup or other similar insurance as set forth above).

“Project Site” means the Real Property on which each applicable Project will be located, which includes, among other things, the real property estates created by the Site Lease Agreements with respect to such Project and all easements and licenses benefitting the Project located thereon.

“Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

“Proportionate Share” means, with respect to any Facility, and with respect to any Lender under such Facility, the proportion that such Lender’s Commitment with respect to such Facility then constitutes of the total Commitments with respect to such Facility (or, at any time after the Commitments with respect to such Facility shall have expired or terminated, the proportion which the aggregate principal amount of such Lender’s outstanding Loans with respect to such Facility constitutes of the aggregate outstanding principal amount of the Loans with respect to such Facility).

“Prudent Industry Practices” means, with respect to any Person, those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by solar power generation facilities in the United States of America of a type and size similar to the Projects, as good, safe and prudent practices in connection with operation, maintenance, repair, improvement and use of electrical and other equipment, facilities and improvements of such solar power generation facilities, with commensurate standards of safety, performance, dependability, efficiency and economy. Prudent Industry Practices does not necessarily mean one particular practice, method, equipment specification or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.

“PUHCA 2005” means the Public Utility Holding Company Act of 2005, and FERC’s implementing regulations.

“Purchasers” and “Purchaser” have the respective meanings given in Schedule 1.1B of this Agreement.

“Purchaser Guarantors” and “Purchaser Guarantor” have the respective meanings given in Schedule 1.1B of this Agreement.

“PURPA” means the Public Utility Regulatory Policies Act of 1978, and FERC’s regulations promulgated thereunder.

“QF” means a qualifying small power production facility pursuant to PURPA and FERC’s regulations at 18 C.F.R. Section 292.203(a).

“Real Property” means all right, title and interest of each Borrower Party in and to any and all parcels of real property owned, leased or operated by such Borrower Party together with all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental to the ownership, lease or operation thereof, including the real property estates created by the Site Lease Agreements.

“REC Agreements” and “REC Agreements” have the respective meanings given in Schedule 1.1B to this Agreement.

“Reduced Commitment” has the meaning given to such term in Section 2.25(b).

“Register” has the meaning given to such term in Section 9.7(b)(iv).

“Regulation D, H, T, U or X” means Regulation D, H, T, U or X of the Board as in effect from time to time.

“Reimbursable Development Costs” means the positive difference if any between any development costs incurred by the Borrower or any Affiliate of the Borrower prior to the Initial Project Construction Loan Date and the Initial Project Construction Loan Date Equity Contribution, for each applicable Project in an amount to be evidenced by the Borrower (to the Administrative Agent’s reasonable satisfaction) and certified by the Independent Engineer.

“Release” means any placing, spilling, leaking, seepage, migration, intrusion, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or depositing into or onto the Environment.

“Reorganization” means with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty (30) day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043, with respect to a Pension Plan.

“Required Lenders” means at any time the holders of more than 50% of the sum of (i) the aggregate unpaid principal amount of the Construction Loans and LC Loans then outstanding and (ii) the aggregate unused amount of the Commitments then in effect.

“Responsible Officer” means a manager, the president, a vice president or the secretary of the Borrower, but in any event, with respect to financial matters, a manager of the Borrower.

“Restricted Payment” has the meaning given to such term in Section 6.7.

“Revenue Account” has the meaning given to such term in Section 1.1 of the Depositary Agreement.

“Secured Parties” means the Agents, the Lenders, the Issuing Banks and the Depositary Bank.

“Security Agreement” means the Security and Pledge Agreement, dated as of the Initial Project Construction Loan Date for the initial Project, by and between Borrower and the Collateral Agent (for the benefit of the Secured Parties), substantially in the form of Exhibit K to this Agreement, in form and substance acceptable to the Lenders, the Borrower and the Administrative Agent.

“Security Documents” means each Deed of Trust, the Security Agreement, the Pledge Agreement, the Depositary Agreement, each Guaranty, Pledge and Security Agreement, each Guaranty and Security Agreement, the Consents, any agreement entered into with a Tax Equity Investor pursuant to Exhibit F and any other security documents, financing statements and the other instruments filed or recorded in connection with the foregoing, each in form and substance acceptable to the Lenders, the Borrower and the Administrative Agent.

“Shared Facilities Agreements” and “Shared Facilities Agreement” have the respective meanings given in Schedule 1.1B of this Agreement.

“Shared Facilities Agreement Counterparties” and “Shared Facilities Agreement Counterparty” shall have the respective meanings given in Schedule 1.1B of this Agreement .  

“Signing Date” means the date when each of the conditions set forth in Section 3.1 has been satisfied (or waived in writing by the Administrative Agent and the Lenders).

“Site Lease Agreements” have the respective meanings given to them in Schedule 1.1B of this Agreement.

“Small Project” means a Project (or all Projects), in each such case, owned by a Project Company that has an expected nameplate capacity to be 2.0 MW dc or less (in the aggregate).

“Solar Resource Consultant” means Leidos, or any successor appointed pursuant to Section 9.9.

“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they

mature. For purposes of this definition, (i) “debt” means liability on a “claim,” and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

“S&P” means Standard and Poor’s Rating Services.

“Subject Persons” has the meaning given to such term in Section 7.5.

“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.

“Substantial Completion” has the meaning given to such term on Schedule 1.1B.

“Substantial Completion Date” means the date when Substantial Completion occurs.

“SunPower Corporation” means SunPower Corporation, a Delaware corporation.

“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower shall be a “Swap Agreement”.

“Tax Equity Document” and “Tax Equity Documents,” have the respective meanings in Schedule 1.1B of this Agreement.

“Tax Equity Investor” and “Tax Equity Investors,” have the respective meanings in Schedule 1.1B of this Agreement.

“Taxes” has the meaning given to such term in Section 2.20(a).

“Title Company” has the meaning given to such term in Schedule 1.1(b).

“Title Policy” means each policy of extended coverage ALTA mortgagee’s title insurance (2006 form) issued by the Title Company dated as of the Initial Project Construction Loan Date for the applicable Project (excluding Small Projects and rooftop Projects) in an amount at least equal to the Commitments allocated to such Project (as set forth on Annex 2),

including all amendments thereto, endorsements thereof and substitutions or replacements therefor.

“Transferee” means any Assignee or Participant.

“Transformer Agreements” and “Transformer Agreement” have the respective meanings given on Schedule 1.1B of this Agreement.

“Transformer Suppliers” and “Transformer Supplier” have the meanings given to them in Schedule 1.1B of this Agreement.

“Transmission Consultant” means Leidos, or any successor appointed pursuant to Section 9.9.

“Transmission Utility” has the meanings given on Schedule 1.1B of this Agreement.

“Type” means LIBOR Loans or Base Rate Loans, as applicable, each of which constitutes a Type of Loan.

“UCC” means the Uniform Commercial Code as in effect in the applicable state of jurisdiction.

“Unreimbursed Amount” has the meaning given to such term in Section 2.16(e)(ii).

“U.S. Lender” has the meaning given to such term in Section 2.20(e).

“Warranty Agreements” and “Warranty Agreement” shall have the respective meanings given in Schedule 1.1B to this Agreement.

“Withdrawal Liability” means any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

1.2          Rules of Interpretation. Except as otherwise expressly provided, the following rules of interpretation shall apply to this Agreement and the other Loan Documents:

(a)          The singular includes the plural and the plural includes the singular.

(b)          The word “or” is not exclusive. Thus, if a party “may do (a) or (b)”, then the party may do either or both. The party is not limited to a mutually exclusive choice between the two alternatives.

(c)          A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule, and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule.

(d)          A reference to a Person includes its successors and permitted assigns.

(e)          Accounting terms have the meanings given to them by GAAP, as applied by the accounting entity to which they refer. For purposes of determining compliance with any financial covenants contained in this Agreement, any election by the Borrower to measure an item of Indebtedness using fair value (as permitted by Statement of Financial Accounting Standards No. 159 or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.

(f)           The words “include,” “includes” and “including” are not limiting.

(g)          A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document.

(h)          References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) means such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in effect at any given time.

(i)           The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

(j)           References to “days” means calendar days, unless the term “Business Days” shall be used. References to a time of day means such time in Los Angeles, California, unless otherwise specified. If the Borrower or any Affiliate of the Borrower is required to perform an action, deliver a document or take such other action by a calendar day and such day is not a Business Day, then the Borrower or such Affiliate shall take such action by the next succeeding “Business Day.”

(k)          The Loan Documents are the result of negotiations between, and have been reviewed by the Borrower, the Agents, the Issuing Bank, the Depositary Bank and each Lender and their respective counsel. Accordingly, the Loan Documents shall be deemed to be the product of all parties thereto, and no ambiguity shall be construed in favor of or against Borrower, the Agents, the Depositary Bank or any Lender.

ARTICLE 2.

THE CREDIT FACILITIES

2.1          Construction Loan Commitments. Subject to the terms and conditions hereof, each Lender severally agrees to make loans to the Borrower (such loans individually, a “Construction Loan” and collectively, the “Construction Loans”) from time to time during the Construction Loan Availability Period for each applicable Project, but not more often than once in a calendar month and no later than the 20^th of any calendar month (except for Borrowings of Construction Loans made solely with respect to the payment of the interest under Section 2.13 and the fees under Section 2.6 and except for the first two (2) disbursements, which may be made within the same calendar month), in an aggregate principal amount that will not result in such (i) Lender’s Construction Loans exceeding such Lender’s Construction Loan Commitment and (ii) Lender’s Construction Loans for such Project exceeding the Lender’s Construction Loan Commitment allocated to such Project as set forth on Annex 2; provided, however, that the Construction Loan Commitment allocated to such Project as set forth on Annex 2 shall be determined prior to the initial Borrowing of any Construction Loans for such Project based on the debt sizing parameters set forth on Annex 5; provided, further, however, Annex 2 may be updated after the initial Borrowing of any Construction Loan for such Project in accordance with Section 2.25. Each Lender’s remaining Construction Loan Commitment allocated to such Project shall be reduced to zero on the earlier of, with respect to such Project, (i) the last Business Day of the applicable Construction Loan Availability Period and (ii) the applicable Construction Loan Maturity Date (for the avoidance of doubt, the amount of the Lenders’ remaining Construction Loan Commitment shall not be cancelled and shall be available for re-borrowing under this Section 2.1 for a new Project), all on and subject to the terms and conditions of this Agreement. Notwithstanding anything to the contrary set forth in the prior sentence, for the avoidance of doubt, each Lender’s remaining Construction Loan Commitment hereunder for all Projects shall be reduced to zero on the last Business Day of the Construction Loan Availability Period for the last Project. Within such limits, Borrower may from time to time borrow under this Section 2.1 in respect of a Project, prepay the Loans allocated to such Project in whole or in part pursuant to Section 2.7 or Section 2.8, and re-borrow under this Section 2.1 for a new Project, all on and subject to the terms and conditions of this Agreement. The Construction Loans may from time to time be LIBOR Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.11.

2.2          Procedures for Construction Loan Borrowing and Repayment of Construction Loans.

(a)          Procedures for Construction Loan Borrowing. The Borrower may borrow under the Construction Loan Commitments allocated to Projects during the applicable Construction Loan Availability Period for such Project on any Business Day (subject to the limitations in Section 2.1) provided that the Borrower shall give the Administrative Agent an irrevocable appropriately completed written notice in the form of Exhibit A-1 (a “Construction Loan Notice of Borrowing”), as applicable, which notice must be received by the Administrative Agent prior to 10:00 A.M., New York time, five (5) Business Days prior to the requested Borrowing date, specifying, among other things: (a) the amount of the requested Borrowing, which shall be in the minimum amount of $1,000,000 (except for the amount made on the Borrower’s final requested

Borrowing for such Project) and in whole multiples of $500,000 in excess thereof; (b) the date of the requested Borrowing, which shall be a Business Day, and whether such Borrowing shall consist of Base Rate Loans and/or LIBOR Loans; (c) in the case of LIBOR Loans, the initial Interest Period(s) selected by the Borrower and (d) the Project to which such Borrowing relates. The Construction Loans for a Project made on the Initial Project Construction Loan Date for such Project shall be Base Rate Loans. If the Borrower elects a LIBOR Loan and changes the date of a Borrowing by 10:00 A.M. New York time within three (3) Business Days of the date of such Borrowing, the Borrower shall reimburse the Lenders for Breakage Costs, if any, incurred as a result thereof in accordance with Section 2.21. The Administrative Agent shall promptly, and in any event within two (2) Business Days prior to the requested Borrowing date in the case of LIBOR Loans, notify each Lender of the contents of such notice.

(b)          Repayment of Construction Loans. With respect to any Project, the Borrower shall repay to the Lenders on the applicable Construction Loan Maturity Date all outstanding Construction Loans due and payable on such date for such Project. Notwithstanding the above and for the avoidance of doubt, the Borrower shall repay to the Lenders on the Final Maturity Date all outstanding Construction Loans due and payable on such date.

2.3          LC Loans. Subject to the terms and conditions hereof, (a) each DSR Issuing Bank agrees to make DSR LC Loans to the Borrower in respect of each DSR Letter of Credit issued by it in an aggregate principal amount at any one time outstanding which does not exceed an amount equal to the DSR LC Commitment of such DSR LC Issuing Bank (less the Available Amount with respect to, and any unreimbursed Drawings under, such DSR Letters of Credit issued by such DSR LC Issuing Bank), and (b) each Project LC Issuing Bank agrees to make Project LC Loans to the Borrower in respect of the Project Letters of Credit issued by it in an aggregate principal amount at any one time outstanding which does not exceed an amount equal to the Project LC Commitment of such Project LC Issuing Bank (less the Available Amount with respect to, and any unreimbursed Drawings under, such Project Letters of Credit issued by such Project LC Issuing Bank), in each case deemed made in accordance with Section 2.16(e). Each Issuing Bank’s LC Commitments for an applicable Project, shall be reduced to zero on the LC Commitment Termination Date for such Project (for the avoidance of doubt, the amount of each Issuing Bank’s LC Commitment shall not be cancelled and shall be available for re-issuance under this Section 2.3 for a new Project). Notwithstanding the above and for the avoidance of doubt, each Issuing Bank’s LC Commitments allocated to all Projects, shall be reduced to zero on the Final Maturity Date.

2.4          Repayment of LC Loans. With respect to any Project, the Borrower shall repay to the Issuing Banks on the applicable LC Loan Maturity Date all outstanding LC Loans due and payable on such date for such Project. Notwithstanding the above and for the avoidance of doubt, the Borrower shall repay to the Issuing Banks on the Final Maturity Date all outstanding LC Loans due and payable on such date.

2.5          [Intentionally Omitted].

2.6          Fees.

(a)          Agent Fees.

(i)          On the Signing Date, the Borrower shall pay to the Administrative Agent (for the benefit of the applicable parties to each Agent Fee Agreement and each Other Fee Agreement) the up-front, arranging, participation and structuring fees, in each such case, in the amount set forth in each Agent Fee Agreement and each Other Fee Agreement.

(ii)         The Borrower shall pay to the Administrative Agent, Depositary Bank and the Collateral Agent on the Signing Date and on each other date specified in the Agent Fee Agreement entered into by and between the Administrative Agent, Collateral Agent, the Depositary Bank and the Borrower, solely for the account of Administrative Agent, Depositary Bank and the Collateral Agent, as applicable, the fees payable at the times and in the amounts set forth in such Agent Fee Agreement.

(b)          Loan Commitment Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender a commitment fee for the period from and including the date hereof until the date on which all Construction Loan Commitments are earlier cancelled or expire pursuant to this Agreement, computed at the Commitment Fee Rate on the unused amount of the Construction Loan Commitment of such Lender for each day during the period for which payment is made, payable in arrears on each Fee Payment Date prior to the Final Discharge Date and on the Final Maturity Date (or, if the Construction Loan Commitments are irrevocably cancelled or expire prior to such date, on the date of such irrevocable cancellation or expiration); provided, however, such commitment fees shall cease to accrue with respect to the Construction Loan Commitment of any Lender for any period during which such Lender is a Defaulting Lender and the Borrower shall not be required to pay any such fees that otherwise would have been required to have been paid to such Lender.

(c)          Letter of Credit Commitment Fees. The Borrower shall pay to the Administrative Agent, for the account of each Issuing Bank, a letter of credit commitment fee for the period from and including the date hereof until the date on which all LC Commitments are earlier cancelled or expire pursuant to this Agreement, computed at the Commitment Fee Rate on the unused amount of the LC Commitment of such Issuing Bank during the period for which payment is made, payable in arrears on each Fee Payment Date during such period and on the Final Maturity Date (or, if the LC Commitment of the Issuing Banks are irrevocably cancelled or expires prior to such date, on the date of such irrevocable cancellation or expiration); provided, however, such commitment fees shall cease to accrue with respect to the LC Commitment of any Defaulting Lender for any period during which such Issuing Bank is a Defaulting Lender and the Borrower shall not be required to pay any such fees that otherwise would have been required to have been paid to such Issuing Bank.

(d)          Other Letter of Credit Fees. The Borrower shall pay in arrears to the Administrative Agent, for the account of each Issuing Bank, on each Fee Payment Date occurring during the period from and including the date of issuance of each Letter of Credit issued by an Issuing Bank to the Final Discharge Date, a letter of credit fee on the daily aggregate Available Amount with respect to such Letter of Credit outstanding during the period for which payment is made at a rate per annum equal to the Applicable Margin in effect for LIBOR Loans effective for each day in such period.

2.7          Optional Prepayments. Subject to Section 2.9, the Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty (except for any Breakage Costs), upon irrevocable notice delivered to the Administrative Agent no later than 10:00 A.M., New York time, three (3) Business Days prior thereto, in the case of LIBOR Loans, and no later than 10:00 A.M., New York time, one (1) Business Day prior thereto, in the case of Base Rate Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of LIBOR Loans or Base Rate Loans due in connection with such optional prepayment, if applicable (calculated as if the date of such notice were the date of the optional prepayment) setting forth the details of such computation. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid. Partial prepayments of Loans shall be in an aggregate principal amount of $500,000 or a whole multiple thereof.

2.8          Mandatory Prepayments. The Borrower shall make the following mandatory prepayments, without premium or penalty (except for any Breakage Costs):

(a)          Upon receipt by any Borrower Party of any Loss Proceeds (unless such Loss Proceeds are applied to, or will be applied to, restoration, replacement or repair of the affected Project in accordance with Section 5.28), in an amount equal to such Loss Proceeds but not to exceed an amount necessary to repay the outstanding principal balance of the Loans (and related Obligations) made with respect to the applicable Project when applied pursuant to Section 2.9 (and any such excess proceeds shall be deposited into the applicable Construction Account for such Project or, if the Distribution Conditions have been satisfied with respect to such Project, shall be distributed pursuant to the instructions of the Borrower given in accordance with the Depositary Agreement);

(b)          Other than pursuant to a permitted sale or tax equity financing of a Project, the proceeds of which shall be applied in accordance with Section 2.8(c) and the Depositary Agreement, and the proceeds of any disposition permitted under clauses (i) through (v) of Section 6.4 (which such proceeds shall be deposited in to the applicable Construction Account), upon receipt by any Borrower Party or any of their Affiliates of any net proceeds from the sale or other disposition of Collateral;

(c)          Any net proceeds of any payment made by or on behalf of an Tax Equity Investor under the Tax Equity Documents (unless such amounts are required, under the Tax Equity Documents, to be held in escrow prior to the substantial completion of the applicable Project, then, until such proceeds are released) in an amount equal to such proceeds but not to exceed an amount equal to that necessary to repay the outstanding principal balance of the Loans made with respect to the applicable Project when applied pursuant to Section 2.9 (and any such excess proceeds shall be deposited into the applicable Construction Account for such Project or, if the Distribution Conditions have been satisfied with respect to such Project, shall be distributed pursuant to the instructions of the Borrower given in accordance with the Depositary Agreement).

(d)          Upon receipt by any Borrower Party of any net proceeds of performance liquidated damages with respect to a Project, in an amount equal to such performance liquidated

damages but not to exceed an amount equal to the outstanding principal balance of the Loans made with respect to the applicable Project when applied pursuant to Section 2.9 (and any such excess proceeds shall be deposited into the applicable Construction Account for such Project or, if the Distribution Conditions have been satisfied with respect to such Project, shall be distributed pursuant to the instructions of the Borrower given in accordance with the Depositary Agreement).

(e)          Upon receipt by any Borrower Party of any net proceeds from the (i) issuance of equity securities of such Borrower Party (other than in connection with any capital contributions), or (ii) incurrence of Indebtedness (other than Permitted Indebtedness) by such Borrower Party, in an amount equal to such proceeds.

(f)           An amount equal to the difference (if any) between (i) the Construction Loans made to a Project and (ii) the Reduced Commitment allocated to such Project.

(g)          In the event of the termination of all of the Commitments in accordance with Section 2.10(a), the Borrower shall on the date of such termination, terminate the Letters of Credit and/or cash collateralize the Letters of Credit in accordance with Section 2.16(o).

(h)          As required pursuant to the terms of the Depositary Agreement.

(i)           If the Equity Investor shall be required to make an Equity Contribution pursuant to the Equity Contribution Agreement due to the acceleration of the Equity Contributions under the Equity Contribution Agreement following an Event of Default, the Borrower shall prepay Construction Loans with any and all proceeds thereof, promptly upon receipt thereof, in accordance with Section 2.9 and the Equity Contribution Agreement;

2.9          Terms of All Prepayments.

(a)          Except as otherwise provided in this Agreement (including Section 2.8 and this Section 2.9), amounts to be applied in connection with mandatory prepayments made pursuant to Section 2.8 shall be applied: first, to any accrued fees, costs, charges or expenses of the Agents under the Loan Documents in connection with such prepayment; second, to any Breakage Costs payable to the Lenders under this Agreement in connection with such prepayment; third, to any accrued but unpaid interest on the Loans being prepaid; and fourth, to the outstanding principal of the Loans being prepaid. Amounts prepaid as mandatory prepayments of Loans may not be re-borrowed in respect of the Project in which the Loan was made.

