HomeMy WebLinkAboutAgenda Report - November 18, 2015 C-10TM
CITY OF LODI
COUNCIL COMMUNICATION
AGENDA ITEM
Cio
AGENDA TITLE: Adopt Resolution Approving Collateral Assignment of Power Purchase Agreement
to Permit Financing of Astoria 2 Solar Project by EFS Renewables Holdings, LLC
and Approving Related Amendments to Existing Power Purchase Agreement to
Effectuate Such Financing as Contained in a Consent and Agreement; a Non -
Disturbance and Attornment Agreement; and an Intercreditor and Subordination
Agreement
MEETING DATE: November 18, 2015
PREPARED BY: Electric Utility Director
RECOMMENDED ACTION: Adopt a resolution approving a collateral assignment of the Power
Purchase Agreement to permit financing of the Astoria 2 Solar
Project by EFS Renewables Holdings, LLC and approving
related amendments to the existing Power Purchase Agreement to effectuate such financing as
contained in a Consent and Agreement; a Non -Disturbance and Attornment Agreement; and an
Intercreditor and Subordination Agreement.
BACKGROUND INFORMATION: On June 18, 2014, the Lodi City Council approved a Power
Purchase Agreement (PPA) with RE Astoria 2 LLC, a wholly owned
subsidiary of Recurrent Energy, for 10 MW of solar energy and
capacity associated with the Astoria 2 Solar Project (Project) in Kern County. The environmental
attributes to be generated as part of the Project will assist the City of Lodi (Lodi) with meeting its
Renewables Portfolio Standard obligations.
In addition to RE Astoria 2 LLC (Seller) and Lodi, other parties to the PPA include the Southern California
Public Power Authority (SCPPA), Power and Water Resources Pooling Authority (PWRPA) and the cities
of Corona, Moreno Valley, and Rancho Cucamonga. Lodi and these other parties are collectively referred
to as the Buyers under the PPA.
Seller and its proposed investors are requesting approval from all Buyers, including Lodi, to make a
number of amendments to the PPA to accommodate financing of the Project. The proposed amendments
and financing will be achieved through multiple agreements including a Consent and Agreement, Non -
Disturbance and Attornment Agreement, and an Intercreditor and Subordination Agreement, attached as
Exhibits A, B and C, respectively.
While various terms, definitions and recitals were amended and/or clarified, listed below is a summary of
the key amendments to the PPA in the Proposed Consent and Agreement:
• The definition of Facility Debt has been modified to include tax equity to accommodate the
proposed financing structure.
• The definition of Curtailment Periods has been clarified to mean periods of time when the Seller is
prevented from delivering or Buyer is prevented from receiving energy.
APPROVED:
ephen Sch
uer, City Manager
Adopt Resolution Approving Collateral Assignment of Power Purchase Agreement to Permit Financing of Astoria 2 Solar Project
by EFS Renewables Holdings, LLC and Approving Related Amendments to Existing Power Purchase Agreement to Effectuate
Such Financing as Contained in a Consent and Agreement; a Non -Disturbance and Attornment Agreement; and an Intercreditor
and Subordination Agreement
November 18, 2015
Page 2 of 2
• The Seller will have 30 days from the effective date of the Consent and Agreement to provide a
Quality Assurance Manual; this Manual provides Buyers with assurance in all areas of project
execution.
• The definitions of Applicable Contract Capacity and Facility Energy have been clarified.
• The automatic termination provision is limited to circumstances in which Seller voluntarily
terminates the leases and/or easements for the Project.
• Should the Buyers exercise the option to buy the Project in the event of an uncured default by the
Seller, clarifications to the Option Agreement include language that:
o Buyers shall not claim a Termination Payment is due as a result of the PPA termination;
and
o Clarifies the definition of Facility Assets regarding shared facilities with other Recurrent
Energy projects.
• Seller is offering all Buyers, including Lodi, a modest reduction in purchase terms ($1/MWh
reduction in the cost of the solar power Lodi buys from the Project) in exchange for
accommodating the PPA amendments and new financing structure.
The Risk Oversight Committee, at its November 9, 2015 meeting, recommended approval after
consulting with staff, City Attorney, and outside legal counsel to permit the project to continue toward
development. Rejecting the request likely terminates the Project.
FISCAL IMPACT: The proposed amendments to the PPA will result in a cost savings of
approximately $573,000 over the 20 -year contract term for Lodi.
FUNDING AVAILABLE: The Astoria 2 Solar Project will be funded by Greenhouse Gas Revenue
(Fund 508) and will be appropriated as part of the annual budget process.
Jordan Ayers
Deputy City Manager/Internal Services Director
Elizabet . Kirkley
Electric Utility Director
PREPARED BY. Melissa Price-Cadek, Rates & Resources Manager
EAK/MPC/Ist
Execution Version
EXHIBIT A
CONSENT AND AGREEMENT
among
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY,
POWER AND WATER RESOURCES POOLING AUTHORITY,
CITY OF LODI,
CITY OF CORONA,
CITY OF MORENO VALLEY
AND
CITY OF RANCHO CUCAMONGA
(collectively, the Contracting Parties)
and
RE ASTORIA 2 LLC,
a Delaware limited liability company
(Project Company)
DEUTSCHE BANK TRUST COMPANY AMERICAS
(Collateral Agent)
and
EFS RENEWABLES HOLDINGS, LLC
(Class A Member)
Dated as of , 2015
OHSUSA:761238376.32
CONSENT AND AGREEMENT
(Astoria 2 PPA)
This CONSENT AND AGREEMENT (this "Consent"), dated as of ,
2015, is entered into by and among SOUTHERN CALIFORNIA PUBLIC POWER
AUTHORITY ("SCPPA"), THE POWER AND WATER RESOURCES POOLING
AUTHORITY, CITY OF LODI, CITY OF CORONA, CITY OF MORENO VALLEY and
CITY OF RANCHO CUCAMONGA (together with each of their successors and permitted
assigns, collectively, the "Contracting Parties" and each, a "Contracting Party"), DEUTSCHE
BANK TRUST COMPANY AMERICAS, in its capacity as collateral agent for the Secured
Parties referred to below (together with its successors, designees and assigns in such capacity,
"Collateral Agent"), EFS RENEWABLES HOLDINGS, LLC (together with its successors and
any permitted assigns of its interest in Astoria Holdings or the Project Company, as applicable,
referred to in Recitals F and G below, the "Class A Member") and RE ASTORIA 2 LLC, a
Delaware limited liability company (the "Project Company"). In accordance with the terms and
conditions set forth in a separate agreement among the Buyers to the Contract (as defined
below), SCPPA may act in its capacity as "Buyers' Agent" hereunder.
