Second Amendment to Credit Agreement (Warehouse Facility), dated as of May 27, 2021, by and among GSRP Warehouse I LLC, as borrower, MUFG Bank, Ltd., as administrative agent, MUFG Union Bank, N.A. as collateral agent and the other lenders party thereto

EX-10.11 4 d366853dex1011.htm EX-10.11 EX-10.11

Exhibit 10.11

Execution Version

SECOND AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO DEPOSITARY AGREEMENT

This SECOND AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO DEPOSITARY AGREEMENT (this “Agreement”), dated as of May 27, 2021, by and among GSRP WAREHOUSE I LLC, a Delaware limited liability company (the “Borrower”), each lender party to the Credit Agreement (collectively, the “Lenders” and individually, a “Lender”), each issuing bank party to the Credit Agreement (in such capacities, collectively the “Issuing Banks” and each an “Issuing Bank”), MUFG BANK, LTD., as administrative agent (in such capacity, together with its successors and assigns, the “Administrative Agent”), and MUFG UNION BANK N.A., as collateral agent (in such capacity, together with its successors and assigns, the “Collateral Agent”) and depositary bank (in such capacity, together with its successors and assigns, the “Depositary Bank”).

PRELIMINARY STATEMENTS:

Reference is made to (i) that certain Credit Agreement, dated as of February 23, 2021, as amended as of May 13, 2021 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among the Borrower, the Lenders, the Issuing Banks, the Administrative Agent, the Collateral Agent and the Depositary Bank, and (ii) that certain Depositary Agreement, dated as of February 23, 2021 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Depositary Agreement”), among the Borrower, the Administrative Agent, the Collateral Agent and the Depositary Bank.

B.	The Borrower has requested that the Credit Agreement and the Depositary Agreement be amended in the manner set forth herein.

C.	The Lenders, constituting all Lenders under the Credit Agreement, the Issuing Banks, the Administrative Agent, the Collateral Agent and the Depositary Bank are willing to agree to this Agreement on the terms and subject to the conditions set forth herein.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

Section 1. Defined Terms. Capitalized terms defined in the Credit Agreement and the Depositary Agreement, as amended hereby, and used (but not otherwise defined) herein are used herein as so defined therein.

Section 2. Amendments to Credit Agreement and Depositary Agreement. Subject to Section 3 hereof, as of the Effective Date:

Section 2.01 Amendments to Credit Agreement.

(a) The definition of Permitted Tax Equity Arrangement in Section 1.01 of the Credit Agreement is hereby amended by inserting the words shown below in bold italics:

“Permitted Tax Equity Arrangement” means, with respect to any Project, a tax equity arrangement through a “partnership flip,” “sale leaseback,” “inverted lease” or other structure to be funded pursuant to the applicable Tax Equity Documents, in each case, with a Tax Equity Investor that has long-term unsecured senior debt obligations rated at least BBB by S&P and at least Baa2 by Moody’s (determined at the time of the Initial Project Funding Date for such Project) or otherwise reasonably acceptable to the Required Lenders, the proceeds of which will be used to repay all or a portion of the Loans made in respect of the Investment Grade Revenues and Non-Investment Grade Revenues to be generated by such Project, which Permitted Tax Equity Arrangement shall not require Borrower or any Subsidiary of the Borrower to issue any parent company guarantees for the benefit of any Tax Equity Investor, in each case; provided that, notwithstanding the foregoing, such Tax Equity Investor (i) shall be deemed to satisfy the above ratings requirement if such Tax Equity Investor is, or is an Affiliate of, any Person identified on Schedule 1.01(H), and (ii) shall not be required to satisfy the above ratings requirement if the Sponsor has delivered a Sponsor Equity Commitment in respect of such Project.

(b) The definition of Project Sale in Section 1.01 of the Credit Agreement is hereby amended by inserting the words shown below in bold italics:

“Project Sale” means the Disposition of all or any portion of the Equity Interests owned, directly or indirectly, by the Borrower in any Subsidiary of the Borrower, or the sale of all or substantially all of the assets of any such Subsidiary (excluding (a) any such Disposition in connection with a Permitted Tax Equity Arrangement and (b) any such Disposition to the Borrower or any wholly-owned Subsidiary of the Borrower); provided, however, that any restructuring transaction or series of restructuring transactions involving a Disposition of all or any portion of the Equity Interests owned, directly or indirectly, by the Borrower in any Subsidiary of the Borrower pursuant to transaction documentation acceptable to the Required Lenders that does not, following the consummation of such transactions, result in a change to the Borrower’s ownership interest on a fully diluted basis of the aggregate voting and economic interests in such Subsidiary shall not constitute a “Project Sale”.