(b)          All prepayments of Loans shall be applied among the Lenders according to their respective Proportionate Shares of the Loans being repaid at the time of the applicable prepayment.

(c)          The application of any prepayment pursuant to Sections 2.7 and 2.8 shall be (i) made first to Base Rate Loans and second to LIBOR Loans, in each case pro rata among such Base Rate Loans or LIBOR Loans, as applicable, and (ii) applied in inverse order of maturity, except for prepayments made under Sections 2.8(d) or (f), which shall be applied on a pro rata basis to maturities.

(d)          Upon the prepayment of any Loan (whether such prepayment is an optional prepayment or a mandatory prepayment), the Borrower shall pay to the Administrative Agent for the account of each Lender which made such Loan (i) all accrued interest to the date of such prepayment owed pursuant to the terms of this Agreement on the amount prepaid; (ii) all accrued fees to the date of such prepayment owed pursuant to the terms of this Agreement corresponding to the amount being prepaid; and (iii) if such prepayment is the prepayment of a LIBOR Loan on a day other than the last day of an Interest Period for such LIBOR Loan, all Breakage Costs incurred by such Lender as a result of such prepayment. Loans prepaid or repaid may not be re-borrowed with regard to the Project such Loan was originally made in respect of.

(e)          In no event shall any mandatory or optional prepayments be funded from the proceeds of any Loan.

(f)           Upon the repayment in full of the Loans allocated to a Project (and all related Obligations), the return of any issued Letters of Credit in respect of such Project to the Issuing Bank and the written request of the Borrower to terminate any Commitment allocated to such Project (the “Project Discharge Date”), the Administrative Agent, Collateral Agent, Lenders and the Issuing Bank agree to release from the Collateral any Lien granted by such Project Company in such Project Company’s assets, any Lien granted by the owner of such Project Company in the membership interests in such Project Company, and any Lien granted by the owner of the applicable Holdco in the membership interests in such Holdco (to the extent Holdco solely owned such Project Company). The parties hereto agree to amend this Agreement and the Security Agreement (to remove the pledge of any relevant Holdco, if applicable) as necessary to reflect the removal of the Collateral permitted pursuant to this Section 2.9(f), in addition, upon the removal of the Collateral related to a Project as permitted above, all terms in Schedule 1.1B related to such Project shall be deemed to have been removed from this Agreement.

(g)          In connection with any Project Discharge Date, excluding any Project Discharge Date occurring from and after the date a Project reaches COD, the Borrower shall obtain the prior written consent from the Administrative Agent and the Lenders prior to removing, in the aggregate, Projects from the Collateral in excess of 10% of the total expected aggregate nameplate capacity of all Projects that have been allocated Loans and Commitments hereunder as of such date, as calculated by the Administrative Agent; provided, however, that such consent shall not be required if, during the existance of a Default or Event of Default, all of the outstanding Obligations relating to all defaulted Projects are prepaid.

2.10        Termination or Reduction of Commitments.

(a)          The Borrower shall have the right to irrevocably terminate the Commitments in full in connection with a prepayment of all the outstanding Loans in accordance with Sections 2.7 or 2.8.

(b)          The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to irrevocably terminate, or from time to time reduce, any of the Construction Loan Commitments; provided that (i) each reduction of such Construction Loan Commitments (other than a Construction Loan Commitment reduction to zero) shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 (or if less, the

remaining amount of such Construction Loan Commitments), (ii) the Borrower shall not terminate or reduce the Construction Loan Commitments that has been allocated to a Project under Annex 2 unless, after giving effect thereto, the remaining unused amount of the Construction Loan Commitments allocated to such Project, the amount of the Equity Commitment allocated to such Project and any other cash in the Construction Account allocated to such Project or the Loss Proceeds Account allocated to such Project is sufficient to fund all Project Costs (together with Punch List Items) projected to be incurred from the date of such irrevocable termination or reduction of such Construction Loan Commitments for such Project through Final Completion of such Project, as certified to the Lenders by the Borrower and confirmed by the Independent Engineer and (iii) no such termination or reduction would reasonably be expected to cause a Default or Event of Default. Any such termination or reduction of the Construction Loan Commitments set forth in this Section 2.10 shall permanently reduce the Construction Loan Commitments.

(c)          The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent and the applicable Issuing Bank and Lender, to irrevocably terminate, or from time to time irrevocably reduce, any of the LC Commitments; provided that (i) each reduction of the LC Commitments shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 (or, if less, the remaining amount of the applicable LC Commitments), (ii) the Borrower shall not terminate or reduce the DSR LC Commitments unless, after giving effect thereto, the DSR Requirement shall be satisfied in accordance with the Depositary Agreement and (iii) the Borrower shall not terminate or reduce the Project LC Commitments unless it has demonstrated to the satisfaction of the Administrative Agent that, after giving effect to such termination or reduction, all of the collateral, support and similar requirements then in effect under the Material Project Documents are satisfied. Any such termination or reduction in the LC Commitments shall permanently and irrevocably reduce the applicable LC Commitments then in effect.

2.11        Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert LIBOR Loans to Base Rate Loans by delivering to the Administrative Agent an irrevocable written notice in the form of Exhibit A-3 (a “Notice of Conversion or Continuation”) no later than 10:00 A.M., New York time, on the Business Day preceding the proposed conversion date, provided that any such conversion of LIBOR Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to LIBOR Loans by delivering to the Administrative Agent an irrevocable Notice of Conversion or Continuation no later than 10:00 A.M., New York time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor), provided that no Base Rate Loan may be converted into a LIBOR Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Required Lenders have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

(b)          Any LIBOR Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower delivering to the Administrative Agent an irrevocable Notice of Conversion or Continuation, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest

Period to be applicable to such Loans, provided that no LIBOR Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations, and provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

2.12        Limitations on LIBOR Rate Tranches. Notwithstanding anything to the contrary in this Agreement, absent the consent of the Administrative Agent all borrowings, conversions and continuations of LIBOR Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the LIBOR Loans comprising each LIBOR Rate Tranche shall be equal to $5,000,000 or a whole multiple of $100,000 in excess thereof and (b) no more than six (6) LIBOR Rate Tranches shall be outstanding at any one time.

2.13        Interest Rates and Payment Dates.

(a)          Each LIBOR Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the LIBOR Rate determined for such day plus the Applicable Margin.

(b)          Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin.

(c)          (i) If all or a portion of the principal amount of any Loan shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2%, and (ii) if all or a portion of any interest payable on any Loan or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans plus 2%, in each case, with respect to clauses (i) and (ii) above, from the date of such nonpayment until such amount is paid in full (as well after as before judgment) (such applicable rate, the “Default Rate”).

(d)          Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand.

2.14        Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a LIBOR Rate. Any change in

the interest rate on a Loan resulting from a change in the Base Rate or the LIBOR Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

(b)          Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.13(a).

2.15        Promissory Notes. The obligation of the Borrower to repay the Construction Loans made by each Lender and to pay interest thereon at the rates provided herein shall, if requested by such Lender, be evidenced by Construction Loan promissory notes in the form of Exhibit C-1 (individually, a “Construction Loan Note” and, collectively, the “Construction Loan Notes”), each payable to such Lender or its registered successors or assigns and in the principal amount of such Lender’s Construction Loan Commitment. The obligation of the Borrower to repay the LC Loans made by each Issuing Bank or Lender, as applicable, and to pay all interest thereon at the rates provided herein shall if requested by such Issuing Bank or Lender, as applicable, be evidenced by an LC Loan promissory note substantially in the form of Exhibit C-2 (the, “LC Loan Note”), payable to such Issuing Bank or Lender, as applicable or its registered successors or assigns and in the principal amount of such Lender’s LC Commitment. The LC Loan Notes shall be delivered to each applicable Issuing Bank or Lender, as applicable, on the Initial Project Construction Loan Date.

2.16        Letters of Credit.

(a)          LC Commitment.

(i)          Subject to the terms and conditions hereof, including Section 3.4, from time to time on any Business Day during the period from the Signing Date until no later than thirty (30) days prior to the LC Commitment Termination Date;

(A)          Each DSR Issuing Bank agrees to issue each DSR Letter of Credit for each Project, for the account of the Borrower, on the date the applicable Project for which such DSR Letter of Credit is being issued reaches COD, in the maximum stated amount equal to such DSR LC Commitment allocated to such Project set forth on Annex 2 of each DSR Issuing Bank issuing such DSR Letter of Credit; and

(B)          the Project LC Issuing Bank agrees to issue each Project Letter of Credit for each Project, for the account of the Borrower, as and when requested by the Borrower in the maximum stated amount equal to the Project LC Commitment allocated to such Project set forth on Annex 2 of the Project LC Issuing Bank issuing such Project LC Letter of Credit.

(ii)         Each Letter of Credit shall (A) be denominated in Dollars; (B) expire no later than the earlier of (1) twelve (12) months from the date of issuance of such Letter of Credit and (2) the date that is seven (7) Business Days prior to the applicable LC Commitment Termination Date for such Project in respect of which such Letter of Credit relates; provided that each Letter of Credit shall provide for renewal, in the sole discretion of and on terms acceptable to the applicable Issuing Bank. for one (1) or more additional twelve 12 month periods (which in no event shall extend beyond the applicable LC Commitment Termination Date for such Project in respect of which such Letter of Credit relates) and provided that Goldman Sachs Bank USA shall not be required to have outstanding more than ten (10) Letters of Credit and notwithstanding anything herein to the contrary, shall not be obligated to issue any commercial or trade (as opposed to standby) Letter of Credit and (C) provided that, in respect of each DSR Letter of Credit issued in respect of a Project by each DSR Issuing Bank, the Administrative Agent shall draw on each such DSR Letter of Credit issued for each such Project and available to be drawn on a pro rata basis among all such DSR Letters of Credit that are outstanding for such Project at such time based on the DSR LC Commitment allocated to each such DSR Issuing Bank in regards to such Project. Each Letter of Credit shall provide that the available amount thereunder shall be irrevocably reduced by each Drawing made by the applicable beneficiary pursuant to such Letter of Credit (such amount for each such Letter of Credit, as so reduced from time to time, outstanding at any time, the “Available Amount”), subject to Section 2.16(m) in the case of Letters of Credit issued for subsequent Projects. Each Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify the Lenders, of any changes in the Available Amount of the Letter of Credit issued by it or the expiration date of any Letter of Credit; provided, however, that the failure to give such notice, or notice of a Drawing, shall not limit or impair the rights of such Issuing Bank hereunder and under the Loan Documents.

(iii)        No Issuing Bank shall at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause such Issuing Bank to exceed any limits imposed by, any applicable Governmental Rule or if the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank now or hereafter applicable to letters of credit generally.

(b)          Procedure for Issuance of Letters of Credit. The Borrower may request that an Issuing Bank issue the applicable Letter of Credit by delivering to such Issuing Bank and the Administrative Agent, at the applicable addresses for notices specified herein, a LC Issuance Notice, substantially in the form of Exhibit G, and a letter of credit application in such Issuing Bank’s standard form in connection with any request for a letter of credit, completed to the satisfaction of such Issuing Bank, and such other certificates, documents and other papers and information as such Issuing Bank may request. Upon receipt of such LC Issuance Notice and such application and the satisfaction of the conditions precedent in Section 3.3 and Section 3.4 in respect of such Project, such Issuing Bank will process such application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue such Letter of Credit requested thereby (but in no event shall such Issuing Bank be required to issue such Letter of Credit earlier than three (3) Business Days after its receipt of the LC Issuance Notice and

application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Bank and the Borrower. Each Issuing Bank shall furnish a copy of the Letter of Credit issued by it to the Borrower and the Administrative Agent promptly following the issuance thereof. Such Issuing Bank shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of such Letter of Credit.

(c)          Fees and Other Charges. In addition to the fees payable pursuant to Section 2.6, the Borrower shall pay or reimburse each Issuing Bank for such normal and customary costs and expenses as are incurred or charged by such Issuing Bank in issuing, negotiating, effecting payment under, amending or otherwise administering the Letter of Credit issued by it.

(d)          Drawings. In the event that a Drawing is made on any Letter of Credit on or prior to the applicable LC Commitment Termination Date, (i) the applicable Issuing Bank shall promptly notify the Borrower and the Administrative Agent, and the Administrative Agent shall notify the Lenders, of such Drawing, and (ii) any payment by such Issuing Bank of such Drawing shall, to the extent provided in Section 2.16(e) below, constitute the making by such Issuing Bank of a LC Loan to the Borrower in the amount of such Drawing. In such event, any Issuing Bank making a LC Loan shall be entitled to the same rights and remedies in respect of such LC Loans as any Lender that has made a Construction Loan has in respect of such Construction Loans hereunder. All such LC Loans made with respect to Drawings under the related Letter of Credit under this Section 2.16 shall be secured by the Security Documents as if made directly to the Borrower.

(e)          Reimbursement Obligation of the Borrower.

(A)          If a Drawing is paid under any Letter of Credit, the Borrower shall reimburse the applicable Issuing Bank for the amount of such Drawing so paid by paying to the Issuing Bank an amount equal to such Drawing in Dollars, no later than 3:00 p.m., New York City time, on the Business Day immediately following the date the Borrower receives notice thereof, subject to this Section 2.16(e). So long as no Event of Default has occurred and is continuing, if any Drawing is paid under any Letter of Credit issued by the related Issuing Bank, the payment by such Issuing Bank of such Drawing shall constitute the making of a DSR LC Loan or Project LC Loan, as applicable, by such Issuing Bank to the Borrower in the amount of such Drawing, and to the extent so financed, the Borrower’s Reimbursement Obligations shall be discharged and replaced by the resulting LC Loans. In addition, regardless of whether a DSR LC Loan or Project LC Loan is made, the Borrower shall reimburse such Issuing Bank for any taxes, fees, charges or other costs or expenses incurred by such Issuing Bank in connection with the payment of any such Drawing not later than 12:00 Noon, New York City time, on (i) the Business Day that the Borrower receives notice of such Drawing, if such notice is received on such day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above does not apply, the Business Day immediately following the day that the Borrower receives such notice. Each such payment shall be made to the applicable Issuing Bank at its address for notices referred to herein in

Dollars and in immediately available funds. Interest shall be payable on any LC Loans made by any Issuing as a result of any Drawing from the date on which the relevant Drawing is paid until payment in full.

(B)          If the Borrower fails to reimburse the Issuing Bank for any payment made by any Issuing Bank for any Drawing (other than the funding of such Drawing with LC Loans as contemplated above) such payment shall not constitute a Loan and shall not relieve the Borrower of its Reimbursement Obligations with respect to such Drawing (the “Unreimbursed Amount”) except to the extent such Drawing is funded with an LC Loan.

(f)          Obligations Absolute. The Borrower’s obligations under this Section 2.16 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Bank, the beneficiary of any Letter of Credit or any other Person or the occurrence or continuance of a Default or Event of Default. The Borrower also agrees with the Issuing Banks that the Issuing Banks shall not be responsible for, and the Borrower’s Reimbursement Obligations shall not be affected by, among other things, the validity or genuineness of documents (including, without limitation, any Letter of Credit or this Agreement or any other Loan Document) or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which any Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of any Letter of Credit or any such transferee. No Issuing Bank shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with the related Letters of Credit, except for errors or omissions found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Issuing Bank. The Borrower agrees that any action taken or omitted by any Issuing Bank under or in connection with the related Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct, shall be binding on the Borrower and shall not result in any liability of any Issuing Bank to the Borrower.

(g)          Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the applicable Issuing Bank shall promptly notify the Borrower of the date and amount thereof. The responsibility of any Issuing Bank to the Borrower in connection with any draft presented for payment under the applicable Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under the such Letter of Credit in connection with such presentment are substantially in conformity with the such Letter of Credit.

(h)          Applications. To the extent that any provision of any letter of credit application or other agreement submitted by the Borrower to, or entered into with, any Issuing Bank related to the applicable Letter of Credit is inconsistent with the provisions of this Agreement, the provisions of this Agreement shall control.

(i)           LC Loan Interest. The Borrower shall pay interest with respect to all LC Loans resulting from all Drawings pursuant to Section 2.13; provided, however, upon the occurrence of any Drawing, the Borrower shall be deemed to have elected the interest rate based on the then-applicable Base Rate. Thereafter, LC Loans may from time to time be LIBOR Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Section 2.11.

(j)           Interim Interest. If any Issuing Bank shall make any payment in respect of a Drawing, then, unless the Borrower shall reimburse such Drawing in full on the date such Drawing is made, the unpaid amount thereof shall bear interest, for each day from and including the date such Drawing is made to but excluding the date that the Borrower reimburses such Drawing (including by the making of an LC Loan), at the rate per annum then applicable to Base Rate Loans; provided that if such Drawing is not reimbursed by the Borrower when due pursuant to Section 2.16(e), then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank.

(k)          Return of Letters of Credit. On the day that any Letter of Credit expires by its terms, the Borrower shall cause the original of such Letter of Credit to be returned by the applicable beneficiary to such Issuing Bank.

(l)           Modifications and Supplements. The issuance by an Issuing Bank of any modification or supplement to any Letter of Credit (other than a reduction or release thereof or as contemplated by Section 2.16(m)) in accordance with this Agreement shall be subject to the same conditions as are applicable under this Section 2.16 and Section 3.4 to the issuance of new Letters of Credit, and no such modification or supplement shall be issued hereunder unless either (i) the respective Letter of Credit affected thereby would have complied with such conditions had it originally been issued hereunder in such modified or supplemented form or (ii) the applicable Issuing Bank shall have consented thereto.

(m)         Adjustments to Amounts Available for Drawing. To the extent that any time prior to November 4, 2020 (i) any Letter of Credit issued for a Project is (A) returned by the Beneficiary thereof and requested to be cancelled by the Beneficiary thereof; (B) expires by its terms or (C) drawn and then such resulting Reimbursement Obligation or LC Loan, as applicable, is fully repaid, then, in each such case, the LC Commitment of the Issuing Bank and the Lenders shall be increased (aa) by the stated amount of such cancelled or returned LC and (bb) by the amount of the Reimbursement Obligations paid or LC Loans paid, in each such case, by the Borrower. After such LC Commitment is increased, such LC Commitment shall be available to be allocated by the Borrower to new Projects pursuant to and in accordance with the terms hereof.

(n)          Resignation as Issuing Bank. Any Issuing Bank may, upon thirty (30) days’ notice to the Administrative Agent, the Lenders and the Borrower, resign as an Issuing Bank. In the event of any such resignation as an Issuing Bank, Borrower shall be entitled to appoint from among the Lenders a successor Issuing Bank hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of any Issuing Bank. When an Issuing Bank resigns as an Issuing Bank, it shall retain all of the rights, powers, privileges and duties of an Issuing Bank hereunder with respect to all Letters of Credit

that it issued, including Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all LC Obligations with respect thereto. Upon the appointment of a successor Issuing Bank by the Borrower, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the resigning Issuing Bank as the case may be, (b) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the applicable Issuing Bank to effectively assume the obligations of such Issuing Bank with respect to such Letters of Credit and (c) the resigning Issuing Bank shall assign its LC Commitment to issue Letters of Credit to such successor Issuing Bank.

(o)          Cash Collateralization. In the event that:

 (i) any Event of Default shall occur and be continuing, (i) in the case of an Event of Default described in Section 7.5 on the Business Day or (ii) in the case of any other Event of Default, on the third Business Day, following the date on which the Borrower receives notice from the Administrative Agent on behalf of the Issuing Bank demanding the deposit of cash collateral pursuant to Section 7, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Banks, an amount in cash equal to the sum of (A) 105% of the total Available Amounts of the Letters of Credit and LC Obligations as of such date plus (B) any accrued and unpaid interest thereon (the “Cash Collateral”); provided that, upon the occurrence of any Event of Default with respect to the Borrower described in Section 7.5, the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable in Dollars, without demand or other notice of any kind. The Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent required by Section 2.8. Each such deposit pursuant to this paragraph or pursuant to Section 2.8 shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Borrower hereby grants to the Administrative Agent, for the benefit of each Issuing Bank, and agrees to maintain, a first priority security interest in all such Cash Collateral as security and the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of (i) for so long as an Event of Default shall be continuing, the Administrative Agent and (ii) at any other time, the Borrower, in each case, in Permitted Investments and at the risk and expense of the Borrower, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Banks for payments in respect of Drawings for which such Issuing Banks has not been repaid and, to the extent not so applied, shall be held for the satisfaction of the Reimbursement Obligations of the Borrower in respect of the applicable Letters of Credit at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required Lenders in accordance with Section 7.18), be applied to satisfy other obligations of the Borrower under this  Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an

Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived. If the Borrower is required to provide an amount of cash collateral pursuant to Section 2.8, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such return, the Borrower would remain in compliance with Section 2.8 and no Event of Default shall have occurred and be continuing.

(p)          Letters of Credit Issued for Borrower Parties. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of a Borrower Party, subject to Section 2.16(e), Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all Drawings under such Letter of Credit. The Borrower Party and the Pledgors acknowledge that the issuance of Letters of Credit in support of the obligations of the Borrower Parties inures to the benefit of the Borrower and such Pledgor and the Borrower’s business derives substantial benefits from the businesses of such Borrower Parties.