RECITALS
A. WHEREAS, the Project Company intends to develop, construct, install, test, own,
operate and maintain an approximately 75 MWAc solar photovoltaic generating facility located
in Kern County, California, commonly known as the Astoria 2 Solar Project (the "Project").
B. WHEREAS, in order to partially finance the development, construction, installation,
testing, operation and use of the Project, the Project Company has entered into that certain Credit
Agreement, dated as of , 2015 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"), by and among the
Project Company, Deutsche Bank Trust Company Americas, in its capacity as administrative
agent to the lenders (in such capacity, the "Administrative Agent"), the Collateral Agent, the
lenders and issuing banks party thereto from time to time and the other parties named therein,
pursuant to which, among other things, the lenders and issuing banks have extended commitments
to make loans and other financial accommodations to, and for the benefit of, the Project Company.
C. WHEREAS, each Contracting Party and the Project Company have entered into
that certain Power Purchase Agreement, dated as of July 23, 2014 (as may be amended, amended
and restated, supplemented or otherwise modified from time to time in accordance with the terms
thereof and hereof, the "Contract").
D. WHEREAS, pursuant to that certain Security and Pledge Agreement with
Collateral Agent, dated as of , 2015, the Project Company has agreed,
among other things, to assign, as collateral security for the Project Company's obligations under
the Credit Agreement and other documents related to the Credit Agreement and any other
documents entered into from time to time to evidence senior secured pari passu indebtedness of
the Project Company (collectively, the "Credit Documents"), all of the Project Company's right,
title and interest in, to and under (but not its obligations, liabilities or duties with respect to) the
Contract to Collateral Agent for the benefit of itself, the lenders, issuing banks and each other
OHSUSA:761238376.32
entity or person that is provided collateral security under the Credit Documents (the "Secured
Parties").
E. WHEREAS, the Credit Documents require that RE Astoria 2 Holdings LLC
("Astoria Holdings"), the direct owner of the Project Company, make certain capital
contributions to the Project Company (the "Construction Capital Contributions") to fund a
portion of the costs of the development, construction, installation and testing of the Project.
F. WHEREAS, RE Pioneer Holdings LLC ("Pioneer Holdings"), the direct owner
of Astoria Holdings, has agreed to cause Astoria Holdings to issue all of the Class A
Membership Interests in Astoria Holdings to the Class A Member, which, together with Pioneer
Holdings, the owner of all of the Class B Membership Interests in Astoria Holdings, will fund
the Construction Capital Contributions to be made by Astoria Holdings to the Project Company.
Pioneer Holdings will retain management control of Astoria Holdings, and indirectly, the Project
Company, following such issuance, subject to the Class A Member's right to approve major
decisions with respect to Astoria Holdings and the Project Company, as provided for in the
transaction documents between Pioneer Holdings and the Class A Member (the "Tax Equity
Documents"), and Pioneer Holdings has delivered an officer's certificate to the Contracting
Parties with respect to such transactions contemplated by the Tax Equity Documents.
G. WHEREAS, commencing on the first anniversary of the first funding date and
ending on the first anniversary of the final funding date under the Tax Equity Documents, the Class
A Member has the option to cause Astoria Holdings to merge with and into the Project Company
with the Project Company being the surviving entity and the Class A and B Membership Interests in
Astoria Holdings will be converted into Class A and B Membership Interests in the Project
Company, in each case with all of the same rights, obligations and privileges as immediately prior
to such merger (the "Merger"). Such Merger shall not affect in any way Pioneer Holdings'
management control of the Project Company or any of the rights or obligations of the Project
Company hereunder or under the Power Purchase Agreement.
H. WHEREAS, the Project Company is obtaining this Consent pursuant to
Sections 13.3 and 14.7 of the Contract.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound, the parties hereto hereby agree, notwithstanding anything in the Contract to the
contrary, as follows:
SECTION 1. CONSENT TO ASSIGNMENT
(a) Each Contracting Party acknowledges the assignment referred to in Recital D
above, consents to such assignment and agrees with Collateral Agent for the benefit of the
Secured Parties as follows:
(i) After delivery by Collateral Agent to the Project Company and each
Contracting Party of notice that an Event of Default (as defined in the Credit Agreement)
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has occurred and is continuing, Collateral Agent shall be entitled (but not obligated) to
exercise all or any portion of the rights and to take any or all actions of the Project
Company under the Contract in accordance with the terms and conditions set forth
therein. Upon receipt of notice from Collateral Agent that it intends to exercise such
rights and remedies, each Contracting Party agrees to accept such exercise and cure by
Collateral Agent so long as timely made by Collateral Agent under the Contract and this
Consent. Any such cure or attempt to cure by Collateral Agent shall not be construed as
an assumption by Collateral Agent, the Secured Parties, or any of their respective
assignee(s) or designee(s) of any covenants, agreements or obligations of the Project
Company under or in respect of the Contract.
(ii) The Contracting Parties will not without the prior written consent of
Collateral Agent, cancel or terminate the Contract, or suspend performance of their
services thereunder or consent to or accept any cancellation, termination or suspension
thereof by the Project Company, except as provided in the Contract and in accordance
with Section 1(a)(iii) hereof. SCPPA, acting as Buyers' Agent, shall deliver duplicates or
copies of all notices of Default (as defined below) to Collateral Agent simultaneously
with delivery thereof to the Project Company. Failure by SCPPA, acting as Buyers'
Agent, to deliver any such notice shall not create a cause or claim against SCPPA, acting
as Buyers' Agent, or any other Contracting Party on the part of Collateral Agent, the
Administrative Agent or any Secured Party.