“(e) (i) any sale or issuance of any Equity Interests in a Subsidiary of the Borrower to the Borrower or any other Subsidiary of the Borrower and (ii) any sale or transfer of any Subsidiary of the Borrower that no longer has any direct or indirect interest in any Project Company and does not have any tangible assets other than amounts comprised of Equity Contributions; ”

(d) Section 7.06 of the Credit Agreement is hereby amended to (i) delete the word “and” at the end of clause (d) thereof, (ii) replace the period at the end of clause (e) thereof with “; and” and (iii) add a new clause (f) to the end thereof, to read as follows:

“(f) the Borrower may make, or authorize any Subsidiary to make, Restricted Payments, at any time, with the proceeds of (i) any Equity Contribution used to fund all or

any portion of the consideration paid to any Subsidiary by another Subsidiary in respect of a Project Acquisition, and (ii) any capital contribution or other payment by a Tax Equity Investor with respect to a Project in excess of all amounts (if any) required to be prepaid in respect of such Project pursuant to Section 2.04(b)(ii), in each case, so long as no Event of Default shall have occurred and be continuing at such time.”

(e) Section 14 of Schedule 1.01(E) of the Credit Agreement is hereby amended by inserting the words shown below in bold italics:

Tax Equity Documents: With respect to any Project for which a Project Company or any direct or indirect Subsidiary of the Borrower that is a parent of such Project Company is subject to a Tax Equity Document, (i) the Tax Equity Investor (or a parent company thereof guaranteeing such Tax Equity Investor’s obligations) under each such Tax Equity Document is (A) rated BBB by S&P or Fitch, or Baa2 by Moody s, or better, or (B) is, or is an Affiliate of, any Person identified on Schedule 1.01(H) to the Agreement, (ii) if required by the terms of the Tax Equity Documents, the Sponsor has provided a customary guaranty or indemnity for the benefit of such Tax Equity Investor on terms and conditions that are no less favorable to such Tax Equity Investor than market terms and conditions (taken as a whole), (iii) the terms and conditions of such Tax Equity Documents are no less favorable to the Subsidiaries of the Borrower that are parties thereto than market terms and conditions (taken as a whole) and (iv) such Project Company or other Subsidiary, as applicable, is reasonably expected to meet all conditions precedent to the obligations of such Tax Equity Investor to make its final contribution by the outside date of the capital contribution commitment of the Tax Equity Investor under the equity capital contribution agreement, membership interest purchase agreement or equivalent Tax Equity Document.

(f) The Credit Agreement is hereby supplemented to add Schedule 1.01(H) (Specified Tax Equity Investors) thereto in the form attached to this Agreement as Annex A.

Section 2.02 Amendments to Depositary Agreement.

(a) Section 3.1 of the Depositary Agreement is hereby amended by adding the following sentence to the conclusion of clause (c) thereof:

“Notwithstanding anything herein to the contrary, the Borrower may, at any time, authorize the Depositary Bank to withdraw and transfer from the Revenue Account to the Person or Persons set forth in a Withdrawal Certificate delivered to the Depositary Bank at least two (2) Business Days prior thereto, amounts for the payment of Restricted Payments pursuant to Section 7.06(f) of the Credit Agreement, so long as no Event of Default shall have occurred and be continuing as of the date of such withdrawal and transfer.”

(b) Appendix A (Form of Withdrawal Certificate) of the Depositary Agreement is hereby amended by adding the following clause (k) to Part 1 thereof:

“(k) [As and when applicable.] In accordance with last sentence of Section 3.1(c) of the Depositary Agreement, we request that $ be withdrawn from the Revenue Account and transferred to the Person or Persons specified in greater detail in Part A of the attached Schedule I for the payment of any Restricted Payment pursuant to Section 7.06(f) of the Credit Agreement, and Borrower hereby certifies that no Event of Default has occurred and is continuing.”