(q)          Applicability of ISP. Unless otherwise expressly agreed by the applicable Issuing Bank and Borrower, when a Letter of Credit is issued or when it is amended with the consent of the beneficiary thereof, the rules of the ISP shall apply to each standby Letter of Credit and as to all matters not governed thereby, the law of the State of New York. Notwithstanding the foregoing, no Issuing Bank shall be responsible to the Borrower for, and each Issuing Bank’s rights and remedies against Borrower shall not be impaired by, any action or inaction of such Issuing Bank or permitted under any law, order or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the law or any order of a jurisdiction where such Issuing Bank or the beneficiary is located, the practice stated in the ISP, or in the decisions, opinions, practice statements or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade-International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(r)           The effectiveness of any non-renewal, cancellation or non-issuance of any Letter of Credit pursuant to Sections 2.16(a)(ii) or 2.16(a)(iii) shall be conditioned upon the delivery of at least 90-days advance written notice (or shorter advance written notice if it relates to non-issuance) from the relevant Issuing Bank of the relevant Letter of Credit to the Borrower regarding the same (an “LC Notice”).  In the event that any Issuing Bank has delivered an LC Notice, the Borrower shall have the right to replace the Issuing Bank pursuant to the terms of this paragraph (r).  In the event that the Borrower elects to exercise its rights to replace the Issuing Bank, it shall first deliver a notice to the relevant Issuing Bank then party to this Agreement requesting that one of the other existing Lenders replace the terminating Issuing Bank of the relevant Letter of Credit, as may be the case.  If an existing Lender agrees to replace the such Issuing Bank on the same terms as those provided by the Issuing Bank of the relevant Letter of Credit being replaced, then the Issuing Bank of the relevant Letter of Credit being replaced shall assign, and such existing other Lender shall accept, the assignment of the role of the Issuing Bank of the relevant Letter of Credit and related LC Obligations together with all (and not less than all) of the LC Commitments held by such Issuing Bank pursuant to documentation reasonably acceptable to the parties to such assignment and the Borrower. If no existing Lender

has agreed to replace such Issuing Bank of the relevant Letter of Credit within 30 days of such request by the Borrower, then the Borrower may elect to have a financial institution that is not an existing Lender replace the terminating Issuing Bank of the relevant Letter of Credit through an assignment by the Issuing Bank of its LC Commitments and Letters of Credit in accordance with this Agreement (however, no consent of the Administrative Agent shall be required) and the Issuing Bank of the relevant Letter of Credit being replaced shall assign all (and not less than all) of its LC Commitments and Letters of Credit pursuant to documentation reasonably acceptable to the parties to such assignment.

2.17        General Loan Funding Terms; Pro Rata Treatment and Payments.

(a)          (i) Each Notice of Borrowing and notice of conversion of Loans shall be delivered to the Administrative Agent in accordance with the notice provisions of Section 9.2. The Administrative Agent shall promptly notify each Lender of the contents of such notices.

(ii)         No later than 1:00 P.M., New York time, on a date of a requested Borrowing set forth in a timely delivered Notice of Borrowing, if the applicable conditions precedent listed in Section 3.1, Section 3.2 and Section 3.3 have been satisfied or waived, each Lender shall make available the Loans, as applicable, requested in the Notice of Borrowing in Dollars and in immediately available funds, and shall deposit such funds into the Construction Account for the applicable Project for immediate application pursuant to the Depositary Agreement.

(iii)        [Intentionally Omitted].

(b)          Each Borrowing by the Borrower from the Lenders hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Proportionate Shares of such Loans, as the case may be, of the relevant Lenders.

(c)          Each payment (except as otherwise set forth in Sections 2.7, 2.8 and 2.9) by the Borrower on account of principal of and interest on the Construction Loans shall be made pro rata according to the respective outstanding principal amounts of such Loans then held by the Lenders.

All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 10:00 A.M., New York time, on the due date thereof to the Administrative Agent for the account of each Agent and each Lender and each Issuing Bank (as the case may be) at its account identified in Annex 1 from time to time, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Person promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.8. If any payment hereunder (other than payments on the LIBOR Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. In the case of any extension of any payment of principal pursuant to the preceding sentence or the definition of Interest Period, interest thereon shall be payable at the then applicable rate during such extension.

(d)          Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans, on demand, from the Borrower.

(e)          Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

(f)           If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.17(d), 2.17(e) or 9.8, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision of this Agreement), apply any amounts thereafter received by the Administrative Agent or the Issuing Banks for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, provided, for the avoidance of doubt, notwithstanding the application of amounts received from the Borrower (including in respect of Debt Service, interest payments, fee payments or other obligations) to satisfy such Lender’s obligations, the receipt of payments from the Borrower will credit the obligations of the Borrower so paid.

2.18        Inability to Determine Interest Rate. If prior to the first day of any Interest Period:

(a)          the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the

relevant market, adequate and reasonable means do not exist for ascertaining the LIBOR Rate for such Interest Period, or

(b)          the Administrative Agent shall have received notice from the Required Lenders that the LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any LIBOR Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) any Loans that were to have been converted on the first day of such Interest Period to LIBOR Loans shall be continued as Base Rate Loans and (z) any outstanding LIBOR Loans shall be converted, on the last day of the then-current Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent (at the direction or with the consent of such notifying Lenders), no further LIBOR Loans shall be made or continued as such, nor shall the Borrower have the right to convert Loans to LIBOR Loans.

2.19        Legal Requirements. (a) If the adoption of or any change in any Legal Requirement or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:

(i)          shall subject any Lender to any Tax of any kind whatsoever with respect to this Agreement, the Letters of Credit, any application with respect to the Letters of Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 2.20 and changes in the net income tax rate, franchise tax rate or branch profits tax rate of such Lender);

(ii)         shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the LIBOR Rate; or

(iii)        shall impose on such Lender any other condition;

and the result of any of the foregoing is to increase the cost to such Lender, by an amount that such Lender deems to be material, of making, converting into, continuing or maintaining LIBOR Loans or issuing the Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.

(b)          If any Lender shall have determined that the adoption of or any change in any Legal Requirement regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in respect of the Letters of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction.

(c)          A certificate describing in reasonable detail the basis and calculation of any additional amounts payable pursuant to this Section submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to compensate a Lender pursuant to this Section 2.19 for any amounts incurred more than nine (9) months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such nine-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

(d)          For the avoidance of doubt, this Section 2.19 shall apply to all requests, rules, guidelines or directives concerning capital adequacy issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act, regardless of the date adopted, issued, promulgated or implemented and this Section shall apply to all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, regardless of the date enacted, adopted or issued or implemented.

2.20        Taxes.

(a)          To the extent permitted by law, payments made by the Loan Parties under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto (“Taxes”). If any Taxes, excluding net income taxes, franchise taxes (imposed in lieu of net income taxes) and branch profits taxes imposed on the Administrative Agent or any Lender as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than

any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document) (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement, provided, however, that Loan Parties shall not be required to increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes or Other Taxes (i) that are attributable to such Lender’s failure to comply with the requirements of paragraph (e) or (f) of this Section, (ii) that are United States withholding taxes imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph, (iii) that are withholding taxes to the extent imposed as a result of the Administrative Agent or any Lender designating a different Lending Office (other than at the request of the Borrower or any of its Affiliates), except to the extent that the Administrative Agent or such Lender was entitled, immediately prior to the designation, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph or (iv) that are United States withholding taxes imposed under FATCA.

(b)          In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c)          The Borrower shall indemnify the Administrative Agent, and each Lender, within fifteen (15) days after written demand therefor, for the full amount of any Non-Excluded Taxes or Other Taxes (including Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.20) paid by the Administrative Agent or such Lender and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that the Borrower will not be obligated to indemnify the Administrative Agent or Lender for (A) any penalties, interest or expenses directly related to Non-Excluded Taxes or Other Taxes, but only to the extent such penalties, interest or expenses are directly and solely caused by and arise from the indemnitee’s gross negligence, willful misconduct or material breach of its obligations hereunder, as determined by a final, non-appealable judgment of a court of competent jurisdiction or (B) with respect to any taxes (i) that are attributable to such Lender’s failure to comply with the requirements of paragraph (e) or (f) of this Section, (ii) that are United States withholding taxes imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph, (iii) that are withholding taxes to the extent imposed as a result of the Administrative Agent or any Lender designating a different Lending Office (other than at the request of the Borrower or any of its Affiliates), except to the extent that the Administrative Agent or such Lender was entitled, immediately prior to the designation, to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph or (iv) that are United States withholding taxes imposed under FATCA. The Administrative

Agent and each Lender agree to use reasonable efforts to give notice to the Borrower of the assertion of any claim against the Administrative Agent or such Lender, as applicable, relating to such Non-Excluded Taxes or Other Taxes reasonably promptly after the principal officer of the Administrative Agent or such Lender responsible for administering this Agreement has actual knowledge of such claim; provided that the Administrative Agent’s or such Lender’s failure to notify Borrower of such assertion shall not relieve Borrower of its obligation under this Section 2.20(c). A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent) or by the Administrative Agent on its own behalf shall be conclusive absent manifest error.

(d)          Whenever any Non-Excluded Taxes or Other Taxes are payable by any Loan Party, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for its own account or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by such Loan Party showing payment thereof, if available, or such other evidence of payment that is reasonably satisfactory to the Administrative Agent or the relevant Lender. If any Loan Party fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure.

(e)          To the extent required by this paragraph (e), each Lender (or Transferee) shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) either (A) if such Lender or Transferee is a “U.S. Person” as defined in Section 7701(a)(30) of the Code (a “U.S. Lender”) (other than exempt holders that so certify), two copies of a U.S. Internal Revenue Service Form W-9 or any successor form, properly completed and duly executed by such U.S. Lender or (B) if such Lender or Transferee is not a U.S. Lender (a “Non-U.S. Lender”), two copies of either U.S. Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI or Form W-8IMY (together with any applicable underlying U.S. Internal Revenue Service forms), or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement substantially in the form of Exhibit H to this Agreement and the applicable U.S. Internal Revenue Service Form W-8, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each U.S. Lender or Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation) and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent. In addition, each U.S. Lender or Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Lender, and shall deliver extensions or renewals thereof as may reasonably be requested by the Borrower or the Administrative Agent. Each U.S. Lender or Non-U.S. Lender shall promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of

this paragraph, a U.S. Lender or Non-U.S. Lender shall not be required to deliver any form pursuant to this paragraph that such Lender is not legally able to deliver.

(f)           A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate, provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment such completion, execution or submission would not subject such Lender to any material unreimbursed cost or would not materially prejudice the legal position of such Lender.

(g)          If a payment made to a Lender would be subject to United States withholding Tax imposed under 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.

(h)          If the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.20, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.20 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.

(i)           The agreements in this Section 2.20 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

2.21        Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of LIBOR Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from LIBOR Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of LIBOR Loans on a day that is not the last day of an Interest Period with respect thereto (“Breakage Costs”). Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

2.22        Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.19 or 2.20(a) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.19 or 2.20(a).

2.23        Replacement of Lenders. If (a) any Lender requests reimbursement for amounts owing pursuant to Section 2.19 or 2.20(a) or (b) any Lender defaults in its obligation to make Loans hereunder, the Borrower shall have the right, exercisable on five (5) Business Days prior written notice delivered to the applicable Lender, to replace such Lender; provided that (i) such replacement does not conflict with any Governmental Rule, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall have taken no action under Section 2.22 so as to eliminate the continued need for payment of amounts owing pursuant to Section 2.19 or 2.20(a), (iv) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section 2.21 if any LIBOR Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement financial institution shall be reasonably satisfactory to the Administrative Agent, (vii) such replacement shall be made in accordance with the provisions of Section 9.7 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to in Section 9.7), (viii) until such

time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.19 or 2.20(a), as the case may be, (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender and (x) in the case of a Lender that is an Issuing Bank, the Letters of Credit issued by such Issuing Bank have expired or have been terminated unless other arrangements satisfactory to the applicable Issuing Bank have been made in connection therewith.

2.24        Accordion. Subject to the terms and conditions of this Section 2.24 and so long as no Default or Event of Default has occurred and is continuing (prior to or in connection with any such increase) and at any time prior to May 4, 2020, the Borrower may, by written notice to the Administrative Agent and the Lenders request a one-time increase in the Construction Loan Commitments in the amount not to exceed $100,000,000. Any Lender that has received such a notice may accept or decline such offer in its sole discretion. To the extent that any Lender agrees to increase its Construction Loan Commitment (in its sole discretion), (i) the parties hereto shall amend this Agreement accordingly to increase such Lender’s Construction Loan Commitment and the total Construction Loan Commitment accordingly; (ii) the Borrower shall pay to such Lender any and all fees charged by such Lender in respect of such additional Commitment; and (iii) if requested by such Lender, Notes evidencing such increase in the Construction Loan Commitment shall be delivered to such Lender duly executed by the Borrower.

2.25        Resizing.

(a)          To the extent that the Borrower causes a Borrower Party to execute Tax Equity Documents after the date of the initial Borrowing of Construction Loans for a Project and desires the Construction Loan Commitment set forth on Annex 2 and allocated to such Project to be increased (provided that the Construction Loan Commitment has not otherwise been reduced to zero as of such date), the Administrative Agent and the Lenders shall agree to amend Annex 2 to increase the Construction Loan Commitment for such Project solely to the extent following conditions are satisfied by the Borrower: (i) the revised Construction Loan Commitment allocated to such Project as set forth on Annex 2 shall be determined for such Project based on the debt sizing parameters set forth on Annex 5 (after giving effect to the deliverables delivered under this Section 2.25) and otherwise satisfactory to the Administrative Agent and the Lenders. (ii) as of the date the Borrower satisfied the conditions precedent set forth in Section 3.2 with respect to such Project, the Borrower received the written approval of the Administrative Agent and the Lenders to a term sheet setting forth the terms of a potential tax equity transaction (that was agreed to by a tax equity investor at such time) that was expected to result in executed tax equity documents between the applicable Borrower Party and such tax equity investor by no later than 130 days after the initial Construction Loan was funded for such Project and such tax equity documents have been duly executed and delivered by the applicable Borrower Party and such tax equity investor, on terms and conditions substantially similar to the terms set forth under such term sheet, and within the time frame set forth above; and (iii) such tax equity documents shall be in form and substance acceptable to the Administrative Agent and the Lenders and Schedule 1.1B shall be updated to reflect such tax equity documents as Tax Equity Documents hereunder.

(b)          In the event that any counterparty to the Tax Equity Documents has failed (giving effect to any cure period provided therein) to fund when the conditions precedent to such funding have been satisfied under the applicable Tax Equity Documents, the Administrative Agent shall calculate the difference between the Construction Loan Commitment previously allocated to such Project under Annex 2 and the then applicable Construction Loan Commitment to be allocated to such Project based on the debt sizing parameters set forth in Annex 5 (excluding any debt sizing provided for the execution of any Tax Equity Documents) and Annex 2 shall be amended to reflect the updated Construction Loan Commitment allocated to such Project (the “Reduced Commitment”).

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

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

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

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

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

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

ARTICLE 3.

CONDITIONS PRECEDENT

3.1          Conditions Precedent to the Signing Date. The Lenders, the Administrative Agent, and the Borrower acknowledge and agree that each of the following conditions have been satisfied as of, or prior to, the date hereof:

(a)          Delivery to the Administrative Agent of duly authorized and executed originals of this Agreement.

(b)          Each representation and warranty set forth in the Loan Documents is true and correct on the Signing Date (or, if any representation or warranty is stated to have been made as of a specific date, as of such specific date).

(c)          No Default or Event of Default has occurred and is continuing or will result from the execution of the Loan Documents on the Signing Date.

(d)          No Material Adverse Effect or event, condition or circumstance that would reasonably be expected to constitute a Material Adverse Effect shall have occurred and be continuing.

(e)          The Borrower shall have paid all fees, costs and other expenses and all other amounts then due and payable by the Borrower pursuant to this Agreement (including Section 9.5), each Agent Fee Agreement and each other fee agreement between any Loan Party and any Lender or Agent (the “Other Fee Agreements”).

(f)           Delivery by the Borrower to the Administrative Agent of all such documentation and information requested by Administrative Agent and the Lenders that are necessary (including the names and addresses of the Borrower) for Administrative Agent and the Lenders to identify the Borrower in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder).

3.2          Conditions Precedent to the Initial Project Construction Loan Date. The obligation of the Lenders to make the initial Construction Loan and other extensions of credit with respect to any Project is subject to the prior satisfaction of the Administrative Agent and the Lenders of each of the following conditions (unless waived in writing by the Administrative Agent and the Lenders):

(a)          Delivery to the Administrative Agent of duly authorized and executed originals of each Loan Document entered into on the date the initial Construction Loan is funded hereunder and each other date a Loan is funded, as applicable, including (A) any Construction Loan Notes and LC Loan Notes requested by Lenders and the Issuing Bank, (B) with respect to any Holdco or Project Company, the Guaranty and Security Agreement, Guaranty, Pledge and Security Agreement, and any amendment to the Security Agreement (to add the pledge of any additional Holdco), (C) the Depositary Agreement, (D) if required by the Lender, a Consent from the Tax Equity Investor, (E) except for Small Projects, of a Deed of Trust with respect to the Mortgaged Property related to such applicable Project and (F) if requested by or on behalf of the Borrower, the Lenders will use commercially reasonable efforts to enter into an agreement with the Tax Equity Investor containing the terms set forth on Exhibit F (to the extent Tax Equity Documents for such Project have been duly executed and delivered as of such date), in each such case, in form and substance acceptable to the Lenders, the Borrower and the Administrative Agent.

(b)          Delivery to the Administrative Agent of a copy of the articles of incorporation, certificate of formation, certificate of limited partnership, certificate of registration or other formation documents, including all amendments thereto, of each of the applicable Loan Parties, each certified as of a recent date by the Secretary of State of the state of such Person’s formation or organization, and a certificate as to the good standing of such Person as of a recent date from such Secretary of State;

(c)          Delivery to the Administrative Agent of a certificate of a Responsible Officer or, if applicable, a Managing Member, of each of the applicable Loan Parties (certifying as to (A),

(B), (C), (D) and (E) below only), dated as of the date of such Borrowing and certifying (A) that attached thereto is a true and complete copy of the limited liability company operating agreement, bylaws or partnership agreement of such Person (which shall be in form and substance reasonably satisfactory to the Administrative Agent, the other Agents, and the Lenders), as in effect on the date of such Borrowing and the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the appropriate governing entity or body of such Person, authorizing the execution, delivery and performance of the Operative Documents to which such Person is a party and, if applicable, the borrowings hereunder and the granting of the Liens contemplated to be granted by the applicable Loan Party under the Security Documents (if any), and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation, certificate of formation, certificate of limited partnership, certificate of registration or other formation documents of such Person have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer executing any Operative Document or any other document delivered in connection herewith on behalf of such Person, and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Person or, to the Knowledge of such Secretary or Assistant Secretary, threatening the existence of such Person;

(d)          Each document (including any UCC financing statement) required by the Security Documents executed on the date of the initial Construction Loan hereunder or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (subject only to Permitted Liens that, pursuant to applicable law, are entitled to a higher priority than the Lien of the Collateral Agent) shall be in proper form for filing, registration or recordation.

(e)          Delivery to the Collateral Agent of (i) the certificates representing the shares of Capital Stock pledged pursuant to the Pledge Agreement, the Security Agreement and the Guaranty, Pledge and Security Agreement and any amendment to the Security Agreement being executed on such Borrowing date, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the applicable Holdco, the Borrower and the Pledgor, as applicable and (ii) each promissory note (if any) pledged to the Collateral Agent pursuant to the Security Documents endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.

(f)           Delivery to the Administrative Agent of the results of a recent lien search in each of the jurisdictions where assets of the Borrower and Pledgor are located, and such searches shall reveal no Liens on any of the assets of the Borrower or Pledgor except for Permitted Liens or Liens discharged on or prior to such Borrowing Date pursuant to documentation satisfactory to the Administrative Agent and the Lenders. Delivery to the Administrative Agent of the results of a recent lien search in each of the jurisdictions where assets of the Borrower (if the Security Agreement is being amended), the applicable Holdco and the applicable Project Company are located, and such searches shall reveal no Liens on any of the assets of the Borrower, the applicable Holdco or the applicable Project Company except for Permitted Liens pursuant to documentation satisfactory to the Administrative Agent and the Lenders.

(g)          The Collateral Accounts shall have been established in compliance with this Agreement and the Depositary Agreement.

(h)          Delivery to the Administrative Agent of the unaudited pro forma balance sheet of the Borrower as of the such Borrowing Date (including the notes thereto), which balance sheet shall have been prepared giving effect (as if such events had occurred on such date) to (i) the Construction Loans to be made hereunder on the date hereof and the use of proceeds thereof and (ii) the payment of fees and expenses in connection with the foregoing.

(i)           Delivery to the Administrative Agent and the Collateral Agent of opinions, dated as of such Borrowing Date of:

(i)           with respect to the first Borrowing hereunder, a New York law opinion of Chadbourne & Parke, LLP, special counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent, the Collateral Agent, and the Lenders, addressing such matters as the Administrative Agent and the Collateral Agent may request;

(ii)          an opinion of Chadbourne & Parke, LLP or other counsel acceptable to the Administrative Agent, special counsel for any Loan Party, in form and substance satisfactory to the Administrative Agent, the Collateral Agent, and the Lenders, addressing such matters as the Administrative Agent and the Collateral Agent may request in connection with any Loan Document executed (or amended) after the first Borrowing hereunder;

(iii)         with respect to Large Projects, special counsel for each Holdco, Project Company and the Borrower in form and substance satisfactory to the Administrative Agent, the Collateral Agent, and the Lenders, addressing such matters as the Administrative Agent and the Collateral Agent may request, including a New York law opinion, and an opinion addressing the relevant Material Project Documents for such Project, federal and state energy and regulatory matters and, for ground-mounted Projects, environmental matters and certain permitting matters, in each case, relevant to the Project Company and each applicable Project; and

(iv)         such other legal opinions as the Administrative Agent may reasonably request, including, except with respect to Small Projects, opinions from counsel to the Material Project Participants that are party to a Power Purchase Agreement or EPC Agreement.