(iii) The Contracting Parties will not terminate the Contract or suspend
performance of their services thereunder on account of any default or breach of the
Project Company thereunder, or upon the occurrence or non-occurrence of any event or
condition under the Contract which would immediately or with the passage of any
applicable grace period or the giving of notice, or both, entitle the Contracting Parties to
terminate or suspend performance thereunder (such default, breach, event or condition, a
"Default"), without written notice to Collateral Agent (which notice may be provided
concurrently to the Collateral Agent and the Project Company) of such termination or
suspension and first providing to Collateral Agent (A) ten (10) business days to cure such
Default from the later of (x) the date notice of Default is delivered to Collateral Agent
and (y) the expiration of the Project Company's cure period set forth in the Contract, if
such Default is the failure to pay amounts to the Contracting Parties which are due and
payable by the Project Company under the Contract, or (B) a reasonable opportunity to
cure such Default, but not more than sixty (60) days from the later of (x) the date notice
of Default is delivered to Collateral Agent and (y) the expiration of the Project
Company's cure period set forth in the Contract, if the Default cannot be cured by the
payment of money to the Contracting Parties so long as all other obligations under such
Contract are performed by the Project Company or the Collateral Agent. If possession of
the Project is necessary to cure such Default, and Collateral Agent declares the Project
Company in default under the Credit Agreement and commences foreclosure
proceedings, Collateral Agent will be allowed a reasonable period, but not more than one
hundred eighty (180) days, to complete such proceedings before the Contracting Parties
terminate the Contract or suspend performance under the Contract. If Collateral Agent is
prohibited by any court order or bankruptcy or insolvency proceedings from curing the
Default or from commencing or prosecuting foreclosure proceedings, the foregoing time
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periods shall be extended by the period of such prohibition, but not more than one
hundred eighty (180) days from the date of such court order or proceeding.
(iv) In the event Collateral Agent, the Secured Parties or their designee(s) or
assignee(s) or a purchaser or grantee at a foreclosure and sale or by a conveyance in lieu
of foreclosure take possession of or title to the Facility or any of the Facility assets, and
so long as no Default exists under the Contract (it being acknowledged and agreed that if
Contracting Party irrevocably waives any Default of the Project Company under the
Contract, no such Default shall be deemed to exist), then Collateral Agent, the Secured
Parties or their designee(s) or assignee(s) or other purchaser or grantee shall assume the
obligations of the Project Company (or Collateral Agent or the Secured Parties or their
designee(s) or assignee(s)) under the Contract that arise from and after the date of such
assumption and the Option Agreement and the Land Option Agreement (as such terms
are defined below) shall remain in full force and effect.
(v) Subject to the restrictions set forth in the Contract, as may be modified
herein, the Contracting Parties consent to the transfer of the Project Company's interest
under the Contract to the Secured Parties or Collateral Agent or their designee(s) or
assignee(s) or any of them or a purchaser or grantee at a foreclosure sale by judicial or
nonjudicial foreclosure and sale or by a conveyance in lieu of foreclosure and agrees that
upon such foreclosure, sale or conveyance, the Contracting Parties shall recognize the
Secured Parties or Collateral Agent or their designee(s) or assignee(s) or any of them or
other purchaser or grantee as the applicable party under the Contract, provided that such
Secured Parties or Collateral Agent or their designee(s) or assignee(s) or other purchaser
or grantee (A) assume in writing the obligations of the Project Company under the
Contract arising or accruing from and after the date of such assumption, it being
understood, however, that such assumption shall not operate as a waiver of the Defaults
existing under the Contract prior to the date of such assumption and (B) assume the
Contract subject to Contracting Parties' rights thereunder, including, among others, its
right to purchase the Project in accordance with that certain Option Agreement to be
entered into by and among the parties thereto) (the "Option Agreement"), and its right to
purchase certain real property associated with the Project in accordance with that Land
Option Agreement to be entered into by and among the parties thereto (the "Land Option
Agreement"). Notwithstanding any assumption in accordance with this Section 1(a)(iv),
the Project Company shall not be released or discharged from and shall remain liable for
any and all of its obligations to Contracting Party arising or accruing under the Contract
prior to such assumption.
(vi) In the event that the Contract is rejected by a trustee or debtor-in-
possession in any bankruptcy or insolvency proceeding, or if the Contract is terminated
for any reason other than a Default which could have been but was not cured by
Collateral Agent as provided in Section 1(a)(iii) above, and if, within sixty (60) days after
such rejection or termination, Collateral Agent or its successors or assigns shall so
request, Contracting Party will execute and deliver to Collateral Agent a new contract,
which contract shall be on the same terms and conditions as the original Contract,
including the remaining term of the original Contract before giving effect to such
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termination. References in this Consent to the "Contract" shall be deemed also to refer to
such new contract.
(vii) In the event Collateral Agent, the Secured Parties, any designee or
assignee of the foregoing or any purchaser or grantee thereof elects to succeed to the
Project Company's interests under the Contract as provided in Sections 1(a)(iv) or
1(a)(vii) or to enter into a new contract as provided in Section 1(a)(v) above, such person
shall, subject to the terms of this Consent, assume the obligations of the Project Company
under the Contract to the extent provided herein and in Section 14.7(e) of the Contract,
and the sole recourse of the Contracting Parties in seeking the enforcement of such
obligations shall be to such Collateral Agent's, Secured Parties', designee's or assignee's
interest in the Project (and no officer, director, employee, shareholder or agent thereof
shall have any liability with respect thereto).
(viii) In the event Collateral Agent, the Secured Parties or their designee(s) or
assignee(s) succeed to the Project Company's interest under the Contract, Collateral
Agent, the Secured Parties or their designee(s) or assignee(s) shall cure any then -existing
Defaults under the Contract, except any Defaults which by their nature are not capable of
being cured (including, without limitation, defaults which relate to bankruptcy of the
Project Company or other defaults that relate to the status or condition of the Project
Company at the time of the Default because they are personal to the Project Company).