Section 3. Effective Date. This Agreement shall become effective the date on which the Administrative Agent has received duly executed counterparts of this Agreement from each of the parties hereto, which shall correspond with the date first written above (the “Effective Date”).

Section 4. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, the Borrower hereby represents and warrants that:

(a) Each representation and warranty of the Borrower under the Financing Documents is true and correct in all material respects as if made on the date hereof, unless such representation or warranty expressly relates solely to an earlier date, in which case it was true and correct in all material respects as of such earlier date;

(b) the Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement, this Agreement has been duly executed and delivered by the Borrower, and this Agreement is the legal, valid and binding obligation of the Borrower, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar laws affecting the enforcement of creditors’ rights generally and by principles of equity;

(d) the execution, delivery and performance by the Borrower of this Agreement (a) have been duly authorized by all necessary organizational action on the part of the Borrower; and (b) do not and will not (i) contravene the terms of any of the Borrower’s Organization Documents; (ii) conflict with or result in any breach or contravention of (A) any Contractual Obligation to which the Borrower is a party or to which the properties of the Borrower or any of its Subsidiaries are subject, or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its property is subject, except, with respect to clause (b)(ii), to the extent such conflict, breach or contravention could not reasonably be expected to have a Material Adverse Effect; (iii) result in, or require, the creation of any Lien upon any of the material properties or assets of the Borrower (other than any Liens created under any of the Collateral Documents and other Permitted Liens); or (iv) violate, in any material respect, any Law applicable to the Borrower or any of its Subsidiaries; and

(e) no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Borrower of this Agreement, except for (i) those that have already been obtained or made, and (ii) those which, if not obtained or made, would not reasonably be expected to have a Material Adverse Effect.

Section 5. Costs and Expenses. Without limiting the obligations of the Borrower under the Credit Agreement, each party hereto agrees that all reasonable out-of-pocket expenses incurred by the Secured Parties (including the reasonable fees, charges and disbursements of counsel and consultants) in connection with the preparation, execution, delivery and administration, modification and amendment of this Agreement and the other instruments and documents to be delivered hereunder or in connection herewith (including the reasonable fees, charges and disbursements of one counsel for the Administrative Agent), are expenses that the Borrower is required to pay or reimburse pursuant to Section 10.05(a) of the Credit Agreement.

Section 6. Reference to and Effect on the Relevant Financing Documents.

(a) On and after the effectiveness of this Agreement on the Effective Date, (i) each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this Agreement, and (ii) each reference in the Depositary Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Depositary Agreement shall mean and be a reference to the Depositary Agreement as amended by this Agreement.

(b) Each of the Credit Agreement and Depositary Agreement as specifically amended by this Agreement is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. This Agreement shall be a “Financing Document” for purposes of the definition thereof in the Credit Agreement.

(c) Except as specifically provided herein, the execution, delivery and effectiveness of this Agreement on the Effective Date shall not operate as a waiver of any right, power or remedy of any Lender under any of the Financing Documents, nor constitute a waiver of any provision of any of the Financing Documents.

Section 7. Severability. If any provision of this Agreement or the other Financing Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Financing Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 7, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.

Section 8. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.

Section 9. Governing Law; Jurisdiction; Etc. THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT

OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

Section 10. Submission to Jurisdiction. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ANY AGENT, ANY LENDER, ANY ISSUING BANK, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT, ANY LENDER OR ANY ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

Section 11. Waiver of Venue. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN SECTION 10. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

Section 12. Service of Process. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.03 OF THE CREDIT AGREEMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

Section 13. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR

INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 14. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Section 15. Direction to the Collateral Agent and Depositary Bank. By its submission of an executed counterpart hereto, the Administrative Agent hereby directs the Collateral Agent and the Depositary Bank to execute this Agreement.

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


GSRP WAREHOUSE I LLC, as the Borrower

By: Goldman Sachs Renewable Power Operating Company LLC, its sole member

By: Goldman Sachs Asset Management, L.P., its investment manager

By:		/s/ Jon Yoder
Name:		Jon Yoder
Title:		Authorized Person