(j)           Delivery to the Administrative Agent of updates to the following Exhibits, Schedules and Annexes with respect to such Project, which shall each be in form and substance acceptable to the Administrative Agent and the Lenders: (i) Exhibit E; (ii) Schedules 1.1B; 1.1C; 4.15; 4.19(a), (c) and (c); 4.34(a) and (b); and Annexes 2 and 3.

(k)          Delivery to the Administrative Agent of the Construction Budget and Schedule and the Base Case Model (each certified, by a Responsible Officer of the Borrower, as having been prepared in good faith) applicable to such Project, in form and substance satisfactory to the Administrative Agent, the Lenders and the Independent Engineer; provided, however, that such

Base Case Model shall contain pro forma projections for a period of 20 years from the projected commercial operation date under the Power Purchase Agreement for such Project and shall demonstrate, based on the assumptions contained therein, that the Borrower has sufficient funds pursuant to the Construction Loan Commitments allocated to such Project and Equity Commitment allocated to such Project to achieve COD and Final Completion for such Project.

(l)           Delivery to the Administrative Agent of a certificate issued by the Secretary of State of the State of state the Project is located in certifying that the applicable Project Company is authorized to transact business in such state.

(m)         Delivery to the Administrative Agent of a true, complete and correct copy of each Material Project Document and any existing supplements or amendments thereto related to such Project, all of which Material Project Documents and supplements or amendments thereto shall be satisfactory in form and substance to the Administrative Agent, and the Lenders, shall have been duly authorized, executed and delivered by the parties thereto, and all of which Material Project Documents shall be in full force and effect on the applicable Borrowing Date and shall be certified by a Responsible Officer of the Borrower as being true, complete and correct copies and in full force and effect pursuant to the certificate referred to in Section 3.2(o), below, and delivery to the Administrative Agent of a certificate of a Responsible Officer of the Borrower, that to the best of the Borrower’s Knowledge no party to any such Material Project Document is, or but for the passage of time or giving of notice or both will be, in material breach of any obligation thereunder; provided, however, that with respect to Small Projects, if the Borrower certifies that the form of any such Material Project Document (excluding any Tax Equity Document) is in the form attached hereto as Exhibit O, such Material Project Document shall be deemed satisfactory to the Administrative Agent and the Lenders.

(n)          Except for Small Projects, deliver to the Administrative Agent and the Title Company an ALTA/ACSM survey of the land and improvements constituting the Mortgaged Property certified to the Administrative Agent and the Title Company in a manner satisfactory to them, dated within thirty (30) days of the Borrowing Date, prepared by an independent professional licensed land surveyor satisfactory to the Administrative Agent and the Title Company and in form and substance satisfactory to the Administrative Agent and the Title Company; provided, however, that for rooftop projects, delivery of a “site plan” showing the proposed improvements shall satisfy the above requirement.

(o)          Delivery to the Administrative Agent of an Initial Project Construction Loan Date certificate, dated as of the Initial Project Construction Loan Date for each Project, signed by a Responsible Officer of the Borrower, in substantially the form of Exhibit I to this Agreement.

(p)          Each document (including any UCC financing statement) required by the Security Documents to be executed as of the date of such Borrowing or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (subject only to Permitted Liens that, pursuant to applicable law, are entitled to a higher priority than the Lien of the Collateral Agent) shall be in proper form for filing, registration or recordation and, for each Project other than a Small Project, the applicable Deed of Trust shall have been duly recorded (or will be duly

recorded upon the date of the Borrowing) within the applicable land records of the county in which each applicable Project is located.

(q)          Except for Small Projects or with respect to individual Project sites that have an expected nameplate capacity to be 2.0 MW dc or less, the Administrative Agent shall have received in respect of the Mortgaged Property the applicable Title Policy, which Title Policy shall be in form and substance satisfactory to the Administrative Agent, contain such endorsements as reasonably requested by the Administrative Agent (including mechanics’ lien endorsement with pending disbursement coverage such as the FA-61 (a “Mechanics’ Lien Endorsement”), an ALTA 36.6 “Energy Projects - Encroachment Endorsement” (without any exceptions to full encroachments coverage), and an ALTA 35.2 “Minerals and Other Subsurface Substance Endorsement” (without any exceptions to full mineral coverage)). The Administrative Agent shall have received evidence satisfactory to the Administrative Agent, and the Lenders that all premiums in respect of such Title Policy, all recording tax charges, and related expenses shall have been paid.

(r)          With respect to any Projects that are ground-mounted, the Administrative Agent shall have received (A) a policy of flood insurance that (1) covers any parcel of real property upon which is located a building that is part of a Project (for clarity, the solar energy generating systems themselves shall not be considered a “building” in connection with such determination) and that is located within the Project Site and which is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards, (2) is written in an amount reasonably satisfactory to the Administrative Agent, and (3) has a term ending not later than the Construction Loan Maturity Date applicable to such Project.

(s)          Except for Small Projects or with respect to individual Project sites that have an expected nameplate capacity to be 2.0 MW dc or less, the Administrative Agent shall have received a copy of all recorded documents referred to, or listed as exceptions to title in, the Title Policy and a copy of all other material documents affecting the Mortgaged Property of which any Borrower Party has any Knowledge.

(t)          Delivery to the Administrative Agent of counterparty consents or estoppels (the “Consents”) to collateral assignment of each Material Project Document (including estoppels for the Site Lease Agreements) that the Administrative Agent requests such a consent for, in each case in form and substance as shall be reasonably satisfactory to the Administrative Agent and the Lenders; provided, however, that with respect to Small Projects, Consents shall only be required if (i) such Material Project Document does not expressly allow such contract to be collaterally assigned to lenders and (ii) the result of the Lenders due diligence with respect to such Material Project Documents requires a Consent to be delivered. The Borrower shall also have provided notices, in form and substance as shall be reasonably satisfactory to the Administrative Agent and the Lenders, to the Transmission Utility of the collateral assignment of the Interconnection Agreements then in effect.

(u)          Insurance complying with Schedule 5.4 shall be in full force and effect. With respect to Large Projects, delivery to the Administrative Agent of the Insurance Consultant’s certificate and the Insurance Consultant’s report to the effect that each Borrower Party’s insurance policies required for the construction phase of each applicable Project are in full force

and effect, are not subject to cancellation without thirty (30) days’ prior notice (ten (10) days for non-payment of premiums) and otherwise materially conform with the insurance requirements set forth in Section 5.4(a) and Schedule 5.4 and the Material Project Documents set forth in the Insurance Consultant’s report, and otherwise in form and substance satisfactory to the Administrative Agent and the Lenders. With respect to Small Projects, delivery to the Administrative Agent of the an insurance broker’s letter with respect to each Borrower Party’s insurance policies required for the construction phase of each applicable Project and the Borrower’s certification that such insurance policies are in full force and effect, are not subject to cancellation without thirty (30) days’ prior notice (ten (10) days for non-payment of premiums) and otherwise materially conform with the insurance requirements set forth in Section 5.4(a) and Schedule 5.4 and the Material Project Documents, and otherwise in form and substance satisfactory to the Administrative Agent and the Lenders.

(v)         With respect to ground-mounted Projects, delivery to the Administrative Agent of the Environmental Site Assessments (in form and substance acceptable to the Administrative Agent and the Lenders) with respect to such Project, dated no earlier than 180 days prior to the date of such Borrowing, along with a reliance letter allowing the Administrative Agent to rely on such reports.

(w)         With respect to Large Projects, delivery to the Administrative Agent of the Independent Engineer’s report (in form and substance acceptable to the Administrative Agent and the Lenders) of its satisfactory review of the applicable Project, such review confirming, without limitation, the Initial Project Construction Loan Equity Contribution has been previously paid by the Borrower for the payment of Project Costs related to such Projects, the reasonableness of operating cost, major maintenance assumptions, adequacy of the proposed construction contingency and the expectation that each applicable Project can support the assumptions set forth in the Base Case Model pro forma projections, the useful life estimate for each applicable Project, overall design and technical aspects of each applicable Project, including the adequacy of the construction plan, the equipment and the proposed civil, mechanical and electrical works, confirming the adequacy of the Environmental Site Assessments (including Equator Principles) and any remediation programs necessary for such Project, confirming the adequacy of the applicable EPC Agreement and each applicable project schedule (under the applicable EPC Agreement), the Interconnection Agreements and the other Material Project Documents for such Project and the ability of the counterparties to execute the construction schedule related to such Project in a timely manner and confirming that, upon completion of each applicable Project in accordance with the relevant engineering design documentation and plans, each applicable Project shall be a facility using solar energy to produce electricity and, with respect to rooftop Projects, confirming the sufficiency of the rooftop structure design.

(x)          With respect to Small Projects, delivery to the Administrative Agent of the Independent Engineer’s report (in form and substance acceptable to the Administrative Agent and the Lenders) of its satisfactory review of the applicable Project, such review confirming the reasonableness of operating cost, major maintenance assumptions, adequacy of the proposed construction contingency and the expectation that each applicable Project can support the assumptions set forth in the Base Case Model pro forma projections, confirming each applicable project schedule (under the applicable EPC Agreement), and, with respect to rooftop Projects, confirming the sufficiency of the rooftop structure design.

(y)         Delivery to the Administrative Agent of:

(i)           a solar energy forecast provided by the Solar Resource Consultant as to the adequacy and stability of the solar energy resource of each applicable Project Site, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, together with a reliance letter with respect to the Solar Resource Consultant’s report that shall entitle the Administrative Agent, the Collateral Agent, and the Lenders to rely upon such report as of such Borrowing Date, and shall be in form and substance reasonably satisfactory to the Administrative Agent and the Lenders; and

(ii)          except with respect to rooftop Projects, the Transmission Consultant’s report as to the adequacy of transmission capacity for each applicable Project to deliver all of its expected electrical output (including a curtailment analysis), shall be in form and substance acceptable to the Administrative Agent and the Lenders, together with a reliance letter with respect to the Transmission Consultant’s report that shall entitle the Administrative Agent, the Collateral Agent, and the Lenders to rely upon such report as of such Borrowing Date, and shall be in form and substance reasonably satisfactory to the Administrative Agent and the Lenders.

(z)           The initial Project Construction Loan certificate delivered pursuant to Section 3.2(k) shall confirm that all insurance premium payments due and payable as of the date of such Borrowing have been paid or will be paid from proceeds of the applicable Construction Loan and that the insurance materially complies with the requirements of Section 5.4, Schedule 5.4 and the applicable Material Project Documents. Such insurance shall be in full force and effect and the Administrative Agent shall have received certified copies of all policies evidencing such insurance (or a binder, commitment or certificates signed by the insurer or a broker authorized to bind the insurer), in form and substance satisfactory to Administrative Agent and the Lenders, and a certificate from the Borrower’s insurance broker(s), dated as of the date of such Borrowing and identifying underwriters, type of insurance, insurance limits and policy terms, listing the special provisions required as set forth in Schedule 5.4, describing the insurance obtained, stating that the insurance materially complies with the requirements of Section 5.4, Schedule 5.4 and the applicable Material Project Documents and stating that such insurance is in full force and effect and that all premiums then due thereon have been paid.

(aa)        Delivery to the Administrative Agent of true, correct and complete copies of all Applicable Permits required to own, develop, construct or operate each applicable Project that are identified on Part I of Schedule 4.15, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders.

(bb)       No action, suit, proceeding or investigation shall have been instituted or threatened, nor shall any rule, regulation, order, judgment or decree have been issued or proposed to be issued by any Governmental Authority that, (i) could, if such action, suit, proceeding or investigation were adversely determined, reasonably be expected to have a Material Adverse Effect on any applicable Project or any Loan Party or (ii) solely as a result of the Borrower Party’s construction, ownership, leasing or operation of each applicable Project, the sale of electricity therefrom by the applicable Borrower Party, or the applicable Borrower Party’s entering into of any Operative Document or any transaction contemplated hereby or

thereby, would cause or deem (A) the Administrative Agent or the other Lenders or any Affiliate of any of them to be subject to, or not exempt from, regulation under the FPA, PUHCA 2005 or any financial, organizational or rate regulation as a “public utility” or “electric utility” under applicable state laws and regulations respecting the rates or the financial or organizational regulation of electric utilities, except as set forth in the proviso set forth in Section 4.10(b); or (B) any Borrower Party to be subject to, or not exempt from, the federal access to books and records provisions of PUHCA 2005 or under any applicable state laws and regulations respecting the rates or the financial or organizational regulation of electric utilities except, with respect to an Affiliate of any Borrower Party, any such state laws or regulations that would not result in a Material Adverse Effect.

(cc)       Delivery to the Administrative Agent of evidence that all filing, recordation, subscription and inscription fees and all recording and other similar fees, and all recording, stamp and other taxes and other expenses related to such filings, registrations and recordings necessary for the consummation of the transactions contemplated by this Agreement and the other Loan Documents have been paid in full (to the extent the obligation to make such payment then exists) by or on behalf of the Borrower or are to be paid in full out of the proceeds of the initial Construction Loans being made on such date.

(dd)       On each Initial Project Construction Loan Date, the Borrower shall have paid (or shall simultaneously pay with the proceeds of any Construction Loans being Borrowed on such date) all fees, costs and other expenses and all other amounts then due and payable by the Borrower pursuant to this Agreement (including Section 9.5), each Agent Fee Agreement and each Other Fee Agreement.

(ee)       Delivery to the Administrative Agent of a duly executed copy of the notice to proceed required to be issued under the applicable EPC Agreement or evidence that such notice will be issued upon receipt of the proceeds of the relevant Construction Loan.

(ff)         Delivery by the Borrower to the Administrative Agent of all such documentation and information requested by Administrative Agent and the Lenders that are necessary (including the names and addresses of the Borrower) for Administrative Agent and the Lenders to identify each applicable Holdco and Project Company in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder).

(gg)       With respect to each proposed project, the Administrative Agent and each Lender shall have approved such project, in its discretion, and each of the Administrative Agent and each Lender shall have authorized such project to be a Project hereunder.

(hh)       With respect to each Project approved by Administrative Agent and the Lenders pursuant to Section 3.2(gg), (i) Administrative Agent and the Lenders shall have completed, to their satisfaction, their due diligence review of such Project in all respects, and Borrower shall satisfy any additional conditions precedent requested by the Lenders and Administrative Agent as a result of such diligence; (ii) the Lenders shall have received any credit approvals needed in respect of such Project; (iii) this Agreement shall be amended to include any additional provisions, such provisions to be mutually satisfactory to the Borrower and the Lenders and applicable to a specific Project, required as a result of Lenders’ due diligence with respect to

such specific Project (iv) in no event shall the expected aggregate nameplate capacity of all Small Projects that have been allocated Loans and Commitments under this Agreement exceed 10% of the total expected aggregate nameplate capacity of all Projects that have been allocated Loans and Commitments hereunder; provided, however, that such allowed aggregate nameplate capacity of Small Projects shall be reduced by the applicable percentage of nameplate capacity that is allocated to Projects set forth in clause (v) below with respect to Power Purchaser’s that are not Investment Grade; (v) each Power Purchaser shall be Investment Grade, except for Power Purchaser counterparties to Power Purchase Agreements which are allocated, in the aggregate, less than 10% of the total expected aggregate nameplate capacity of all Projects that have been allocated Loans and Commitments hereunder; and (vi) Borrower shall only present two new project to be considered a project hereunder per calendar month and Borrower shall provide all information related to such proposed project (including all items necessary to satisfy the conditions precedent set forth in this Section 3.2 that are required for completion of Lenders’ credit approval process) at least twenty (20) Business Days prior to the proposed date of Borrowing (unless otherwise waived by the Administrative Agent and the Lenders); provided, however, that once every calendar quarter the Borrower may present one additional project in addition to the two projects per calendar month referred to above.

(ii)          With respect to any Project in respect of which Tax Equity Documents are in full force and effect as of such date, delivery to Administrative Agent of a reliance letter from the preparer of the cost segregation report and appraisal, in form and substance reasonably satisfactory to Administrative Agent, along with such cost segregation report and appraisal, in form and substance reasonably satisfactory to Administrative Agent and the Lenders.

(jj)           Evidence that, upon disbursement of the initial Construction Loan, the amounts on deposit in the Debt Service Reserve Account will be at least equal to the then applicable Debt Service Reserve Requirement.

(kk)         In no event shall the Borrower present any Project that could be allocated Loans and Commitments under Annex 2 in excess of $50,000,000. All Projects shall be commercial and industrial projects and certain utility-scale projects, in each such case, as approved by each Lender in accordance with this Section 3.2.

(ll)           Prior to the Initial Borrowing of Construction Loans hereunder, the parties to this Agreement shall have agreed to add the following exhibits, annexes and schedules to this Agreement, in each such case, in form and substance acceptable to the Administrative Agent, the Lenders and the Borrower: (i) Exhibits E, G, I, J, K, L and M; (ii) Schedules 1.1B; 1.1C; 1.1D; 4.4; 4.13; 4.15; 4.18; 4.19(a),(c) and (e); 4.21; 4.34(a) and (b); 5.4 and (iii) Annexes 2 and 3.

(mm)       For the avoidance of doubt, on or prior to the Initial Borrowing of Construction Loans hereunder, all Loan Documents not executed on the Signing Date, shall be duly executed and delivered by the parties thereto and in form and substance satisfactory to the Borrower, Administrative Agent and the Lenders.

3.3           Conditions Precedent to the Construction Loans. The obligation of the Lenders to make any Construction Loans, including the initial Construction Loan for each Project, is subject to the prior satisfaction of each of the following conditions (unless waived in writing by the

Administrative Agent and the Required Lenders or, solely with respect to the initial Construction Loan for each Project, with the consent of all Lenders):

(a)           Each representation and warranty of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects as of the date of such Borrowing (or, if any representation or warranty is stated to have been made as of a specific date, as of such specific date), except if such representation is already qualified by reference to materiality, Material Adverse Effect, or a similar materiality qualifier, in which case such representation and warranty shall be true and correct without regard to materiality;

(b)           No Default or Event of Default shall have occurred and be continuing or shall occur as a result of the Borrowing of such Construction Loan;

(c)           All Operative Documents in effect on the date of the applicable Construction Loan shall be in full force and effect;

(d)           The Borrower is in compliance with the applicable Construction Budget and Schedule (or if the Borrower is not in compliance with such schedule the Independent Engineer has certified that such applicable Project is reasonably likely to achieve COD for such Project by the Construction Loan Maturity Date for such Project in compliance with the budget aspect of the applicable Construction Budget and Schedule or, if Project Costs in excess of those contemplated by such budget (including the contingency) are required to be expended to achieve such COD by such Construction Loan Maturity Date, the Borrower has certified that sufficient funds are available pursuant to the Construction Loan Commitments allocated to such Project and Equity Commitment to so complete each applicable Project (or certifying that sufficient funds are available pursuant to such Construction Loan Commitments, Equity Commitment plus any other irrevocable funding commitment in form and substance acceptable to the Administrative Agent and the Required Lenders for any shortfall), which in each case shall be satisfactory to the Administrative Agent and the Required Lenders (in consultation with the Independent Engineer));

(e)           Delivery to the Administrative Agent of a Notice of Borrowing in accordance with Section 2.2, which Notice of Borrowing shall include a certification as to certain of the matters set forth in this Section 3.3.

(f)            Delivery to the Administrative Agent, no later than six (6) Business Days prior to the requested borrowing date, of a Construction Requisition (as defined in the Depositary Agreement), dated the date such Construction Loans are to be made and signed by the Borrower, as to the amount and purpose(s) of the requested borrowing of Construction Loans accompanied by appropriate invoices or other evidence of payment (or an obligation to make payment) representing Project Costs for such Project then due and payable to third parties (other than subcontractors) and together with, among other things, a certification that the proceeds of such Construction Loans shall be used solely for Project Costs for such Project set forth in the applicable Construction Budget and Schedule, or otherwise as permitted under this Agreement, and further certifying that sufficient funds are available pursuant to the Construction Loan Commitments (prior to being fully utilized) allocated to such Project, Equity Commitment to complete each applicable Project and achieve Substantial Completion for such Project (or

certifying that sufficient funds are available pursuant to the Construction Loan Commitments allocated to such Project (prior to being fully utilized), Equity Commitment plus any other irrevocable funding commitment in form and substance acceptable to the Administrative Agent and the Required Lenders for any shortfall).

(g)           The Independent Engineer shall have reviewed the Borrower’s certificates and supporting invoices or other evidence of payment (or an obligation to make payment) and other information referred to in Section 3.3(f), above, and shall have delivered an IE Requisition Certificate (as defined in the Depositary Agreement) to the Administrative Agent no later than five (5) Business Days prior to the requested borrowing date approving the Borrower’s certificates and invoices or other evidence of payment.

(h)           Delivery to the Administrative Agent of duly executed acknowledgements of payments and releases of mechanics’ and materialmen’s liens, (i) with respect to any payment to the EPC Contractor and all contractors and materialmen of each applicable Project Company to the extent such payment, either alone or when combined with all payments previously made to such the EPC Contractor or contractor or materialman, exceeds $250,000, in a form reasonably satisfactory to the Administrative Agent, from the EPC Contractor or all contractors and materialmen for all work, services and materials, including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of each applicable Project, and (ii) with respect to any payment made to any subcontractor of any contractor referred to in clause (i), to the extent such payment, either alone or when combined with all payments previously made to such subcontractor, exceeds $250,000.