Collateral Agent, the Secured Parties and their designee(s) or assignee(s) shall have the
right to assign their interest in the Contract or the new contract entered into pursuant to
Section 1(a)(v) above to a person or entity to whom the Project Company's interest in the
Project is transferred, provided such transferee assumes the obligations of the Project
Company (or Collateral Agent or the Secured Parties or their designee(s) or assignee(s))
under the Contract and is a Qualified Transferee. Upon such assignment, Collateral
Agent and the Secured Parties and their designee(s) or assignee(s) (including their agents
and employees) shall be released from any further liability thereunder to the extent of the
interest assigned.
(ix) This Consent shall not be deemed to waive or modify in any respect any of
the rights of any Contracting Party under the Contract against the Project Company or to
relieve Project Company from the observance and performance of any and all covenants
and conditions of the Project Company except as otherwise expressly provided herein.
(b) Each Contracting Party (i) acknowledges that the Class A Member has agreed to
acquire all of the Class A Membership Interests as referred to in Recitals F and G above, and
may from time to time thereafter transfer or assign all or part of its Class A Membership Interest
to another Tax Equity Investor, (ii) agrees that each such issuance and any such subsequent
transfer or assignment constitutes a Tax Equity Transaction under and as defined in the Contract,
and (iii) acknowledges that Pioneer Holdings may be removed from its role as managing member
of Astoria Holdings or the Project Company, as applicable, for cause, as defined in and pursuant
to the documents associated with any Tax Equity Transaction, in which case the Class A
Member shall appoint a replacement managing member that itself has retained a Qualified
Operator for the Facility (or has agreed not to interfere with the existing Qualified Operator for
the Facility). Each Contracting Party (x) acknowledges the Merger referred to in Recital G
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above, (y) consents to the Merger and (z) agrees that the Merger will not be deemed a default (and
no Default shall be deemed to have occurred as a result thereof) under the Contract.
(c) SCPPA, acting as Buyers' Agent, shall deliver duplicates or copies of all notices
of Default (as defined above) to Class A Member simultaneously with delivery thereof to the
Project Company and the Collateral Agent. Failure by SCPPA, acting as Buyers' Agent, to
deliver any such notice shall not create a cause or claim against SCPPA, acting as Buyers'
Agent, or any Contracting Party on the part of Class A Member.
SECTION 2. CONTRACT STIPULATIONS AND ACKNOWLEDGMENTS
Notwithstanding any provision contained in the Contract to the contrary, effective as of
the date hereof, Project Company and each Contracting Party acknowledges and agrees to the
following (unless otherwise defined in this Consent, capitalized terms used in this Section 2 shall
have the meanings given to such terms in the Contract, as amended and modified pursuant to this
Consent):
(a) The foreclosure by a Secured Party (including the Collateral Agent) of the
membership interests in Seller or by a Facility Lender in any equity interests pledged by an
Affiliate of Seller shall not constitute a direct or indirect change of control (including a "Change
of Control") of Seller.
(b) In addition to the Project Company, Pioneer Holdings may be an issuer of Facility
Debt. Facility Debt shall also include (x) all amounts required to be received by the lenders under
that certain Back -Leverage Credit Agreement, dated as of , 2015 (as amended,
amended and restated, supplemented, modified or replaced from time to time, including any
refinancing by an affiliate of Pioneer Holdings, which will be a wholly owned subsidiary of
Recurrent Energy, LLC, the "BL Credit Agreement"), by and among Pioneer Holdings, Deutsche
Bank Trust Company Americas, in its capacity as administrative agent to the lenders and collateral
agent to the secured parties, the lenders and issuing banks party thereto from time to time and the
other parties named therein, to cause the Discharge Date to occur under (and as defined in) the BL
Credit Agreement (including any and all amounts that need to be distributed to Pioneer Holdings
pursuant to the terms of the Amended and Restated Astoria Holdings LLCA or the Amended and
Restated Project Company LLCA (each, as defined in the BL Credit Agreement), as applicable) to
cause the Discharge Date to occur, and (y) the aggregate amount of the payments the Class A
Member is entitled to receive under the Amended and Restated Astoria Holdings LLCA or the
Amended and Restated Project Company LLCA, as applicable, as each may be amended or
amended and restated from time to time; provided that the total amount of Facility Debt shall not
be deemed to exceed the sum of (A) the amount set forth in Exhibit B and (B) payment
obligations in connection with swap or interest rate hedging breakage costs related to the BL Credit
Agreement.
(c) In addition to the pledge permitted to Section 14.7(d) of the Contract, the Seller shall
also pledge its assets pursuant to the Security Documents.
(d) The Effective Date of the Contract occurred as of July 23, 2014.
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(e) First Solar Electric (California), Inc. is a Qualified Operator for so long as it remains
a wholly owned subsidiary of First Solar, Inc., and Team -Solar Inc. is a Qualified Operator for so
long as it remains a wholly owned subsidiary of SunEdison.
(f) "Curtailment Periods" under Section 7.4(a) of the Contract are periods of time
during which, for the reasons set forth in the definition of such term, Seller is prevented from
delivering Facility Energy to the Point of Delivery or a Buyer is prevented from receiving
Facility Energy at the Point of Delivery.
(g) Notwithstanding the failure of Seller to deliver a Quality Assurance manual (a "Q/A
Manual") to Buyer's Agent within ninety (90) days of the Effective Date pursuant to Appendix G of
the Contract, Seller is not and will not be deemed in default (and no Default shall be deemed to have
occurred) under the Contract; provided, that Seller hereby agrees to submit to Buyer's Agent three
(3) copies of the Q/A Manual within thirty days after the effective date of this Consent pursuant to
and otherwise in accordance with the terms of Appendix G of the Contract.
(h) Applicable Contract Capacity is measured by the sum of the inverter nameplate
capacity of the Facility at the Point of Delivery, taking into account the reactive power obligations
of the Facility. The Facility is intended to have 20 inverters with a total Applicable Contract
Capacity prior to January 1, 2022 of 65 MW, and from and after January 1, 2022 of 75 MW
(meaning that such inverters will have a 75MW rating). For the avoidance of doubt, the foregoing
shall not limit Seller's obligation to deliver the Products associated with Test Energy, Facility
Energy and Excess Energy to Buyer in accordance with the Contract.
(i) As used in Sections 6.5(a)(i), 6.5(a)(ii) and 6.5(a)(iii) of the Contract, and without
limiting Seller's obligation to deliver Energy at the Applicable Contract Capacity in accordance
with the Contract, the term "Facility Energy" means "total Energy generated by the Facility, less
station load and transmission losses to the Point of Delivery, as measured by CAISO-approved
Electric Metering Devices."
(j) The automatic termination provision in Section 13.4(b) of the Contract, which
references Section 12.4(1), is limited to circumstances in which Seller voluntarily terminates any of
the Site Control Documents without requirement to do so from any Governmental Authority or
without the consent of SCPPA, acting as Buyers' Agent, such consent not to be unreasonably
withheld.
(k) A Secured Party (including the Collateral Agent) shall not be required to be a
Qualified Transferee in connection with such Secured Party becoming party to the Contract. Any
transferee of a Secured Party (including the Collateral Agent) and any transferee pursuant to a
foreclosure sale, a deed in lieu of foreclosure or otherwise shall be deemed a "Qualified Transferee"
under the Contract so long as such transferee (A) (i) has financial qualifications at least equivalent
to the financial qualifications of Seller as of the Effective Date, and (ii) retains, or causes Seller to
retain, a Qualified Operator to operate the Facility (or otherwise agrees not to interfere with the
existing Qualified Operator for the Facility), or (B) is reasonably acceptable to SCPPA, acting as
Buyers' Agent.
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(1) If the Contracting Parties elect to exercise the Project Purchase Option pursuant to
Section 2.2(d) of the Option Agreement and a "Closing" occurs thereunder, the Contracting
Parties shall not claim a Termination Payment as being due as a result of the termination of the
Contract.
(m) In connection with the exercise of the Project Purchase Option pursuant to Section
2.2(d) of the Option Agreement, the term "Facility Assets" includes, in respect of any shared
interconnection facilities or other fixtures or equipment required for the transmission of Energy
to the Point of Delivery (including, without limitation, any applicable portion of the poles,
support structures and the underlying real property rights co -owned with Golden Fields Solar III,
LLC (as successor in interest to Willow Springs Solar, LLC), RE Astoria LLC, RE Garland
LLC, RE Garland A, LLC, and RE Garland 2 LLC under the SFA (as defined below)), and is
deemed limited to, the rights, title and interest of the Project Company under and pursuant to (i)
the Shared Facilities Ownership and Operating Agreement, dated as of September 8, 2015,
among the Project Company, RE Astoria LLC, RE Garland LLC, RE Garland A LLC and RE
Garland 2 LLC, (ii) the LGIA Co -Tenancy Agreement dated as of July 9, 2015, by and between
Project Company and RE Astoria LLC (the "LGIA Co -Tenancy Agreement"), and (iii) the SFA
(as defined below). The Contracting Parties acknowledge that the Project Company does not have
in its name (i) possession of or exclusive right to control any such shared interconnection facilities
or other fixtures or equipment or (ii) permits to install, operate and maintain such shared
interconnection facilities or other fixtures or equipment, but has the contractual right to use such
shared interconnection facilities and permits pursuant to these documents.
(n) The LGIA Co -Tenancy Agreement is not an Additional Site Control Document, as
defined in Section 1.1 of the Contract and listed on Appendix R of the Contract, including the "Co -
Tenancy Agreement (for shared switchyard & gen-tie), by and among RE Astoria LLC, RE Astoria
2 LLC and [ 1".
(o) In connection with the exercise of the Project Purchase Option pursuant to
Section 2.2(d) of the Option Agreement, that certain Shared Facilities Common Ownership
Agreement between Willow Springs Solar, LLC and RE Astoria LLC, dated November 25, 2014, as
assigned to Golden Fields Solar III, LLC and RE Astoria LLC pursuant to that certain Assignment
and Assumption Agreement (Shared Facilities Common Ownership Agreement, dated September
28, 2015, and recorded September 29, 2015 as Instrument No. 000215135721 (the "SFA"), shall be
included as an Assumed Contract to the extent of the Project Company's right, title and interest
thereto and obligations thereunder, and pursuant to Sections 3.3(a), 9.1(c), and 9.1(d) of the SFA,
the Exercising Buyers will be required to, and shall in accordance with the terms thereof, provide a
guaranty of the relevant share of the Interconnection Manager's payment and performance
obligations under the SFA.
(p) Any non -participating member of SCPPA shall be deemed a Qualified Buyer
Assignee if such Person is rated (a) "Baa3" or higher by Moody's and "BBB-" or higher by S&P, if
such Person is rated by both Moody's and S&P, or (b) `Baa3" or higher by Moody's or "BBB-" or
higher by S&P if such person is rated by either S&P or Moody's or (c) equivalent ratings by any
other credit rating agency of recognized national standing.
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(q) (i) Any inchoate Lien arising by operation of Law and (ii) any suppliers', vendors',
mechanics', workman's, repairman's, employees', warehousemen's or other like Liens arising in
the ordinary course of business for work or service performed or materials furnished in
connection with the initial construction of the Facility in each case with respect to (i) and (ii) for
amounts the payment of which is either not yet delinquent or is being contested in good faith by
appropriate proceedings, irrespective of the amount of such Lien, shall be a Permitted
Encumbrance. For the avoidance of doubt, notwithstanding anything herein to the contrary, any
recorded or perfected Lien (other than Liens imposed by the Facility Lender and any Lien which is
the subject of the preceding item (ii)) shall not be a Permitted Encumbrance.
(r) Each of KeyBank National Association and Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank Nederland", New York Branch is a Qualified Issuer and the
form of letter of credit attached hereto as Exhibit A is an acceptable form of Project Development
Security and Delivery Term Security, as the case may be.