(i)            All Applicable Permits with respect to the construction and operation of each applicable Project required to have been obtained by the date of such Construction Loans from any Governmental Authority shall have been issued and, except as provided on Schedule 4.15, shall be in full force and effect and no appeal of such Applicable Permits shall be pending and all statutorily prescribed appeal or rehearing periods with respect to the issuance of such Applicable Permits have expired, and such Permits shall not be subject to any unsatisfied conditions that were required to be satisfied on or before the date of such Construction Loan and that would reasonably be expected to allow for material adverse modification or revocation. The Borrower shall be in material compliance with all Applicable Permits. With respect to any of the Applicable Permits not yet required, the Administrative Agent shall have concluded (acting reasonably) that there is no reason to believe that any such Applicable Permits will not be obtained by the time required, all of which shall be reasonably satisfactory to the Administrative Agent (in consultation with the Independent Engineer).

(j)            All of the Operative Documents (including the corresponding consents to collateral assignment in the case of any Additional Project Agreement entered into after the date of this Agreement to the extent consents to collateral assignment are required pursuant to Section 6.10) that were not in effect as of the date of any previous Borrowing and that are required, in connection with the development and construction of such applicable Project, to be executed and delivered on or prior to the date of such Construction Loans shall be in full force and effect and in a form, including any change or amendment thereto made since the respective dates of their execution and delivery, approved by the Required Lenders, unless approval of such

form, change or amendment was not required in accordance with Section 6.8 or 6.10 or otherwise pursuant to this Agreement.

(k)           If at the time of making the Construction Loans such applicable Project shall have been materially damaged by flood, fire or other casualty, the Administrative Agent shall have received insurance proceeds or money or other assurances sufficient in the reasonable judgment of the Administrative Agent (acting at the direction of the Required Lenders), Insurance Consultant and the Independent Engineer to assure restoration and Substantial Completion for such Project on or prior to the Construction Loan Maturity Date for such Project.

(l)            There has not been any uncured default under any Material Project Document, Applicable Permit, certificate, insurance policy or any other similar approval or agreement that would reasonably be expected to have a Material Adverse Effect.

(m)          Except in respect of the initial Construction Loan for such Project and except for Small Projects or with respect to individual Project sites that have an expected nameplate capacity to be 2.0 MW dc or less, receipt by the Administrative Agent of a Mechanics’ Lien Endorsement to the applicable Title Policy after delivery by the Borrower to the Title Company of all deliverables and any other items required by the Title Company to issue such endorsement. Each Mechanics’ Lien Endorsement shall (i) show that since the effective date of such Title Policy (or the effective date of the last such endorsement, if any) there has been no change in the status of the applicable Project Company’s title to the applicable Project Site and no new Lien thereon other than matters constituting Permitted Liens, (ii) state the amount of coverage then existing under the Mechanics’ Lien Endorsement to such Title Policy which shall be not less than the total of all disbursements of the Construction Loan allocated to such Project, including the disbursement which is being made concurrently with the reissuance of such endorsement and (iii) updating the “Date of Coverage” (as defined in the Mechanics’ Lien Endorsement) to the date of such disbursement.

(n)           No Material Adverse Effect, or event, condition or circumstance that would reasonably be expected to constitute a Material Adverse Effect, shall have occurred and be continuing for which adequate provision reasonably satisfactory to the Administrative Agent has not been made.

(o)           No party to any Tax Equity Document is in default of any material obligation thereunder. Borrower shall certify that to the best of its Knowledge each Borrower Party shall be able to meet the conditions precedent to the funding by each Tax Equity Investor under each Tax Equity Document by the deadline for such funding date set forth in each Tax Equity Document, and, in any event, in order to repay the Construction Loans for each applicable Project by the applicable Construction Loan Maturity Date.

3.4           Conditions Precedent to the Issuance of Letters of Credit. The obligation of an Issuing Bank to issue a Letter of Credit is subject to the prior satisfaction of each of the following conditions (unless waived in writing by the Administrative Agent and the applicable Issuing Bank):

(a)           The conditions precedent set forth in Sections 3.1, 3.2 and 3.3 for the applicable Project have been satisfied and the initial Construction Loan has been funded in respect of such Project.

(b)           Each representation and warranty of the Loan Parties set forth in the Loan Documents is true and correct in all material respects as if made on such date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), except if such representation is already qualified by reference to materiality, Material Adverse Effect, or a similar materiality qualifier, in which case such representation and warranty shall be true and correct without regard to materiality.

(c)           No Default or Event of Default has occurred and is continuing or will result from the issuance of the applicable Letter of Credit.

(d)           No Material Adverse Effect, or event conditions or circumstance that would reasonably be expected to constitute a Material Adverse Effect, shall have occurred and be continuing for which adequate provision reasonably satisfactory to the Administrative Agent and the Issuing Bank has not been made.

(e)           The Borrower shall have delivered to the Issuing Bank an LC Issuance Notice and Letter of Credit Application in respect of the Letters of Credit in accordance with Section 2.16(b) at least three (3) Business Days prior to the requested date of issuance of the Letters of Credit.

3.5          Confirmation. Each Borrowing by and on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of such extension of credit that the applicable conditions contained in this Article 3 have been satisfied or waived.

ARTICLE 4.

REPRESENTATIONS AND WARRANTIES

The Borrower, on behalf of itself and each Borrower Party, hereby makes the following representations and warranties to and in favor of the Administrative Agent, the Collateral Agent and the Lenders on the date hereof and on the date of each Borrowing. All of such representations and warranties shall survive the Signing Date and the making of the Loans:

4.1          Existence; Compliance with Laws. Each Loan Party (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification (including, with respect to each Borrower Party, the applicable state in which the Project owned by it is located) and (d) is in compliance with all Legal Requirements except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

4.2           Ownership of Capital Stock. The Capital Stock of each Borrower Party has been duly authorized and validly issued and is fully paid and non-assessable. There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to any Capital Stock of any Borrower Party, except as created by the Loan Documents. Pledgor owns 100% of all issued and outstanding membership interests in Borrower. The entities shown on Annex 4 own the issued and outstanding membership interests of each Holdco as shown on Annex 4. Each Holdco owns 100% of all issued and outstanding membership interests of each Project Company shown on Annex 4 that Holdco is the owner of.

4.3           Power; Authorization; Enforceable Obligations; No Legal Bar.

(a)           Each Loan Party has the power and authority, and the legal right, to make, deliver and perform the Operative Documents to which it is a party and to consummate the transactions contemplated thereby and, in the case of the Borrower, to obtain extensions of credit hereunder. Each Loan Party has taken all necessary organizational action to authorize the execution, delivery and performance of the Operative Documents to which it is a party and to consummate the transactions contemplated thereby and, in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement. Each Operative Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement and each other Operative Agreement constitute legal, valid and binding obligations of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

(b)           The execution, delivery and performance of this Agreement and the other Operative Documents, the borrowings hereunder and the use of the proceeds thereof will not violate any Legal Requirements applicable to any Loan Party or any Contractual Obligation of any Loan Party and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens) on any of their respective properties or revenues pursuant to any Legal Requirement or any such Contractual Obligation.

4.4           Governmental Approvals. Except as set forth in Schedule 4.15, no action, consent or approval of, registration or filing with, Permit from, notice to, or any other action by, any Governmental Authority is or will be required in connection with (a) the due execution, delivery and performance by any Loan Party of the Operative Documents to which it is a party, (b) the development, construction, ownership and operation of each applicable Project as contemplated by the Operative Documents (to the extent required to be obtained by or on behalf of any Loan Party), (c) the consummation of the transactions contemplated by the Operative Documents by the Loan Parties or (d) the grant by the Loan Parties of the Liens granted under the Security Documents or the validity, perfection and enforceability thereof or for the exercise by the Collateral Agent of its rights and remedies thereunder, except, in each case, (i) the filing of UCC financing statements and the filing and recording of each Deed of Trust, (ii) such as have been made or obtained and are in full force and effect, (iii) such as are required by securities, regulatory or applicable law in connection with an exercise of remedies, (iv) as contemplated by

Section 4.15 and (v) in the case of clauses (b) and (c) above, such actions, consents, registrations, filings, notices, actions and approvals where the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.

4.5           ERISA and Labor Matters.

(a)           Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i) each Loan Party and each of their respective ERISA Affiliates is in compliance with the applicable provisions of ERISA and the provisions of the Code relating to ERISA Plans and the regulations and published interpretations thereunder; (ii) no ERISA Event has occurred or is reasonably expected to occur; and (iii) all amounts required by applicable law with respect to, or by the terms of, any retiree welfare benefit arrangement maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate has an obligation to contribute have been accrued in accordance with Accounting Standards Codification Topic 715-60. The present value of all accumulated benefit obligations under each Pension Plan (based on the assumptions used for purposes of Financial Accounting Standards Codification Topic 715-30) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than a material amount the fair market value of the assets of such Pension Plan allocable to such accrued benefits, and the present value of all accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used for purposes of Financial Accounting Standards Codification topic 715-30) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than a material amount the fair market value of the assets of all such underfunded Pension Plans.

(b)           Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (i) all employer and employee contributions required by applicable law or by the terms of any Foreign Benefit Arrangement or Foreign Plan have been made, or, if applicable, accrued in accordance with normal accounting practices; (ii) the accrued benefit obligations of each Foreign Plan (based on those assumptions used to fund such Foreign Plan) with respect to all current and former participants do not exceed the assets of such Foreign Plan; (iii) each Foreign Plan that is required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; and (iv) each such Foreign Benefit Arrangement and Foreign Plan is in compliance (A) with all material provisions of applicable law and all material applicable regulations and published interpretations thereunder with respect to such Foreign Benefit Arrangement or Foreign Plan and (B) with the terms of such plan or arrangement.

(c)           Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against the Pledgor or any Borrower Party pending or, to the Knowledge of any Borrower Party, threatened; (b) hours worked by and payment made to employees of each of the Pledgor or any Borrower Party have not been in violation of the Fair Labor Standards Act or any other applicable Legal Requirement dealing with such matters; and (c) all payments due from the Pledgor or any Borrower Party on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Person.

4.6           Taxes. The Pledgor and each Borrower Party has filed or caused to be filed all Federal, state and other material Tax returns that are required to be filed and has paid all Taxes shown to be due and payable on said returns or on any material assessments made against it or any of its property and all other Taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any amount the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Person); no Tax Lien has been filed (other than Permitted Liens), and to the Knowledge of each Borrower Party, no claim is being asserted, with respect to any such Tax, fee or other charge.

4.7           Business, Debt, Contracts, Etc. No Borrower Party (a) has conducted any business other than the business contemplated by the Operative Documents or in connection with the applicable Project(s), (b) has any outstanding Indebtedness or other material liabilities other than pursuant to the Operative Documents (and any applicable Deferred Development Fee), or (c) is a party to or bound by any material contract other than the Operative Documents to which it is a party.

4.8           Filings. All filings and recordings, re-filings or re-recordings necessary to perfect and maintain the perfection and priority of the interest, title or Liens of the Collateral Agent (for the benefit of the Secured Parties), subject to Permitted Liens that pursuant to applicable law are entitled to a higher priority than the Liens created by the Security Documents, have been made as required by the Loan Documents.

4.9           Investment Company; Holding Company Act; EWG. Neither any Borrower Party nor Pledgor is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940. Neither any Borrower Party nor Pledgor is subject to regulation under any Legal Requirement (other than Regulation X and subject to Section 4.10(c)(iii) below) that limits its ability to incur Indebtedness. On or before the date on which the output of a Project is sold or delivered (including test energy), such Project or Project Company, as applicable, shall be an EWG and/or a QF, and Pledgor is, or upon COD of each such Project will be, a “holding company” under Section 1262(8) of PUHCA 2005 and the FERC’s implementing regulations at 18 C.F.R. § 366 et seq., solely with respect to its ownership of one or more EWGs and/or QFs. Neither any Borrower Party nor Pledgor is or has been determined by the FERC to be subject to, or not exempt from, regulation under the federal access to books and records provisions of PUHCA 2005.

4.10         Governmental Regulation.

(a)           Each of Pledgor and each Borrower Party is in compliance in all material respects with the applicable requirements of the FPA and PUHCA 2005 and all other applicable Legal Requirements with respect to the ownership, operation, control and sale of energy, capacity and ancillary services and environmental attributes from each applicable Project.

(b)           None of the Agents, the Lenders, or any Affiliate of any of them will, solely as a result of the construction, ownership, leasing or operation of any applicable Project by the applicable Borrower Party, the sale of electricity therefrom by each applicable Borrower Party or each applicable Borrower Party’s entering into any Operative Document or any transaction

contemplated hereby or thereby, be subject to, or not exempt from, regulation under the FPA or PUHCA 2005 or rate regulation as an “electrical corporation” under any applicable state rule or regulation; provided, however, that in the event that any Agent or any Lender, upon the exercise of remedies under the Operative Documents or otherwise, becomes the owner or operator of any Project or directs the sale of electricity therefrom, such Agent or Lender may become subject to regulation as a public utility under the FPA and an “electrical corporation” under applicable state rules or regulations, and unless EWG status or another exemption from regulation under PUHCA 2005 is obtained, such Agent or Lender, as the case may be, could become, together with its Affiliates, subject to regulation under the federal access to books and records provisions of PUHCA 2005 and could become subject to applicable state rules or regulations of the operations of each applicable Project and, if any retail sales of electric energy, capacity or ancillary services are made from such applicable Project, financial, organizational or rate regulation as a “public utility” or “electric utility” or similar term under applicable state rules or regulations.

(c)           On and after obtaining the order and approvals required pursuant to Section 5.12(ii), each applicable Project Company shall be (i) subject to regulation as a “public utility” under the FPA; (ii) authorized by FERC to make sales of electric energy, capacity and ancillary services at market-based rates pursuant to Section 205 of the FPA or an exemption under Part 292 of FERC’s regulations; and (iii) as applicable, granted blanket authorization by FERC to issue securities and assume liabilities pursuant to Section 204 of the FPA and all other waivers of regulations and blanket authorizations as are customarily granted by FERC to entities with market-based rate authority.

4.11         Federal Reserve Requirements. No part of the proceeds of any Loans, and no other extensions of credit hereunder, will be used (a) for “buying” or “carrying” any Margin Stock within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect or for the purpose of reducing or retiring any indebtedness which was originally incurred to buy or carry any Margin Stock or (b) for any purpose that violates any regulation of the Board. No more than 25% of the assets of the Pledgor or any Borrower Party consist of Margin Stock. If requested by any Lender or the Administrative Agent, the Borrower will (and will cause each Borrower Party to) furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.

4.12         Litigation. (a) No litigation, action, suit, investigation or proceeding at law or equity by or before any arbitrator or Governmental Authority is pending or, to the Knowledge of any applicable Borrower Party, threatened by or against any Loan Party or against any of their respective properties or revenues (including any Material Project Document or Applicable Permit) with respect to any of the Operative Documents or any of the transactions contemplated hereby or thereby that could, if adversely determined, reasonably be expected to have a Material Adverse Effect.

(b)           There are no condemnation proceedings by or before any Governmental Authority now pending or, to the Knowledge of any Borrower Party, threatened with respect to the Real Property or any applicable Project, or sale of power therefrom or any portion thereof material to the construction, ownership or operation of any applicable Project or sale of power therefrom, unless (i) solely with respect to a condemnation proceeding occurring prior to Final Completion

of a Project, in the reasonable opinion of the Administrative Agent and the Independent Engineer, such condemnation is capable of being remedied within a satisfactory period without affecting Final Completion with respect to such applicable Project in accordance with the Construction Budget and Schedule applicable to such Project and (ii) an adequate reserve, in an amount acceptable to the Administrative Agent and the Independent Engineer, has been established for remedying such condemnation.

4.13         Compliance with Legal Requirements. Except as otherwise disclosed in Schedule 4.13, neither any Borrower Party nor its properties or assets has violated or is in violation of (nor will the continued operation of its material properties and assets as currently conducted violate) any currently applicable Legal Requirements (including any zoning, building, or Environmental Law, ordinance, code or approval or any building permit) or any restriction of record or Site Lease Agreement, or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

4.14         No Default.

No Loan Party is in default under or with respect to any of its Contractual Obligations in any respect that would reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.

4.15         Permits.

(a)           There are no material Permits issued to, or required to be provided by, or required by any Borrower Party under any Governmental Rule, including any Environmental Laws, as each applicable Project is currently designed and contemplated to be developed, constructed, owned, leased and operated that are or will become Applicable Permits other than the Permits described in Schedule 4.15. Each Permit described in Schedule 4.15 is either (i) a Permit in full force and effect and is not the subject of any current material legal proceeding and, if an appeal period is specified by a Governmental Rule, the appeal period has expired and no proceedings are pending seeking material modification or revocation, in the case of those Permits listed in Part I of Schedule 4.15, or (ii) a Permit that has not yet been obtained or provided (or has been obtained or provided but the applicable appeal period has not expired) and has not been required for any applicable Project development activities up to the date of this Agreement and is not required to for the construction of any applicable Project, and which each Borrower Party has no current actual Knowledge indicating that such Permit will not timely be obtained or provided (or applicable appeal period expire) in the ordinary course of operation of each applicable Project in the case of those Permits listed in Part II of Schedule 4.15. Each Borrower Party reasonably believes that any Permit so indicated on Part II of Schedule 4.15 will be timely obtained or provided without any material expense. Each Borrower Party is not in material violation of any Applicable Permit.

(b)           To each Borrower Party’s Knowledge, each Material Project Participant possesses all material Permits, or rights thereto necessary to perform its duties under the Operative Documents to which it is a party, other than those Applicable Permits listed in Part II of

Schedule 4.15, and, to each Borrower Party’s Knowledge, such party is not in material violation of any such Permit.

(c)           No Borrower Party has entered into any stipulations with any Governmental Authority issuing any Applicable Permit(s) which are not expressly set forth in such Permit(s) to develop, construct, own, lease and operate any applicable Project or which have not otherwise been disclosed to the Administrative Agent by such Borrower Party in writing.

4.16        Use of Proceeds. The proceeds of the Loans shall be used solely in accordance with Section 5.7.

4.17        Insurance. All policies of insurance required to be obtained by each Borrower Party under the Operative Documents have been obtained, and are in full force and effect; all premiums due thereon have been paid (or will be paid from proceeds of the initial Construction Loan) and, except with respect to policies that have been replaced with other policies in compliance with this Agreement, no notice from any insurer or its representative as to any cancellation or reduction or other change in coverage has been received.

4.18        Environmental Matters.

(a)           Each Borrower Party has previously delivered to the Agents the Environmental Site Assessments and except as set forth on Schedule 4.18: (i) neither any Borrower Party nor Pledgor is or has in the past been in violation of (or received any notice that it is in violation of) any Environmental Law or Applicable Permit, which violation has not been fully cured and that would reasonably be expected to subject any Secured Party to liability or to result in a liability to either any Borrower Party or Pledgor or their respective properties or assets; (ii) neither any Borrower Party nor Pledgor has (or has received any written notice that it or any third party has) used, Released, generated, manufactured, produced, or stored (or arranged for the disposal of) in, on, under or about any applicable Project Site or the Improvements or any other Real Property owned, operated or leased by such Borrower Party, or transported thereto or therefrom, any Hazardous Substances that would reasonably be expected to subject any applicable Borrower Party, Pledgor or any Secured Party to liability under any Environmental Law; (iii) to the Knowledge of each Borrower Party after reasonable inquiry, there are no species protected under applicable Environmental Laws, historical or cultural artifacts, wetlands or underground tanks (whether operative or temporarily or permanently closed) located on any applicable Project Site or the Improvements or any other Real Property owned, operated or leased by each applicable Borrower Party; (iv) there are no Hazardous Substances used, stored or present at or on any applicable Project Site or the Improvements, except as used or stored or present in the ordinary course of business and in compliance with Environmental Laws; and (v) to the Knowledge of each Borrower Party, there is no condition, circumstance, action, activity or event that would reasonably be expected to form the basis of any violation of Environmental Law by any Borrower Party or liability to any applicable Borrower Party under any Environmental Law, in each case of clauses (i) through (v) above that would reasonably be expected to have a Material Adverse Effect.

(b)           There is no pending or, to the Knowledge of each Borrower Party, threatened Environmental Claim by any Governmental Authority (including the U.S. Environmental

Protection Agency) or any other third party with respect to the presence or Release of Hazardous Substances in, on, from or to any applicable Project Site or the Improvements, or any other Real Property owned, operated or leased by any Borrower Party, or with respect to Environmental Laws or Hazardous Substances, that would reasonably be expected to have a Material Adverse Effect.

(c)           After due inquiry, except as set forth on Schedule 4.18, each Borrower Party does not have Knowledge of any past or existing violations or threatened violations of any Environmental Laws by any person relating in any way to any applicable Project Site or the Improvements or any other Real Property owned, operated or leased by any Borrower Party that would reasonably be expected to have a Material Adverse Effect. As of the Initial Project Construction Loan Date for each Project, the Environmental Site Assessments are the most recent environmental site assessments each Borrower Party has knowledge or possession of with respect to each applicable Project Site or any of the applicable Real Property.

4.19        Title to Properties; Possession Under Leases.

(a)           Each Borrower Party has good title to all its material properties and assets (other than Real Property), except for Permitted Liens. Each Borrower Party has good and marketable fee simple title to or valid leasehold and easement interests in, or other valid right to use, as applicable, all the Real Property set forth on Schedule 4.19(a), in each case in accordance with the applicable lease, easement, right of way, license agreement or other operating right or similar right of use, except for Permitted Liens.

(b)           No landlord Lien has been filed, and, to the Knowledge of each Borrower Party, no claim is being asserted, with respect to any lease payment under any Site Lease Agreements, subject to Permitted Liens. To the Knowledge of each Borrower Party, other than Permitted Liens or except as otherwise specified by the Site Lease Agreements, none of the Real Property for a Project is subject to any lease, sublease, license, easement or other agreement granting to any person any right to the use, occupancy, possession or enjoyment of such Real Property or any portion thereof.

(c)           No Borrower Party has received any written notice of, nor has any Knowledge of, (i) any pending or contemplated condemnation proceeding affecting any Project Site or any sale or disposition thereof in lieu of condemnation (additionally, no Borrower Party has received any written notice of, nor has any Knowledge of, any pending or threatened condemnation proceeding affecting a Project Site or any sale or disposition thereof in lieu of condemnation) or (ii) any existing or threatened change in the zoning classification of any of any part of any Project Site, except as set forth on Schedule 4.19(c).

(d)           The Mortgaged Property for each applicable Large Project has been properly subdivided in accordance with all applicable Legal Requirements or entitled to exception therefrom, and for all purposes such Real Property may be mortgaged and conveyed in accordance with applicable legal requirements.

(e)           With respect to each applicable Large Project, the Mortgaged Property constitutes all of the Real Property owned, leased or otherwise held or used by each Borrower Party in

respect of such applicable Project, or in which each applicable Borrower Party holds a direct or indirect interest, as of the Initial Project Construction Loan Date for such Project. Except for Permitted Liens, the agreements set forth on Schedule 4.19(e) constitute all of the agreements governing the Mortgaged Property for each applicable Project.

4.20         Utilities. All utility services necessary for the construction and operation of each Project for its intended purposes are available at each applicable Project Site or are reasonably expected to be so available as and when required upon commercially reasonable terms or market rates.

4.21         Roads/Feeder Lines.

(a)           Except as set forth on Schedule 4.21, all roads necessary for the construction and full utilization of a Project for its intended purposes under the Material Project Documents applicable to such Project have either been completed or the necessary rights of way therefor have been acquired, except for permits to cross state, county or township roads, which are reasonably expected to be granted as a ministerial matter during the construction of each applicable Project prior to the date such permits are required to be acquired pursuant to any applicable Governmental Authority.

(b)           Except as set forth on Schedule 4.21, all necessary easements, rights of way, agreements and other rights for the construction, interconnection and utilization of the feeder lines of each applicable Project have been acquired.

4.22         Sufficiency of Material Project Documents. The rights granted to each Borrower Party pursuant to the Material Project Documents are sufficient to enable each applicable Project to be located, constructed, operated and routinely maintained as contemplated by the Operative Documents and provide adequate ingress and egress for any reasonable purpose in connection with the construction, operation and routine maintenance of each applicable Project.

4.23         Material Project Documents.

(a)           Each Borrower Party has delivered to the Administrative Agent a complete and correct copy of the Material Project Documents in effect for each applicable Project, including any amendments, supplements or modifications with respect thereto. None of the Material Project Documents to which each applicable Borrower Party or Pledgor is a party has been amended or modified since with respect to (i) the Borrower, the Pledgor and Holdco, the Signing Date and (ii) each Borrower Party, the Initial Project Construction Loan Date related to such Project, except in accordance with this Agreement.

(b)           As of the Signing Date and as of each date upon which this representation is made, each of the Material Project Documents then in effect is in full force and effect and constitutes the legal, valid and binding obligation of each Loan Party party thereto, and, to the Knowledge of each Borrower Party, the other parties thereto. Each Borrower Party is in compliance with all Material Project Documents in effect, and to the Knowledge of each Borrower Party, each other party to a Material Project Document in effect is in compliance with its obligations thereunder and no defaults have occurred and are continuing thereunder, except to

the extent any such non-compliance or default could not reasonably be expected to result in a Material Adverse Effect.

4.24         Disclosure. Except for projections and pro forma financial information, no statement or information contained in this Agreement, any other Loan Document, or any other document, certificate or statement prepared and furnished by any Borrower Party, Pledgor or any Affiliate thereof to the Administrative Agent or the Lenders, or any of them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, contained as of the date such statement, information, document or certificate was so furnished any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not misleading. The projections and pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of each Borrower Party to be reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount. There is no fact known to any Borrower Party, Pledgor or any Affiliate thereof that would reasonably be expected to have a Material Adverse Effect that has not been expressly disclosed herein, in the other Loan Documents or in any other documents, certificates and statements furnished to the Administrative Agent and the Lenders for use in connection with the transactions contemplated hereby and by the other Loan Documents. The Base Case Model is based on reasonable assumptions that are consistent with the provisions of the Material Project Documents.

4.25         Construction Budget; Projection. Each Borrower Party has prepared or provided each applicable Construction Budget and Schedule in good faith and on the basis of reasonable assumptions that are consistent with the provisions of the Material Project Documents applicable to the applicable Project(s). As of the date of this Agreement and as of the date when this representation is made or deemed made, to each Borrower Party’s Knowledge, there are no material Project Costs that are not included in the applicable Construction Budget and Schedule for such Project that have not otherwise been disclosed to the Administrative Agent in writing.

4.26         Intellectual Property. Each Borrower Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted. No material claim has been asserted and is pending by any Person against any Borrower Party challenging or questioning any Borrower Party’s use of any Intellectual Property or the validity or effectiveness of any Intellectual Property used by any Borrower Party, nor does any Borrower Party has Knowledge of any valid basis for any such claim. The use of Intellectual Property by each Borrower Party does not infringe on the rights of any Person in a manner that would reasonably be expected to result in a Material Adverse Effect.

4.27         Land Not in Flood Zone. No Deed of Trust encumbers improved real property relating to a ground-mounted Project that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act has been obtained in accordance with Section 3.2(r).

4.28         Partnerships and Joint Ventures; Separateness.

(a)           No Borrower Party is general partner or a limited partner in any general or limited partnership or a joint venturer in any joint venture.

(b)           No Borrower Party has subsidiaries, except as set forth on Annex 4. No Project Company has any subsidiaries.

(c)           Each Borrower Party maintains separate bank accounts and separate books from the other Borrower Parties and all other Persons. The separate liabilities of each Borrower Party are readily distinguishable from the liabilities of the other Borrower Parties and all other Persons.

(d)           Each Borrower Party conducts its business solely in its own name in a manner not misleading to other Persons as to its identity.

4.29         Material Adverse Effect. The financial statements of each Borrower Party, heretofore delivered to the Administrative Agent with copies for the Lenders, were prepared in accordance with GAAP, as applicable, and fairly present the financial condition and operations of each Borrower Party at such date and, where applicable, the results of its operations for the period then ended (subject, where applicable, to normal year-end audit adjustments). The unaudited pro forma balance sheet of each Borrower Party as of the Signing Date and each Initial Project Construction Loan Date, as applicable (including the notes thereto), copies of which have heretofore been furnished to each Lender, has been prepared giving effect (as if such events had occurred on such date) to (i) the Loans to be made hereunder and the use of proceeds thereof and (ii) the payment of fees and expenses in connection with the foregoing, and such pro forma balance sheet has been prepared based on the best information available to each Borrower Party as of the date of delivery thereof, and presents fairly on a pro forma basis the estimated financial position of each Borrower Party as of the applicable date of deliver, assuming that the events specified in the preceding sentence had actually occurred at such date. Since the respective date of each such statement, there has been no change in the business, Property, condition (financial or otherwise) or results of operations of each Borrower Party that would reasonably be expected to have a Material Adverse Effect.

4.30         Accounts. No Borrower Party has any “deposit account” with a “bank” (within the meaning of Section 9-102 of the UCC) other than (a) the Collateral Accounts established in accordance with this Agreement and the other Loan Documents and (b) the Local Deposit Account that may contain an amount on deposit therein not in excess of $300,000 in the aggregate, to the extent such account is subject to a deposit account control agreement in favor of the Collateral Agent in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent.

4.31         Construction of the Project. To the Knowledge of each Borrower Party, all work done on each applicable Project has been done in a good and workmanlike manner and in accordance with the EPC Agreements and the Interconnection Agreements applicable to such Project, and Prudent Industry Practices, except to the extent that any failure would not reasonably be expected to have a Material Adverse Effect.

4.32         Sanctions and Anti-Corruption Laws.

(a)           No Borrower Party is in violation of any laws relating to terrorism or money laundering, including Executive Order No. 13224 on Terrorist Financing, effective September 23, 2001, and the Patriot Act.

(b)           The use of the proceeds of the Loans by each Borrower Party will not violate the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Comprehensive Iran Sanctions, Accountability and Divestment Act, the Iran Threat Reduction and Syria Human Rights Act, the National Defense Authorization Acts of 2012 and 2013, any regulations administered or enforced by OFAC (31 C.F.R., Subtitle B, Chapter V), or any enabling legislation or executive order relating thereto or in furtherance thereof (collectively, “Sanctions”). No Borrower Party, none of their respective subsidiaries, none of their respective directors, officers or employees, and, to the Knowledge of any Borrower Party, no agent or other person acting on behalf of any Borrower Party or any of their respective subsidiaries is currently on the OFAC SDN List, and no Borrower Party or any of their respective subsidiaries is located, organized or resident in a country or territory that is the subject or the target of Sanctions, including Cuba, Burma (Myanmar), Iran, North Korea, Sudan and Syria (each, a “Sanctioned Country”). For the past 5 years, each Borrower Party and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, any dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.

(c)           No Borrower Party, none of their respective subsidiaries, none of their respective directors, officers, or employees, and, to the Knowledge of any Borrower Party, no agent or other person acting on behalf of any Borrower Party or any of their respective subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) taken any action in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977 or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offense under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption laws (collectively, “Anti-Corruption Laws”); or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit.

(d)           Each Borrower Party has established and implemented processes and procedures designed to ensure that (i) no persons or entities holding any direct or indirect legal or beneficial interest whatsoever in each Borrower Party appear on the OFAC SDN List; (ii) no persons or entities holding any direct or indirect legal or beneficial interest whatsoever in any Borrower Party are included in, owned by, controlled by, acting for or on behalf of, providing assistance, support, sponsorship, or services of any kind to, or otherwise associated with any of the persons or entities referred to or described in the OFAC SDN List; and (iii) no Borrower Party will

conduct business or engage in any transaction with any person or entity in violation of Sanctions or in violation of Anti-Corruption Laws.

4.33         Security Documents. (a) The Security Agreement, each Guaranty and Security Agreement, each Guaranty, Pledge and Security Agreement and the Pledge Agreement are each effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the Pledged Stock described in the Pledge Agreement, Security Agreement and each Guaranty, Pledge and Security Agreement, when stock certificates representing such Pledged Stock are delivered to the Collateral Agent (together with a properly completed and signed stock power or endorsement), the Pledge Agreement, Security Agreement and each applicable Guaranty, Pledge and Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of Pledgor, Borrower and such Holdco, as applicable, in such Pledged Stock and the proceeds thereof, as security for the Secured Obligations (as defined in the Pledge Agreement, Security Agreement and each Guaranty, Pledge and Security Agreement), and in the case of the other Collateral described in the Security Agreement, each Guaranty, Pledge and Security Agreement and each Guaranty and Security Agreement, when financing statements and other filings specified on Schedule 4.33(a) in appropriate form are filed in the offices specified on Schedule 4.33(a), and with respect to other property that can be perfected by control, upon execution of the Depositary Agreement by each of the parties thereto, the Security Agreement, each Guaranty, Pledge and Security Agreement, each Guaranty and Security Agreement and the Pledge Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of each Borrower Party and Pledgor in such Collateral and the proceeds thereof, as security for the Secured Obligations (as defined in the Security Agreement, each Guaranty, Pledge and Security Agreement, each Guaranty and Security Agreement or Pledge Agreement, as applicable), in each case prior and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Permitted Liens that pursuant to applicable law are entitled to a higher priority than the Liens created by the Security Documents).

(b)           Each Deed of Trust is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien on the applicable Mortgaged Property described therein and proceeds thereof, and when such Deed of Trust is filed in the office specified on Schedule 4.33(b), such Deed of Trust shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the applicable Borrower Party in the applicable Mortgaged Property and the proceeds thereof, as security for the Secured Obligations, in each case prior and superior in right to any other Person, except for Permitted Liens that pursuant to applicable law are entitled to a higher priority than the Liens created by the Security Documents.

4.34         Solvency. Each Borrower Party is, and after giving effect to the incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith will be Solvent.

4.35         Sales Tax Exemption; Resale Certificate. Each Construction Budget and Schedule accurately represents each applicable Borrower Party’s estimated anticipated sales and use taxes taxable to such applicable Borrower Party for the construction of each applicable Project. Each

Borrower Party has obtained, or will have obtained when required by and to the extent available under applicable law, all necessary resale certificates or other applicable documentation to secure exemption from all sales and use taxes in all applicable jurisdictions in respect of the applicable Project.

ARTICLE 5.

AFFIRMATIVE COVENANTS OF BORROWER

The Borrower covenants and agrees that, prior to the Final Discharge Date, it shall (and shall cause each Borrower Party to), unless the Required Lenders waive compliance in writing, comply with each of the following:

5.1           Reporting Requirements. The Borrower shall deliver to the Administrative Agent and each Lender:

(a)           as soon as available and in any event within one hundred twenty (120) days after the end of each fiscal year of the Borrower a copy of the audited balance sheet of the Borrower as at the end of such year and the related audited statements of income and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by KPMG or other independent certified public accountants of nationally recognized standing; provided that all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods;

(b)           as soon as available but in any event within sixty (60) days after the end of each of the first three quarterly periods of each fiscal year of the Borrower, (i) the unaudited balance sheet of the Borrower as of the end of such quarter and the related unaudited statements of income and of cash flows for such quarter and the portion of the fiscal year through the end of the year, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments); provided that all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods, and (ii) an unaudited pro forma balance sheet of each Borrower Party (other than the Borrower) certified by a Responsible Officer as being fairly stated in all material respects;

(c)           concurrently with the delivery of the financial statements referred to in Section 5.1(a), a certificate of the independent certified public accountants reporting on such financial statements stating that in making the examination necessary therefor no Knowledge was obtained of any Default or Event of Default pursuant to Article 7, except as specified in such certificate (which certificate shall not be required to be delivered if such accounting firm is not

delivering certificates of such type as a matter of national policy applied consistently to its clients);

(d)           concurrently with the delivery of any financial statements pursuant to Section 5.1(a) or Section 5.1(b), a certificate of a Responsible Officer stating that such Responsible Officer has obtained no Knowledge of any Default or Event of Default except as specified in such certificate or, if any such condition existed or exists, the nature thereof and the corrective actions that the applicable Person has taken or proposes to take with respect thereto;

(e)           promptly upon any Borrower Party acquiring notice or obtaining Knowledge that any Default or Event of Default has occurred, a notice of such event (which should, in accordance with Section 8.5, indicate that such notice is a “Notice of Default”);

(f)           promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice (including to the Independent Engineer) of (i) any material breach or any default under any Material Project Document, (ii) any termination or material amendment of any Material Project Document, (iii) any litigation, arbitration, material events or material notices with respect to any Material Project Document, (iv) any event of force majeure asserted under any Material Project Document which exists for more than five Business Days (and, to the extent reasonably requested by the Administrative Agent and reasonably available to the Borrower, copies of related invoices, statements, supporting documentation, schedules, data or affidavits delivered under any Material Project Document) and (v) any change order under the EPC Agreements;

(g)          promptly upon any Borrower Party (i) acquiring notice or obtaining Knowledge thereof, notice (x) of any dispute (or in the case of a modification of a material Applicable Permit, a material dispute) between the applicable Borrower Party and any Governmental Authority involving the revocation, modification, failure to renew or the like of any Applicable Permit or the imposition of additional material conditions with respect thereto and (y) that any Applicable Permit related to any applicable Project is reasonably expected to be cancelled, suspended, terminated or impaired, except that no such notice shall be required with respect to the expiration, in the ordinary course of business at the stated expiration date, of a Permit that is no longer required for construction or operation and (ii) obtaining any Applicable Permit, a copy of such Applicable Permit;

(h)           promptly upon any Borrower Party acquiring notice or obtaining Knowledge that (i) a materialman’s, mechanic’s or other like Lien in an amount in excess of $100,000 or (ii) multiple Liens as described in clause (i) above in an aggregate amount in excess of $200,000, in each case have been recorded against the applicable Borrower Party or any applicable Project Site, a notice of such recordation describing the reasons for such Lien in reasonable detail, and attaching a copy of any documentation or correspondence relevant to such Lien;

(i)            promptly upon any Borrower Party acquiring notice or obtaining Knowledge of the commencement of proceedings against the Borrower before FERC or any applicable state authority alleging a violation of the FPA or the regulations of FERC or the applicable state authority, or asserting jurisdiction over the applicable Borrower Party under PUHCA 2005

(except as an EWG), a copy of any documentation or correspondence relevant to such proceeding;

(j)            promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of any (i) fact, circumstance, condition or occurrence at, on or arising from the applicable Mortgaged Property or the applicable Improvements that results in material noncompliance with any Environmental Law or any Release of Hazardous Substances on or from each applicable Project Site, the applicable Improvements or any other part of the applicable Mortgaged Property that has resulted in material property damage or has a Material Adverse Effect, or (ii) pending or, to the applicable Borrower Party’s Knowledge, threatened, material Environmental Claim against the Borrower or, to the applicable Borrower Party’s Knowledge, any of its Affiliates, contractors, lessees or any other Persons, arising in connection with its or their occupying or conducting operations on or at each applicable Project, the applicable Real Property or the applicable Improvements, in each case which would reasonably be expected to impose liability on any Secured Party or have a Material Adverse Effect;

(k)           promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of the filing or commencement of, or any written threat or written notice of intention of any Person to file or commence any action, suit or proceeding, whether at law or equity or by or before any Governmental Authority or in arbitration, against the applicable Borrower Party, any Material Project Participant or involving any applicable Project, which involves claims in excess of $500,000 in the aggregate or as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;

(l)            promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of any condemnation, taking by eminent domain or other taking or seizure by a Governmental Authority with respect to a material portion of any applicable Project or any applicable Project Site;

(m)          promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of any casualty, damage or loss to any applicable Project, whether or not insured, through fire, theft, other hazard or casualty, or any act or omission of the applicable Borrower Party, its employees, agents, contractors, consultants or representatives, or of any other Person, if such casualty, damage or loss affects the applicable Borrower Party or any applicable Project in excess of $500,000 for any one such event, or $1,000,000 in the aggregate in any policy period, and the applicable Borrower Party shall keep the Administrative Agent timely apprised of any insurance claim proceedings related to such casualty or loss, including any notice received from any insurance company indicating that it is not obligated to pay any named insured, or that it is withholding any amounts that the applicable Borrower Party is claiming are due and payable under any insurance policy maintained by the applicable Borrower Party;

(n)           promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of any cancellation or material change in the terms, coverages or amounts of any insurance described in Section 5.4 in respect of a Project;

(o)           promptly, but in no event later than five (5) Business Days after the execution and delivery to any Borrower Party thereof, a copy of each Additional Project Agreement and any material amendment, supplement or other modification to any such agreement that is received by the Borrower after the Signing Date and the applicable Initial Project Construction Loan Date for a Project;

(p)           promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of any other development specific to the applicable Borrower Party or any applicable Project that has had, or would reasonably be expected to have, a Material Adverse Effect;

(q)          promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of any forced outage with respect to all or substantially all of any applicable Project for more than 72 consecutive hours;

(r)           promptly, such additional financial and other information with respect to each Borrower Party or each applicable Project as is reasonably requested by the Administrative Agent or any Lender;

(s)           promptly following receipt thereof, copies of any documents described in Section 101(k) and/or Section 101(l) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the relevant Loan Party or ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, such Loan Party or the ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and the applicable Borrower Party shall provide copies of such documents and notices promptly after receipt thereof; and

(t)            promptly upon any Borrower Party acquiring notice or obtaining Knowledge thereof, notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to result in liability of any Loan Party or any ERISA Affiliates in excess of $500,000;

(u)           promptly, but in no event later than five (5) days after the receipt thereof by each Borrower Party, copies of any agreement referenced in Section 5.1(o) that is obtained or entered into by the applicable Borrower Party after the Signing Date and the applicable Initial Project Construction Loan Date for a Project and any material amendment, supplement or other modification to any such agreement that is received by the Borrower after the Signing Date and the applicable Initial Project Construction Loan Date for a Project; and

(v)           Each notice pursuant to Section 5.1(e)-(n), (p), (q), (t) and (v) shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action each Borrower Party proposes to take with respect thereto.

5.2           Maintenance of Existence, Properties; Etc. (a) The Borrower shall (and shall cause each Borrower Party to) (i) preserve, renew and keep in full force and effect its organizational existence in the United States, (ii) take all reasonable action to maintain all rights,

privileges and franchises necessary or desirable in the normal conduct of its business, except, in each case, as otherwise permitted by Section 6.4 and except, in the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

(b)          The Borrower shall (and shall cause each Borrower Party to) maintain good, valid, marketable (subject to the terms of the Operative Documents) and insurable title in (i) all applicable Mortgaged Property that constitutes the applicable Real Property, subject only to Permitted Liens and (ii) all of its other properties and assets (that are individually or in the aggregate material), subject only to Permitted Liens, in each case other than those properties and assets disposed of in accordance with this Agreement or any other Operative Document.

(c)           The Borrower shall (and shall cause each Borrower Party to) keep all material property useful and necessary in its business in good working order and condition in accordance with Prudent Industry Practice, ordinary wear and tear excepted.

5.3           Compliance with Legal Requirements; Etc.

(a)           The Borrower shall (and shall cause each Borrower Party to) materially comply with all applicable Legal Requirements and exercise diligent good faith efforts to make such alterations to each applicable Project and the Mortgaged Property as may be required for such compliance.

(b)           The Borrower shall (and shall cause each Borrower Party to) obtain all Applicable Permits as promptly as possible, have when required all Applicable Permits necessary for the development, construction, ownership, leasing, maintenance and operation of each applicable Project under applicable Legal Requirements and comply in all material respects with all Applicable Permits. The Borrower shall (and shall cause each Borrower Party to) promptly upon receipt or publication furnish a copy (certified by a Responsible Officer of each Borrower Party) of each such Applicable Permit to the Administrative Agent.