(s) The definition of "Generator Interconnection Agreement" in Section 1.1 of the
Contract shall be amended by adding "RE Astoria LLC, " immediately prior to "Southern
California Edison," therein.
(t) The Generator Interconnection Agreement is by and among the Project Company,
Southern California Edison, CAISO and RE Astoria LLC. The shared rights between the Project
Company and RE Astoria LLC to interconnection service under the Generator Interconnection
Agreement are addressed in a co -tenancy agreement between the Project Company and RE Astoria
LLC.
(u) The third recital in the Land Option Agreement shall be amended by replacing "840"
with "793.035".
(v) The definition of "Property" in the Land Lease shall be amended by replacing "840"
with "793.035".
(w) Section 7.4(d) of the Contract shall be amended by inserting the phrase "(or other
Seller Excused Hours)" in each instance after the phrases "but for a curtailment event arising
under Section 7.4", "applicable to the curtailment event" and "during the curtailment event"
therein.
(x) The definition of "CAISO Integration Amounts" in Section 1.1 of the Contract
shall be amended by inserting the phrase "including charges resulting from Scheduler's
curtailments pursuant to Section 7.4(c)" immediately after the phrase "assessed by the CAISO to
Seller in its capacity as Scheduling Coordinator for the Facility" therein.
(y) A holder of Facility Debt or a designee or representative thereof will have the right,
within forty-five (45) days after the later of (x) delivery to the Project Company of the calculation of
the Termination Payment by a Contracting Party pursuant to Section 13.4(e) of the Contract
following the Contracting Parties' election not to purchase the Project, and (y) if there is a dispute
among the Parties to the Contract as to the existence of an Early Termination Date or calculation of
the Termination Payment, the resolution of such dispute by final judgment of a court of competent
jurisdiction or by agreement of the Parties to the Contract, to purchase (or designate one of its
9
OHSUSA:761238376.32
affiliates to purchase) from the Contracting Parties all of the Contracting Parties' right, title and
interest in the Contract and to assume the Contracting Parties' obligations thereunder for a price
equal to the Termination Payment. Upon the purchase and payment in full of the Termination
Payment, each Contracting Party agrees to release or transfer to the purchaser all of the Liens
granted in its favor under the Security Documents, and agrees that the Project Purchase Option and
the Land Option Agreement shall be immediately irrevocably terminated.
(z) The definition of "Fixed Rate" in Section 1.1 of the Contract shall be amended by
deleting "Sixty Four Dollars ($64.00)" and replacing it with "Sixty Three Dollars ($63.00).
(aa) Notwithstanding Sections 12.4(c) and (d) of the Contract, the failure to deliver
and record the items listed in Items 7 through 10 of Appendix I of the Contract by September 30,
2015 and to achieve the closing of the Project Financing by September 30, 2015, the Contracting
Parties hereby acknowledge there is no Seller Default or liquidated damages payable thereunder.
SECTION 3. ARRANGEMENTS REGARDING PAYMENTS
All payments to be made by the Contracting Parties to the Project Company under the
Contract and the Option Agreement from and after the date hereof and until the date that the
Secured Parties' lien in the Contract or the Option Agreement, as applicable, is released pursuant
to the terms of the Credit Documents shall be made in lawful money of the United States,
directly to Deutsche Bank Trust Company Americas, in its capacity as the depositary bank, for the
benefit of Collateral Agent, acting for the benefit of the Secured Parties, for deposit to
ABA # , GLA #
Account No. ( ) or at such
other person or entity and/or at such other address as Collateral Agent may from time to time
specify in writing to SCPPA, acting as Buyers' Agent. From and after the date hereof and until
the date that the Secured Parties' lien in the Contract or the Option Agreement, as applicable, is
released pursuant to the terms of the Credit Documents and notice thereof is provided to SCPPA,
acting as Buyers' Agent, the Contracting Parties shall not, without the prior written consent of
Collateral Agent, make any payments to or for the benefit of the Project Company other than as
contemplated pursuant to the first sentence of this Section 3.
SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) Each Contracting Party hereby represents and warrants as of the date of this Consent
that: (i) such Contracting Party (A) is (1) with respect to Southern California Public Power
Authority and Power and Water Resources Pooling Authority, a validly existing California joint
powers authority, and (2) with respect to the City of Corona, City of Lodi, City of Moreno
Valley and City of Rancho Cucamonga, a validly existing California municipal corporation, (B)
has the legal power and authority to own its properties, to carry on its business as now being
conducted and to enter into the Contract and this Consent, and to perform and carry out all
covenants and obligations on its part to be performed under and pursuant to the Contract and this
Consent; (ii) the execution, delivery and performance by such Contracting Party of this Consent
and the Contract have been duly authorized by all necessary action on the part of such
Contracting Party and do not require any approvals, filings with, or consents of any entity or
person which have not previously been obtained or made; (iii) each of this Consent and the
10
OHSUSA:761238376.32
Contract is in full force and effect, has been duly executed and delivered on behalf of such
Contracting Party by the appropriate persons of such Contracting Party, and constitutes the legal,
valid and binding obligation of such Contracting Party, enforceable against such Contracting
Party in accordance with its terms, except as the enforceability thereof may be limited by (Y)
bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (Z) general equitable principles (whether considered in a
proceeding in equity or at law); (iv) to the best of each Contracting Party's knowledge after due
inquiry, there exists no Default or event that with the giving of notice or passage of time would
become a Default under the Contract, (v) the Contract has not been terminated by such
Contracting Party and such Contracting Party has not caused SCPPA, acting as Buyers' Agent, to
issue a default notice under the Contract; (vi) to the best of such Contracting Party's knowledge,
no event of Force Majeure exists under, and as defined in, the Contract; (vii) except as otherwise
provided herein, the Contract has not been amended, supplemented or modified (whether by
waiver, consent or otherwise); (viii) the execution, delivery and performance by such Contracting
Party of this Consent and the Contract do not (A) conflict with the governance documents of such
Contracting Party, (B) result in any breach of, default under or the imposition of any lien upon any
of the property or assets of such Contracting Party pursuant to any indenture, mortgage, deed of
trust or other material agreement or instrument to which it is a party or by which it or any of its
properties or assets is bound or (C) contravene any applicable federal or state laws or order, writ,
injunction, decree or arbitral award binding upon such Contracting Party or its properties or assets;
(x) such Contracting Party has obtained and is in material compliance with each governmental
approval which is necessary to authorize or is required in connection with the execution, delivery or
performance of this Consent and the Contract, each of which is in full force and effect; and (xi)
there is no action, suit, proceeding or investigation at law or in equity or by or before any court,
arbitrator, administrative agency or governmental authority pending or, to the best of such
Contracting Party's knowledge, threatened against or affecting such Contracting Party or any of its
respective properties which questions the legality, validity, binding effect or enforceability of this
Consent or the Contract or which individually or in the aggregate, would, if adversely determined,
materially adversely affect such Contracting Party's ability to enter into and carry out its obligations
under this Consent or the Contract.