(c)           The Borrower shall (and shall cause each Borrower Party to) promptly upon receipt or publication furnish a true, correct, and complete copy of each material amendment, supplement or modification to any such Applicable Permit to the Administrative Agent and shall promptly furnish copies to the Administrative Agent of all material documents furnished to the applicable Borrower Party by any Governmental Authority or furnished to any Governmental Authority by the applicable Borrower Party.

(d)           The Borrower shall (and shall cause each Borrower Party to) comply in all material respects with, and ensure compliance in all material respects by all tenants and subtenants, if any, with all applicable Environmental Laws and all applicable or relevant provisions of the Equator Principles, and obtain and comply in all material respects with and maintain, and ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all applicable Permits required by applicable Environmental Laws or applicable provisions of the Equator Principles.

(e)           The Borrower shall (and shall cause each Borrower Party to) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other

actions required under Environmental Laws and promptly comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws or the Equator Principles.

5.4           Insurance; Events of Loss.

(a)           Without cost to the Lenders, the Borrower shall (and shall cause each Borrower Party to) (i) maintain or cause to be maintained on its behalf in effect at all times the types of insurance required pursuant to Schedule 5.4, in the amounts and on the terms and conditions specified therein and (ii) use all commercially reasonable efforts to cause the Material Project Participants and each other party to a Material Project Document to procure at its own expense and maintain in full force and effect, at all times on and after the applicable Initial Project Construction Loan Date the insurance required to be procured and maintained by such Person under the relevant Material Project Documents.

(b)          If any Borrower Party fails to obtain or maintain, or to cause each Material Project Participant or other party to a Material Project Document to obtain or maintain, the full insurance coverage required by this Section 5.4, the Administrative Agent, upon ten (10) Business Days’ prior notice (unless the aforementioned insurance would lapse within such period or has already lapsed, in which event notice shall not be required) to the applicable Borrower Party of any such failure, may (but shall not be obligated to) obtain the required policies of insurance and pay the premiums on the same. All amounts so advanced by the Administrative Agent shall become an additional obligation of the applicable Borrower Party to the Administrative Agent, and the applicable Borrower Party shall forthwith pay such amounts to the Administrative Agent, together with interest from the date of payment by the Administrative Agent at the Default Rate.

(c)           No later than March 31st of each calendar year, each Borrower Party shall deliver to the Administrative Agent a certificate of a Responsible Officer, certifying that (i) the insurance requirements of this Section 5.4 (including Schedule 5.4) have been implemented and are being complied with, (ii) the applicable Borrower Party has paid all insurance premiums then due and payable and (iii) the applicable Borrower Party is in compliance with its insurance policies.

(d)           The Administrative Agent shall be entitled at its option to participate in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of any Borrower Party, in each such case, in excess of $1,000,000, and the Borrower shall (and shall cause the applicable Borrower Party to), within five (5) Business Days after the Administrative Agent’s request, reimburse the Administrative Agent for all reasonable out-of-pocket expenses (including reasonable attorneys’ and experts’ fees) incurred by the Administrative Agent in connection with such participation. The Borrower shall (and shall cause the applicable Borrower Party to) not make any compromise, adjustment or settlement in connection with any such claim in excess of $1,000,000 without the approval of the Administrative Agent (acting on behalf of the Required Lenders).

(e)           All Loss Proceeds of any Event of Loss received by any Borrower Party or the Administrative Agent in respect of all or any part of each applicable Project shall be deposited in the Loss Proceeds Account and the amounts on deposit in the Loss Proceeds Account will be applied as described in the Depositary Agreement.

(f)           No provision of this Section 5.4 or any other provision of any Loan Document shall impose on the Administrative Agent, the Collateral Agent or the Lenders any duty or obligation to verify the existence or adequacy of the insurance coverage maintained by each Borrower Party (nor shall any action taken, or not taken, by the Administrative Agent, the Collateral Agent or the Lenders to verify the existence or adequacy of the insurance coverage maintained by any Borrower Party affect the obligations of the applicable Borrower Party pursuant to this Section 5.4), nor shall the Administrative Agent, the Collateral Agent or the Lenders be responsible for any representations or warranties made by or on behalf of any Borrower Party to any insurance company or underwriter.

5.5           Taxes; Assessments and Utility Charges. The Borrower shall (and shall cause each Borrower Party to) pay, or cause to be paid, as and when due and prior to delinquency, all Taxes, assessments and governmental charges of any kind that may at any time be lawfully assessed or levied against or with respect to any Borrower Party or any applicable Project (including all assessments and charges lawfully made by any Governmental Authority for public improvements that may be secured by a Lien on such applicable Project), and all utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of such applicable Project; provided, however, that any Borrower Party may contest or cause to be contested in good faith any such Taxes, assessments and other charges and, in such event, may permit the Taxes, assessments or other charges so contested to remain unpaid during any period, including appeals, when such Borrower Party is in good faith contesting or causing to be contested the same by appropriate proceedings, so long as (a) reserves reasonably satisfactory to the Administrative Agent have been established on such Borrower Party’s books in an amount sufficient to pay any such Taxes, assessments or other charges, accrued interest thereon and potential penalties or other costs relating thereto, or other provision for the payment thereof reasonably satisfactory to the Administrative Agent shall have been made, (b) enforcement of the contested Tax, assessment or other charge is effectively stayed for the entire duration of such contest and (c) any Tax, assessment or other charge determined to be due, together with any interest or penalties thereon, is immediately paid after resolution of such contest.

5.6          Properties, Books and Records. (a) The Borrower shall (and shall cause each Borrower Party to) (i) keep proper books of record and account in conformity with GAAP and all Legal Requirements of all dealings and transactions in relation to its business and activities and (ii) permit representatives of the Administrative Agent (including the Independent Consultants) or any Lender to visit and inspect, at the applicable Borrower Party’s expense, each Borrower Party’s financial records, each Project (including the related Real Property) and any other properties of any Borrower Party at any reasonable time and as often as may reasonably be desired and to make extracts from and copies of such financial records, and permit any Person designated by the Administrative Agent or any Lender upon reasonable prior notice to the applicable Borrower Party to discuss the affairs, finances and condition of the applicable Borrower Party with the officers thereof and independent accountants therefor (subject to reasonable requirements of confidentiality, safety requirements and other requirements imposed

by law or by contract); provided that so long as no Default or Event of Default shall have occurred and be continuing, any such visit in excess of two such visits in any calendar year by any Lender shall be at the expense of such Lender. The Independent Engineer shall have the right to visit and inspect each Project and the books, records and documents of each Borrower Party from time to time, to witness the construction, installation, testing, start up, commissioning and operation of each Project; provided that the Independent Engineer will comply with all reasonable safety requirements of such Project or such Project Site whether imposed by contract or Governmental Rule and will maintain reasonable and customary liability insurance. The Borrower shall (and shall cause each Borrower Party to) at all times maintain and preserve a complete set of the Plans and Specifications relating to the design, engineering, construction and equipping of each Project at such Project Site and available for inspection by the Independent Engineer, the Administrative Agent and any Lender.

(b)           The Borrower shall (and shall cause each Borrower Party to) maintain adequate project, financial and accounting records with respect to each applicable Borrower Party and each applicable Project.

5.7           Use of Proceeds.

(a)            

 (i)            The Borrower shall (and shall cause each Borrower Party to) use the proceeds of each Construction Loan solely to pay a portion of the Project Costs specified in the related borrowing certificate and related certificates delivered by each Borrower Party in connection with such Construction Loan. Proceeds of the Construction Loans shall be applied by the applicable Borrower Party in the order and manner set forth in the Depositary Agreement.

 (ii)           The Borrower shall use the DSR Letters of Credit solely to support the Borrower’s obligations with respect to the Debt Service Reserve Account. The Borrower shall use the Project Letters of Credit solely to support the applicable Borrower Party’s obligations under the applicable Material Project Documents.

(b)           Unless otherwise applied by the Administrative Agent pursuant to this Agreement, the Borrower shall (and shall cause each Borrower Party to) deposit all Project Revenues and all Loss Proceeds in accordance with the Depositary Agreement, for application solely for the purposes and in the order and manner provided in the Depositary Agreement.

5.8           Payment of Obligations. The Borrower shall (and shall cause each Borrower Party to) duly and punctually pay and discharge its obligations in respect of its Indebtedness permitted by Section 6.1, subject to the terms and conditions of this Agreement and the other Loan Documents (including Section 7.4 hereof).

5.9           Construction and Operating Reports.

(a)           With respect to each Project, as soon as available and in any event within ten (10) Business Days after the end of each calendar month, commencing with the first full month following the applicable Initial Project Construction Loan Date for each Project until COD for

such Project, the Borrower shall (and shall cause each Borrower Party to) deliver to the Administrative Agent and each of the Lenders a certificate of a Responsible Officer of the applicable Borrower Party setting forth in reasonable detail (with respect to such Project): (a) the estimated date on which Substantial Completion shall be achieved, (b) if the Substantial Completion Date is not anticipated to occur on or before the scheduled Substantial Completion Date under the EPC Agreement for such Project, the reasons therefor, (c) the status of construction of such Project (and a description of any material defects or deficiencies with respect thereto or any material discrepancies with the applicable Plans and Specifications) and compliance of the EPC Contractor with the applicable Project Schedule (as such term is defined in the applicable EPC Agreement) or project schedule, as applicable, (d) the conformance to the applicable Construction Budget and Schedule of the amount of applicable Project Costs incurred to date and during the most recent monthly period, and in the event of a material variance, the reasons therefor, (e) an update on the process of obtaining any Applicable Permits that the applicable Borrower Party has not yet obtained; and (f) confirmation of material ongoing compliance with applicable Environmental Laws, including material compliance with permits required under applicable Environmental Laws and material ongoing compliance with applicable or relevant provisions of the Equator Principles, with descriptions of any instances of material failure to so comply.

(b)           For each Project, as soon as available and in any event within thirty (30) days after the end of each calendar month, commencing with the first full month following the applicable Initial Project Construction Loan Date for each Project until COD of such Project, the Borrower shall (and shall cause each Borrower Party to) cause the Independent Engineer to deliver to the Administrative Agent and each of the Lenders a report covering each of the matters referenced in Exhibit M.

(c)           Following the occurrence of COD for each Project, as soon as practicable but no later than forty-five (45) days after the close of each quarterly period of its fiscal year, the Borrower shall deliver to the Administrative Agent a summary operating report, in each case substantially in the form of Exhibit L to this Agreement, which shall include a month and year-to-date numerical and narrative assessment of (A) each applicable Project’s electrical production, availability, capacity, delivery and curtailment, if any, (B) the solar resource data with respect to such Project, (C) such Project’s availability and unscheduled maintenance performed with respect to the Power Blocks and any other portion of such Project, (D) variance analysis of the Project’s compliance with each budgeted category as compared to then applicable Annual Operating Budget, (E) casualty losses that required notice pursuant to Section 5.1(m) in any fiscal year of the Borrower, (F) replacement of equipment not contemplated by then current Annual Operating Budget of value in excess of $500,000, (G) material disputes with contractors, materialmen, suppliers or others and any related material claims against any Borrower Party with a value in excess of $500,000, (H) any claims either individually or in the aggregate equal to or greater than $500,000 for warranty under any EPC Agreement made or outstanding during such quarter and (I) confirmation of material ongoing compliance with applicable Environmental Laws, including material compliance with permits required under applicable Environmental Laws and material ongoing compliance with applicable or relevant provisions of the Equator Principles, with descriptions of any instances of material failure to so comply.

(d)           The Borrower shall (and shall cause each Borrower Party to) provide to the Administrative Agent promptly upon reasonable request such information concerning each applicable Project at such times as the Administrative Agent shall reasonably require, including such reports and information as are reasonably required by the Independent Consultants.

5.10         Material Project Documents. The Borrower shall (and shall cause each Borrower Party to) (i) perform and observe all of its material covenants and material obligations contained in each of the Material Project Documents, (ii) take all reasonable and necessary action to prevent the termination or cancellation of any Material Project Documents to which the applicable Borrower Party or Pledgor is a party in accordance with the terms of such Material Project Documents or otherwise (except for the expiration of any Material Project Document in accordance with its terms and not as a result of a breach or default thereunder) and (iii) enforce against the relevant Material Project Participant each material covenant or obligation of such Material Project Document to which it is a party in accordance with its terms, including enforcing the rights and remedies of the applicable Borrower Party under the Material Project Documents to maximize the amount of liquidated damages available to the applicable Borrower Party under the Material Project Documents.

5.11         Completion; Acceptance Tests. The Borrower shall (and shall cause each Borrower Party to), subject to the provisions of this Section 5.11, obtain the prior written consent of the Independent Engineer and the Administrative Agent prior to accepting or confirming that each applicable Project has achieved Substantial Completion, and/or Final Completion under the EPC Agreements (as such term is defined therein). Except with respect to Small Projects, prior to accepting or confirming any final acceptance and/or final completion test procedures under the EPC Agreements or the applicable Power Purchase Agreement, the Borrower shall (and shall cause each Borrower Party to) allow the Independent Engineer and the Administrative Agent, at their option, to witness such test procedures and shall provide to the Independent Engineer and the Administrative Agent copies of such test procedures and allow the Independent Engineer and Administrative Agent reasonably sufficient time to review and consult with each applicable Borrower Party in respect thereof and the Borrower shall (and shall cause each Borrower Party to) take into consideration in good faith the Independent Engineer’s and Administrative Agent’s comments in respect thereof; provided that the Independent Engineer and the Administrative Agent will comply with all reasonable safety requirements of each applicable Project or each applicable Project Site whether imposed by contract or Governmental Rule and that no such review and consultation shall be required in respect of test procedures already prescribed by the applicable EPC Agreement or the applicable Power Purchase Agreement. Prior to accepting or confirming that any Project has satisfied any of the final acceptance or final completion tests or met any of the performance guarantees or performance criteria pertaining to such applicable Project, the Borrower shall (and shall cause each Borrower Party to) provide to the Independent Engineer and the Administrative Agent sufficient opportunity to review the written items pertaining thereto and allow the Independent Engineer and Administrative Agent reasonably sufficient time to review and consult with each applicable Borrower Party in respect thereof and the Borrower shall (and shall cause each Borrower Party to) take into consideration in good faith the Independent Engineer’s and Administrative Agent’s comments in respect thereof. Notwithstanding the foregoing, and so long as each Borrower Party has provided the Independent Engineer and the Administrative Agent with the information needed for the reviews, consultations and consents required by this Section 5.11 in a manner allowing for a reasonable

time period for such Person to review the same, the Borrower shall (and shall cause each Borrower Party to) comply with all time periods required with respect to the relevant acceptance procedures under the applicable EPC Agreement and the Power Purchase Agreement irrespective of whether the Independent Engineer and the Administrative Agent has provided their consent or consultation hereunder and shall not be required to withhold any approval, acceptance or confirmation of Substantial Completion or Final Completion under the applicable EPC Agreement, test procedures or any final acceptance or final completion tests.

5.12         EWG Status; Market-Based Rate Authority. Each Project Company (a) is an EWG and (b) except to the extent the Project Company is exempt pursuant to 18 C.F.R. § 292.601 (2005) or other law or regulation, the Borrower shall cause each Project Company to take or cause to be taken all necessary or appropriate actions to, at least sixty (60) days prior to the initial generation, delivery or sale of electricity from each applicable Project, or earlier to the extent required by an applicable Governmental Rule and by no later than COD of each applicable Project, apply for an order under Section 205 of the FPA authorizing the applicable Project Company to sell electric energy, capacity and ancillary services at wholesale at market-based rates, with all blanket authorizations and waivers of regulation typically granted to entities with market-based rate authority, including blanket authorization for the issuance of securities and assumption of liabilities and the notice period established by FERC with respect to such blanket authorization for the issuance of securities and assumption of liabilities shall have expired pursuant to Section 204 of the FPA. Once the applicable Project Company obtains the status, authorizations and approvals set forth in clauses (a) and (b) above, the applicable Project Company shall take or cause to be taken all necessary or appropriate actions to maintain such status, authorizations and approvals.

5.13         [Intentionally omitted].

5.14         Power Purchase Arrangement. The Borrower shall (and shall cause each Borrower Party to) direct the Power Purchasers to effect all payments due to each applicable Borrower Party from time to time under each Power Purchase Agreement directly by wire transfer (or other commercially accepted means) to the applicable Construction Account for such Project.

5.15         Sanctions and Anti-Corruption Laws. If any Borrower Party obtains actual Knowledge or receives any written notice that the applicable Borrower Party, any Affiliate, subsidiary or any Person or entity holding any legal or beneficial interest whatsoever therein (whether directly or indirectly) is named on the OFAC SDN List, is under investigation for a possible violation of Sanctions or for a possible violation of Anti-Corruption Laws, the applicable Borrower Party shall promptly (a) give written notice to the Administrative Agent of such occurrence, and (b) comply with all applicable laws with respect to such occurrence (regardless of whether the party included on the OFAC SDN List is located within the jurisdiction of the United States of America), including Sanctions and Anti-Corruption Laws, and the Borrower hereby authorizes and consents to (and will cause each applicable Borrower Party to authorize and consent to) any Agent or Lender taking any and all steps such Person deems necessary, in its reasonable discretion, to comply with all Sanctions and Anti-Corruption Laws (including the “freezing” and/or “blocking” of assets and reporting such action to OFAC).

5.16         Operation of Each Applicable Project.

Following COD of each Project, the Borrower shall (and shall cause each Borrower Party to) operate and maintain each applicable Project, or cause the same to be operated and maintained, in good operating condition consistent in all material respects with (i) Prudent Industry Practices, (ii) all Applicable Permits, (iii) Legal Requirements, and (iv) all applicable requirements of the Operative Documents (including the warranties provided for thereunder), and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to operate and maintain each applicable Project in such condition.

5.17         Final Completion. The Borrower shall (and shall cause each Borrower Party to) use commercially reasonable efforts to cause Final Completion under the EPC Agreement for each Project to occur no later than the corresponding date required in the applicable EPC Agreement. The Borrower shall (and shall cause each Borrower Party to) prepare and deliver to the Administrative Agent and the Independent Engineer, at least five (5) Business Days prior to COD for each Project, a reasonably detailed construction status report describing the milestones remaining to be completed by applicable EPC Contractor, the timing of such milestone completion as compared to the schedule in the applicable EPC Agreement and the amount of Project Costs in respect of such Project estimated to be incurred under the Material Project Documents (each report for each Project, a “Construction Status Report”). The Administrative Agent and the Independent Engineer shall be entitled to reasonably verify and, if necessary, reasonably correct and add to such Construction Status Report in a manner reasonably acceptable to Administrative Agent and the Independent Engineer.

5.18         [Intentionally omitted]

5.19         Separateness Provisions.

(a)           The Borrower shall (and shall cause each Borrower Party to) conduct its business solely in its own name in a manner not misleading to other Persons as to its identity. Without limiting the generality of the foregoing, all oral and written communications of each Borrower Party (if any), including letters, invoices, purchase orders, contracts, statements, and applications shall be made solely in the name of the applicable Borrower Party.

(b)           The Borrower shall (and shall cause each Borrower Party to) maintain entity records and books of account separate from those of any other entity which is an Affiliate of any Borrower Party and shall not commingle its funds or assets with those of any other entity which is an Affiliate of any Borrower Party.

(c)           The Borrower shall (and shall cause each Borrower Party to) provide that its board of directors or other analogous governing body will hold all appropriate meetings to authorize and approve the applicable Borrower Party’s actions, which meetings will be separate from those of other entities.

5.20         Further Assurances.

(a)           The Borrower shall, and shall cause the other Loan Parties to, promptly upon request by the Administrative Agent, correct any material defect or manifest error that may be

discovered in any Loan Document or in the execution, acknowledgement, filing or recordation thereof.

(b)           The Borrower shall, and shall cause the other Borrower Parties and the Pledgor to, promptly upon request by the Administrative Agent, execute, acknowledge, deliver, record, re-record, file, re-file, register, re-register, or take any and all further acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments as the Administrative Agent may reasonably require from time to time in order to (i) carry out the purposes of the Loan Documents, (ii) subject any Collateral to the Liens now or hereafter intended to be covered by any of the Security Documents to the fullest extent permitted by applicable Legal Requirements, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which such Loan Party is or is to be a party.

5.21         Additional Collateral.

(a)           With respect to any property acquired after the Signing Date and the applicable Initial Project Construction Loan Date for each Project by each Borrower Party (other than any property described in paragraph (b) below) as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Collateral Agent such amendments to the Security Documents as the Administrative Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property, subject to Permitted Liens and (ii) take all actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such property, including the filing of UCC financing statements in such jurisdictions as may be required by the applicable Security Document or by law or as may be requested by the Collateral Agent or the Administrative Agent, except, as to the priority of such Liens, for Permitted Liens that, pursuant to applicable law, are entitled to a higher priority than the Lien of the Collateral Agent.

(b)           Except for Small Projects, if any Borrower Party shall at any time acquire any real property or leasehold or other interest in real property not covered by the applicable Deed of Trust, promptly upon such acquisition, the Borrower shall (and shall cause each Borrower Party to) execute, deliver and record a supplement to the applicable Deed of Trust, reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent, subjecting such real property or leasehold or other interests to the lien and security interest created by such Deed of Trust.

(c)           The Borrower shall (and shall cause each Borrower Party to) use its commercially reasonable efforts to cause each other party to each Additional Project Agreement to execute and deliver to the Administrative Agent, concurrently with the execution of such Additional Project Agreement, a consent to collateral assignment in form and substance reasonably satisfactory to the Administrative Agent; provided, however, that with respect to Small Projects, Consents shall

only be required if (i) such Additional Project Document does not expressly allow such contract to be collaterally assigned to lenders and (ii) the result of the Lenders due diligence with respect to such Additional Project Documents requires a Consent to be delivered.