(b) The Project Company acknowledges that no Contracting Party has made any, and
does not hereby make any, representation or warranty, expressed or implied, that the Project
Company has any right, title or interest in the collateral secured by the Credit Documents (the
"Collateral").
(c) The Project Company represents and warrants to the Contracting Parties that: (i) it
(A) is a duly organized and validly existing under the laws of the State of Delaware, (B) is duly
qualified, authorized to do business and in good standing in every jurisdiction necessary to
perform its obligations under the Contract and this Consent, as applicable, and (C) has all
requisite power and authority to enter into and to perform its obligations hereunder and under
this Consent and the Contract, as applicable, and to carry out the terms hereof and thereof and
the transactions contemplated hereby and thereby; (ii) the execution, delivery and performance
by such party of this Consent and the Contract have been duly authorized by all necessary
limited liability company or other action on the part of such party and do not require any
approvals, filings with, or consents of any entity or person which have not previously been
obtained or made; (iii) each of this Consent and the Contract, as applicable, is in full force and
11
OHSUSA:761238376.32
effect, has been duly executed and delivered on behalf of such party by the appropriate officers
of such party, and constitutes the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms, except as the enforceability thereof may be
limited by (A) bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and (B) general equitable principles (whether
considered in a proceeding in equity or at law); (iv) the execution and delivery of this Consent,
and the assignment contemplated hereby and the fulfillment of and compliance with the
provisions of this Consent, do not and will not conflict with or constitute a breach of or a default
under, any of the terms, conditions of provisions of the Credit Agreement; and (v) to the best of
the Project Company's knowledge after due inquiry, there exists no Default or event that with the
giving of notice or passage of time would become a Default under the Contract.
(d) Deutsche Bank Trust Company Americas represents and warrants to the
Contracting Parties that it has all requisite corporate power and authority, as the Collateral Agent
to the extent expressly provided for herein or the Credit Agreement, to execute and deliver this
Consent and this Consent has been duly authorized and executed by Deutsche Bank Trust
Company Americas in such capacity.
(e) The Class A Member represents and warrants to the Contracting Parties that it has
all requisite power and authority to execute and deliver this Consent and this Consent has been
duly authorized and executed by the Class A Member.
SECTION 5. NOTICES
All notices required or permitted hereunder shall be in writing and shall be effective upon
receipt if sent by (a) hand delivery, (b) facsimile, (c) by electronic mail in ".PDF" format or (d)
by private courier or delivery service with charges prepaid, and addressed as specified below:
If to a Contracting Party, at SCPPA's address, acting as Buyers' Agent,
below:
Southern California Public Power Authority
1160 Nicole Court
Glendora, CA 91740
Attention: Executive Director
Facsimile: (626) 704-9461
Tel: (626) 793-9364
Email: bcarnahan@scppa.org, shomer@scppa.org,
knguyen@scppa.org
12
OHSUSA:761238376.32
If to Collateral Agent:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 16th Floor
Mail Stop: NYC60 - 1630
New York, NY 10005
Attn: Project Finance Agency Services — Astoria Solar Project
Fax: 732-578-4636
If to the Class A Member:
EFS Renewables Holdings, LLC
800 Long Ridge Road
Stamford, CT 06927
Tel:
Fax: (203) 585-0758
Attn: Portfolio Manager - Astoria 2 Solar Project
with a copy to:
EFS Renewables Holdings, LLC
800 Long Ridge Road
Stamford, CT 06927
Tel: (203) 961-2125
Fax: (203) 357-6632
Attn: General Counsel — Astoria 2 Solar Project
If to the Project Company:
RE Astoria 2 LLC
c/o Recurrent Energy, LLC
300 California Street, 7t' Floor
San Francisco, CA 94104
Tel: 415-675-1500
Fax: 415-675-1501
Attn: Office of the General Counsel
Any party may change the address or number to which notices to such party are to be
delivered by providing notice of such change to each other party in the manner set forth above.
For purposes of this Section 5, "Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Los Angeles County, California, or New York City are
authorized or required by law to close.
13
OHSUSA:761238376.32
SECTION 6. ASSIGNMENT, TERMINATION, AMENDMENT AND GOVERNING LAW
This Consent shall be binding upon and benefit the successors and assigns of the parties
hereto and their respective successors, transferees and permitted assigns (including without
limitation, any entity that refinances all or any portion of the obligations under the Credit
Agreement). Each Contracting Party agrees to (a) confirm such continuing obligation in writing
upon the reasonable request of the Project Company, Collateral Agent, the Secured Parties, the
Class A Member or any of their respective successors, transferees or assigns, (b) on or prior to
the initial funding date and the final funding date of the Class A Member pursuant to a Tax
Equity Transaction, deliver an estoppel to the Class A Member representing that the matters set
forth in Section 4 above remain true and correct as of such date and (c) cause any successor -in -
interest to a Contracting Party with respect to its interest in the Contract to assume, in writing in
form and substance reasonably satisfactory to Collateral Agent and the Class A Member, the
obligations of such Contracting Party hereunder. Any purported assignment or transfer of the
Contract not in conjunction with the written instrument of assumption contemplated by the
foregoing clause (c) shall be null and void. No termination, amendment, variation or waiver of
any provisions of this Consent shall be effective unless in writing and signed by all of the parties
hereto. In the event of any conflict or inconsistency between the provisions of this Consent and
the Contract, the provisions of this Consent shall prevail, and the Contract shall be deemed to be
amended accordingly. This Consent shall terminate upon the repayment in full of all Facility
Debt; provided that, notwithstanding the foregoing Sections 1(b), 2, 4, 6, and 7 shall survive in
favor of the Class A Member until termination of the Contract. This Consent shall be governed
by the laws of the State of California.