5.22         Construction Contracts. For each Project, as of the earlier to occur of (i) COD for such Project and (ii) the Construction Loan Maturity Date for such Project, the Borrower shall (and shall cause each Borrower Party to) have paid and discharged or caused to be paid or discharged all material liabilities and obligations for payments of amounts then due to each applicable Material Project Participant with respect to the completion of the applicable Project under the relevant Material Project Documents, other than amounts being contested in good faith and by appropriate proceedings.

5.23         COD. The Borrower shall (and shall cause each Borrower Party to) use commercially reasonable efforts to achieve COD for each Project on or before the Date Certain for such Project.

5.24         Equity Commitment. Each Borrower Party shall cause the Equity Investor to fund its Equity Commitment as and to the extent required under the Equity Contribution Agreement. Each Borrower Party shall apply all proceeds of the Equity Contributions in accordance with the Equity Contribution Agreement.

5.25         Consultants. The Borrower shall (and shall cause each Borrower Party to) provide such documents and information to the Independent Engineer, the Insurance Consultant and the Lenders as they may reasonably request and consider necessary in order to deliver annually to the Administrative Agent a report on the status of each applicable Project or compliance with applicable insurance requirements, as the case may be.

5.26         [Intentionally omitted].

5.27         [Intentionally omitted].

5.28         Loss Proceeds. All Loss Proceeds shall be applied as provided in this Section 5.28 and the Depositary Agreement. All Loss Proceeds shall be paid by the relevant insurers, reinsurers and Governmental Authorities, as applicable, directly to the Collateral Agent, for the benefit of the Secured Parties, as loss payee and, if paid to any Borrower Party such Loss Proceeds shall be received in trust for the benefit of Collateral Agent, on behalf of the Secured Parties, segregated from other funds of the Borrower Parties and shall be promptly paid over to the Collateral Agent, for the benefit of the Secured Parties, in the same form as received (with any necessary endorsement), for deposit into the Loss Proceeds Account. The Collateral Agent shall apply all such Loss Proceeds in accordance with the provisions of this Section 5.28.

(a)           Upon the occurrence of any Casualty Event with respect to which Loss Proceeds are payable in respect of a single loss in an amount not in excess of $2,000,000, Borrower shall apply, or cause to be applied, such Loss Proceeds to the payment of the costs of repair or restoration of the portion of the Project lost or damaged or replacement of equipment for the Project lost or damaged, and disbursement of such funds by Collateral Agent shall be made in accordance with the Depositary Agreement.

(b)           Upon the occurrence of any Casualty Event with respect to which Loss Proceeds are payable in respect of a single loss in an amount in excess of $2,000,000, disbursement of funds to be applied to the payment of the costs of repair or restoration of the portion of the Project lost or damaged or replacement of equipment for the Project lost or damaged in accordance with the Depositary Agreement shall be permitted if the conditions set forth in the Depositary Agreement with respect to such disbursement of funds has been satisfied.

(c)           All Loss Proceeds not otherwise applied in accordance with Section 5.28(a) or Section 5.28(b), including, without limitation, due to the absence of required approval by Administrative Agent or the Required Lenders (in consultation with the Independent Engineer), as applicable, shall be applied by Collateral Agent to the prepayment of Loans in accordance with Section 2.8(a).

ARTICLE 6.

NEGATIVE COVENANTS OF BORROWER

The Borrower covenants and agrees that, prior to the Final Discharge Date, it shall (and shall cause each Borrower Party to), unless the Required Lenders waive compliance in writing, not do any of the following:

6.1           Indebtedness. The Borrower shall (and shall cause each Borrower Party to) not directly or indirectly create, incur, assume, suffer to exist or otherwise be or become liable with respect to any Indebtedness except for Permitted Indebtedness.

6.2           Liens. The Borrower shall (and shall cause each Borrower Party to) not create, incur, assume or suffer to exist (a) any Lien on any of its Property (including any Collateral) except for Permitted Liens or (b) any Lien on its Capital Stock, except the Lien granted under the Security Documents.

6.3           Investments. The Borrower shall (and shall cause each Borrower Party to) not make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any other assets constituting a business unit of, or make any other investment in, any Person (all of the foregoing, “Investments”), except investments in Permitted Investments.

6.4           Prohibition of Fundamental Changes; Sale of Assets, Fiscal Year, Etc.

(a)           The Borrower shall (and shall cause each Borrower Party to) not change its legal form, merge into or consolidate with, or acquire all or any substantial part of the assets or any class of stock of (or other equity interest in), any other Person and shall not liquidate or dissolve and shall not modify its organizational documents in any manner adverse to the Agents or the Lenders.

(b)           The Borrower shall (and shall cause each Borrower Party to) not convey, sell, lease, pledge, transfer or otherwise dispose of, in one transaction or a series of transactions, any assets of the Borrower except (i) pursuant to the Loan Documents, (ii) the disposition of obsolete, worn out or replaced personal property not used or useful in the development or

operation of each applicable Project, (iii) the disposition of any funds on deposit in the Distribution Account in accordance with the Depositary Agreement, (iv) sales, leases or transfers of assets as expressly contemplated by the Material Project Documents, (v) the liquidation, sale or use of cash and Permitted Investments, (vi) the granting of easements or other interests in the Real Property related to the Project to other Persons so long as such grant is in the ordinary course of business, not substantial in amount and does not or would not reasonably be expected to materially detract from the value or use of the affected property or to interfere in any material respect with the Project Company’s ability to construct or operate the Project or sell or distribute power therefrom, or (vii) in connection with the sale or disposition of a Project, the proceeds of which are expected to be sufficient to satisfy all outstanding Obligations with respect to such Project as of the date of such sale or disposition, subject to the limits set forth in Section 2.9.

(c)           The Borrower shall (and shall cause each Borrower Party to) not purchase or acquire any assets other than: (i) the purchase of assets required for the development, construction, completion, operation and maintenance of each applicable Project in accordance with the Material Project Documents and as contemplated by the applicable Construction Budget and Schedule, (ii) the purchase of assets required in connection with any restoration, repair or rebuilding of each applicable Project in accordance with Section 5.4(e), or (iii) the purchase of assets necessary to prevent or mitigate an emergency situation.

(d)           The Borrower shall (and shall cause each Borrower Party to) not change its name, principal place of business, its fiscal year, its method of determining fiscal quarters or its federal employer identification number.

6.5           Nature of Business. The Borrower shall (and shall cause each Borrower Party to) not enter into any activities other than the ownership, development, construction, operation, maintenance and financing of each applicable Project and any activities incidental to the foregoing.

6.6           Transactions With Affiliates. The Borrower shall (and shall cause each Borrower Party to) not enter into any transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate unless such transaction is (a) (i) otherwise permitted under this Agreement, (ii) in the ordinary course of business of the applicable Borrower Party, (iii) upon fair and reasonable terms no less favorable to the Borrower than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate and (iv) in which expenses (if any) are reasonably equally allocated among the Affiliate parties thereto, or (b) an obligation under any Material Project Document as in existence on the applicable Initial Project Construction Loan Date for each Project.

6.7           No Distributions. The Borrower shall (and shall cause each Borrower Party to) not directly or indirectly, (a) make or declare any payment or distribution (in cash, property or obligation) to any of its Affiliates (including any distributions contemplated under any Borrower Party’s limited liability company operating agreement and any payments in respect of management (or other) fees to any of Pledgor or its Affiliates not expressly provided for by the O&M Agreements or the Asset Management Agreement or as permitted upon satisfaction of the Distribution Conditions in accordance with the Depositary Agreement and (b) make any payment

of principal or interest in respect of any subordinated indebtedness (including Permitted Affiliate Subordinated Indebtedness) (each payment described in clauses (a) and (b) being hereinafter referred to as a “Restricted Payment”).

6.8           Material Project Documents. The Borrower shall (and shall cause each Borrower Party to) not (i) cancel or terminate any Material Project Document to which it is a party or consent to or accept any cancellation or termination of any such Material Project Document, (ii) sell, assign (other than pursuant to the Security Documents) or otherwise dispose of (by operation of law or otherwise) any part of its interest in any Material Project Document to which it is a party or consent to any assignment by the other party thereto, (iii) waive any material default under, or material breach of, any Material Project Document to which it is a party or waive, fail to enforce, forgive, compromise, settle, adjust or release any material right, interest or entitlement, howsoever arising, under, or in respect of any such Material Project Document or in any way vary, or consent or agree to the variation of, any material provision of such Material Project Document or of the performance of any material covenant or obligation by any other Person or consent to any assignment by any other Person under any such Material Project Document, (iv) petition, request or take any other legal or administrative action that seeks, or may be expected, to materially impair any Borrower Party’s rights under any Material Project Document to which it is a party or seeks to amend, modify or supplement any such Material Project Document in any material respect, (v) amend, supplement or modify in any material respect any Material Project Document (in each case as in effect when originally delivered to and accepted by the Administrative Agent) to which it is a party or (vi) enter into any new agreement or instrument replacing or supplementing any Material Project Document; in each case of clauses (i) through (vi) above without first obtaining, in the case of the Power Purchase Agreements and the Tax Equity Documents, the prior written approval of all Lenders, and in the case of each other Material Project Document, the prior written approval of the Required Lenders. For the avoidance of doubt, change orders under the EPC Agreements shall be governed exclusively by Section 6.9. Upon the execution of any Tax Equity Document with respect to a Project and upon the request of the Borrower, the Lenders will use commercially reasonable efforts to enter into an agreement with the Tax Equity Investor containing the terms set forth on Exhibit F.

6.9           Budget; Change Orders. (a) The Borrower shall (and shall cause each Borrower Party to) not amend or modify any Construction Budget and Schedule to reallocate any portion of any line item of such Construction Budget and Schedule, or agree to any change order under the EPC Agreements (except as contemplated in the applicable Construction Budget and Schedule as a separate line item) without the prior consent of the Required Lenders (in consultation with the Independent Engineer) except to (i) apply cost-savings from any line of such Construction Budget and Schedule (which cost-savings have been confirmed by the Independent Engineer) to the contingency line item of such Construction Budget and Schedule or (ii) implement changes that do not violate Section 6.9(b) (and the Borrower shall (and shall cause each Borrower Party to) deliver to the Administrative Agent copies of all amendments to each Construction Budget and Schedule and change orders effected without the consent of the Required Lenders pursuant to this paragraph (a)).

(b)           Notwithstanding anything to the contrary in Section 6.9(a) or any other provisions of this Agreement, the Borrower shall (and shall cause each Borrower Party to) not agree to any change order otherwise permitted under Section 6.9(a) that represents a change in (i) to the

extent such change is individually or, in conjunction with other changes, in the aggregate material, the design of any applicable Project, (ii) “Guaranteed Capacity,” “Guaranteed Substantial Completion Date or the “Long-stop Date” or similar defined terms (each as defined in the EPC Agreements), (iii) Substantial Completion or the mechanical completion deadline for such Project where the Tax Equity Investor is expected to make a funding, (iv) any liquidated damages payable under the EPC Agreements, (v) any performance guarantees set forth in the EPC Agreements, (vi) the warranty obligations set forth in the EPC Agreements, in each case without the consent of the Required Lenders (in consultation with the Independent Engineer), (vii) cost increases beyond 100% of the Construction Budget and Schedule for each Project, (viii) the construction schedule of any applicable Project that would delay COD for such Project beyond the Construction Loan Maturity Date applicable to such Project or the required commercial operation or COD date under the Power Purchase Agreement applicable to such Project, (ix) any performance guarantees or other warranties under the MSAs or the O&M Agreements, as applicable (x) any reduction in any liquidated damages set forth in the Material Project Documents, or (xi) a failure to comply with applicable Governmental Rules.

6.10         Additional Project Agreements. The Borrower shall (and shall cause each Borrower Party to) not enter into any Additional Project Agreement without first (a) delivering to the Administrative Agent, in no event later than ten (10) Business Days before the anticipated execution date of such Additional Project Agreement, a final draft thereof and (b) obtaining the prior written approval of the Required Lenders.

6.11         Swap Agreements. The Borrower shall (and shall cause each Borrower Party to) not enter into any Swap Agreement.

6.12         ERISA. The Borrower shall (and shall cause each Borrower Party to) not engage in or suffer any ERISA Event that would subject any Borrower Party to any tax, penalty or other liabilities in an amount that would reasonably be expected to have a Material Adverse Effect.

6.13         Subsidiaries. The Borrower shall (and shall cause each Borrower Party to) not create, form or acquire any subsidiary or enter into any partnership or joint venture, except, with respect to each Borrower Party, as set forth on Annex 4.

6.14         Accounts. The Borrower shall (and shall cause each Borrower Party to) not have any “deposit accounts” with a “bank” (within the meaning of Section 9-102 of the UCC) other than (a) the Collateral Accounts, as applicable, established in accordance with this Agreement and the other Loan Documents and (b) the Local Deposit Account which may contain an amount on deposit therein not in excess of $300,000 in the aggregate, to the extent such account is subject to a deposit account control agreement in favor of the Collateral Agent in form and substance satisfactory to the Administrative Agent and the Collateral Agent.

6.15         Capital Expenditures. The Borrower shall (and shall cause each Borrower Party to) not make any capital expenditures, except for Permitted Capex.

6.16         Lease Transactions. The Borrower shall (and shall cause each Borrower Party to) not enter into any transaction for the lease of any of its assets, whether operating leases, capital leases or otherwise, other than the Site Lease Agreements.

6.17         Hazardous Substances. The Borrower shall (and shall cause each Borrower Party to) not use or Release any Hazardous Substances in violation of any Environmental Laws or Applicable Permits or in a manner that could subject the Secured Parties to material liability or would reasonably be expected to result in a Material Adverse Effect.

6.18         Regulations. The Borrower shall (and shall cause each Borrower Party to) not directly or indirectly apply any part of the proceeds of any Loan or other extensions of credit hereunder or other revenues to the purchasing or carrying of any Margin Stock or take any other action that might result in a violation of any regulation of the Board.

6.19         Prepayment of Permitted Affiliate Subordinated Indebtedness. The Borrower shall (and shall cause each Borrower Party to) not make, or agree to offer to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Permitted Affiliate Subordinated Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Permitted Affiliate Subordinated Indebtedness, in each case except as permitted pursuant to Section 6.7.

6.20         Modification of Additional Documents. The Borrower shall (and shall cause each Borrower Party to) not amend or modify, or permit the amendment or modification of, any provision of any Permitted Affiliate Subordinated Indebtedness or any agreement relating thereto.

6.21         Fiscal Year. The Borrower shall (and shall cause each Borrower Party to) not permit the fiscal year of any Borrower Party to end on a day other than December 31 or change any Borrower Party’s method of determining fiscal quarters.

6.22         Small Projects and Power Purchasers. In no event shall the expected aggregate nameplate capacity of all Small Projects that have been allocated Loans and Commitments under this Agreement exceed 10% of the total expected aggregate nameplate capacity of all Projects that have been allocated Loans and Commitments hereunder as of such date; provided, however, that such allowed aggregate nameplate capacity of Small Projects shall be reduced by the applicable percentage of nameplate capacity that is allocated to Projects set forth in the following sentence with respect to Power Purchaser’s that are not Investment Grade. In no event shall any Power Purchaser cease to be Investment Grade, except for Power Purchasers’ counterparty to Power Purchase Agreements which are allocated, in the aggregate, 10% or less of the total expected aggregate nameplate capacity of all Projects that have been allocated Loans and Commitments hereunder.

6.23         Sanctions and Anti-Corruption Laws. The Borrower will not (and will not permit any Borrower Party to) directly or knowingly use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person or entity (x) to fund or facilitate any activities of or business with any Person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (y) to fund or facilitate any activities of or business in any Sanctioned Country or (z) in any other manner that

will result in a violation by any Person (including any person participating in the transaction, whether as lender or otherwise) of Sanctions or in violation of any Anti-Corruption Laws.

ARTICLE 7.

EVENTS OF DEFAULT; REMEDIES

The occurrence prior to the Final Discharge Date of any of the following events, described in Sections 7.1 through 7.18 inclusive, shall constitute an event of default (individually, an “Event of Default,” and collectively, the “Events of Default”) hereunder:

7.1           Failure to Make Payments. (a) (i) Any Borrower Party shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or (ii) any Borrower Party shall fail to pay any interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within five (5) Business Days after any such interest or other amount becomes due in accordance with the terms hereof.

7.2           Misrepresentations. Any representation or warranty made or deemed made by any Borrower Party herein or in any other Loan Document, any amendment or modification thereof or waiver thereto or that is contained in any certificate, document or financial or other statement furnished by it or at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made and, if such misrepresentation is susceptible of cure, (a) the adverse effect of the misrepresentation is not remedied within thirty (30) days of each applicable Borrower Party receiving notice or knowledge thereof or (b) as remedied, would reasonably be expected to have a Material Adverse Effect.

7.3           Breach of Terms of This Agreement, Other Loan Documents.

(a)           Any Borrower Party or Pledgor shall default in the observance or performance of any agreement contained in Sections 5.1(e), 5.2(a), 5.4(a) or (b), 5.7, or Article 6 (other than as provided in Section 7.3(d)).

(b)           The Equity Investor shall default in the observance or performance of any agreement contained in the Equity Contribution Agreement (giving effect to any cure period provided therein); provided, that the timely observation, performance or cure of the Equity Investor’s obligations by the Equity Contributor Guarantor shall be deemed an observance or performance, as the case may be, by the Equity Investor.

(c)           The ECCA Parent Guarantor shall (subject to any applicable cure period under the ECCA Parent Guaranty) default in the observance or performance of any agreement contained in the ECCA Parent Guaranty (giving effect to any cure period provided therein).

(d)           Any Borrower Party shall default in the observance or performance of any agreement contained in Section 6.2 as a result of non-consensual Permitted Lien failing or ceasing to qualify as a Permitted Lien hereunder and such default shall continue unremedied for a period of fifteen (15) days.

(e)           Any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided elsewhere in this Article 7), and such default shall continue unremedied for a period of thirty (30) days after notice to each applicable Borrower Party from the Administrative Agent or the Required Lenders; provided, that if such default cannot be cured within such thirty (30) day time period but is susceptible to cure within ninety (90) days, if such Loan Party, as applicable, commences action reasonably designed to cure such default within such thirty (30) day time period and diligently pursues such cure, then such Loan Party, as applicable, shall have an additional time period not to exceed sixty (60) days to cure such default.

7.4           Cross Default. Any Loan Party shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee obligation, but excluding the Loans) on the due date with respect thereto (after giving effect to available cure periods); or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other material agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee obligation) to become payable; provided, that a default, event or condition described in clause (i), (ii) or (iii) above shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) above shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate $1,000,000.

7.5           Bankruptcy; Insolvency. Subject to items (i) through (iii) below, (a) Any Loan Party or any of the Material Project Participants (the “Subject Persons”) shall commence any case, proceeding or other action (i) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it if bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (b) there shall be commenced against any Subject Persons any case, proceeding or other action of a nature referred to in clause (a) above that (i) results in the entry of an order for relief or any such adjudication or appointment or (ii) remains undismissed or undischarged for a period of sixty (60) days; or (c) there shall be commenced against any Subject Persons any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (d) any Subject Persons shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (a), (b), or (c) above; or (e) any Subject Persons shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they

become due; or (f) any Subject Person shall make a general assignment for the benefit of its creditors; provided, however, that such Event of Default with respect to such Subject Person (except for any Loan Party, the counterparties to the Tax Equity Documents or the Power Purchasers) shall not be deemed to have occurred if (i) such Subject Person has been replaced within sixty (60) days of the occurrence of a Default under this Section 7.5 by any other Person reasonably acceptable to the Required Lenders, (ii) the Material Project Document to which such Subject Person is a party has expired or terminated in accordance with this Agreement (except for the Power Purchase Agreements, Tax Equity Documents, the Interconnection Agreements and any Site Lease Agreement) or been replaced within sixty (60) days of the occurrence of a Default under this Section 7.5 by a replacement Material Project Document in form and substance reasonably acceptable to the Required Lenders, or (iii) the Subject Person is a Material Project Participant (other than the Power Purchasers or counterparties to the Tax Equity Documents) and the applicable event could not reasonably be expected to have a Material Adverse Effect on any Borrower Party or any applicable Project.

7.6           ERISA Events. (a) an ERISA Event shall have occurred, (b) a trustee shall be appointed by a United States district court to administer any Pension Plan, (c) the PBGC shall institute proceedings to terminate any Pension Plan(s), (d) any Loan Party or any of their respective ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner; or (e) any other event or condition shall occur or exist with respect to an ERISA Plan, a Foreign Plan or a Foreign Benefit Arrangement; and in each case in clauses (a) through (e) above, such event or condition, together with all other such events or conditions, if any, could, in the sole judgment of the Required Lenders, reasonably be expected to result in a Material Adverse Effect.

7.7           Judgments. One or more judgments or decrees shall be entered against any Loan Party involving in the aggregate a liability (which liability is not paid or is not covered by available insurance as acknowledged in writing by the provider of such insurance or as certified to the Administrative Agent by the Insurance Consultant) of $1,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof.

7.8           Security. (a) Any of the Loan Documents shall cease, for any reason, to be in full force and effect (other than as expressly permitted by this Agreement), any Loan Party or any Affiliate thereof shall so assert or (b) any security interest in the Collateral purported to be created by any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected security interest having the priority required by this Agreement or the relevant Security Document in the securities, assets or properties covered thereby shall be invalidated or otherwise cease to be legal, valid and binding obligations of the parties thereto, enforceable in accordance with their terms.