Collateral Agent, Project Company and each Contracting Party hereby submits to the
exclusive jurisdiction of the federal and state court sitting in Los Angeles County, California for
the purposes of all legal proceedings arising out of or relating to this Consent or the transactions
contemplated hereby. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to the laying of
the venue of any such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. To the extent permitted by
applicable law, each party hereto irrevocably agrees to the service of process of any of the
aforementioned courts in any suit, action or proceeding by the mailing of copies thereof by
certified mail, postage prepaid, return receipt requested, to such party at the address referenced in
Section 5, such service to be effective upon the date indicated on the postal receipt returned from
such party.
SECTION 7. MISCELLANEOUS
(a) Counterparts. This Consent may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below, shall constitute a
single binding agreement. Signatures delivered by facsimile or by PDF shall have the same
effect as original signatures.
(b) Third Party Beneficiaries. There are no third party beneficiaries to this Consent
other than the Secured Parties.
14
OHSUSA:761238376.32
(c) Severability. In case any provision of this Consent, or the obligations of any of
the parties hereto, shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions, or the obligations of the other parties hereto, shall not
in any way be affected or impaired thereby, and the parties hereto shall negotiate in good faith to
replace such invalid, illegal or unenforceable provisions.
SECTION 8. COLLATERAL AGENT
Any corporation or association into which Collateral Agent may be merged or converted
or with which it may be consolidated, or any corporation or association resulting from any
merger, conversion or consolidation to which Collateral Agent shall be a party, or any
corporation or association to which all or substantially all of the corporate trust business of
Collateral Agent may be sold or otherwise transferred shall be the successor Collateral Agent
hereunder without any further act. In the performance of its obligations hereunder, Collateral
Agent shall be entitled to all of the rights, benefits, protections, indemnities and immunities
afforded to it pursuant to the Credit Documents (including to the extent such rights are to be
exercised at the direction of the relevant Secured Parties in accordance therewith).
SECTION 9. ACKNOWLEDGMENTS BY PROJECT COMPANY.
Project Company, by its execution hereof, acknowledges and agrees that notwithstanding
any term to the contrary in the Contract, the Contracting Parties have agreed to perform as set
forth herein and that none of execution of this Consent, performance by any Contracting Party of
its obligations hereunder, the exercise of any rights of a Contracting Party hereunder, or the
acceptance of performance of the Contract by any party other than Project Company shall (i)
release Project Company from any obligation of Project Company under the Contract, (ii)
constitute a consent by Contracting Party of, or impute any knowledge to, Contracting Party of
any specific terms or conditions of the Credit Agreement, the BL Credit Agreement or any of the
Credit Documents, or (iii) except as expressly set forth in this Consent, constitute a waiver by the
Contracting Party of any of its rights under the Contract. Project Company acknowledges for the
benefit of each Contracting Party that, except as expressly set forth in this Consent, none of the
Credit Documents, the BL Credit Agreement, or any other document executed in connection
therewith alter, amend, modify or impair any provision of the Contract.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
OHSUSA:761238376.32
IN WITNESS WHEREOF, the parties hereto by their officers thereunto duly authorized,
have duly executed this Consent as of the date first set forth above.
CONTRACTING PARTIES: SOUTHERN CALIFORNIA PUBLIC
POWER AUTHORITY
OHSUSA:761238376.32
By:
Its:
Date:
POWER AND WATER RESOURCES
POOLING AUTHORITY
Bv:
Its:
Date:
Attest:
CITY OF LODI
By:
Its:
Date:
Attest:
Approved as to form
CITY OF CORONA
City Attorney
By.
Its:
Date:
Attest:
Consent and Agreement Signature Page
CITY OF MORENO VALLEY
By:
Its:
Date:
Attest:
CITY OF RANCHO CUCAMONGA
By:
Its:
Date:
Attest:
RE ASTORIA 2 LLC,
as Project Company
By:
Name
Title:
Consent and Agreement Signature Page
OHSUSA:761238376.32
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Collateral Agent for the Secured Parties
By: Deutsche Bank National Trust Company
By:
Name:
Title:
By:
Name:
Title:
EFS RENEWABLES HOLDINGS, LLC,
as Class A Member
By:
Name:
Title:
Consent and Agreement Signature Page
OHSUSA:761238376.32
Orrick Draft
October 30, 2015
EXHIBIT A
FORM OF
LETTER OF CREDIT
IRREVOCABLE, UNCONDITIONAL, AND CLEAN STANDBY LETTER OF CREDIT
NO.
Applicant:
1 ]
Beneficiary:
[INSERT]
Amount:
Expiration Date:
Expiration Place:
Ladies and Gentlemen:
We hereby issue our Irrevocable, Unconditional and Clean Standby Letter of Credit in favor of
the beneficiary by order and for the account of the applicant which is available at sight for USD
$XX,XXX,XXX by sight payment upon presentation to us at our office at [bank's address] 1 of:
(i) your written demand for payment containing the text of Exhibit I, (ii) your signed statement
containing the text of Exhibit II and, (iii) the original of this Letter of Credit and all
amendments (or photocopy of the original for partial drawings) (the "Documents"). Drawings
may be presented via fax to_. In the case of a full or final drawing, the original Letter of Credit
and documents are to be sent via overnight courier to our address indicated above.
A presentation under this Letter of Credit may be made only on a day, and during hours, in
which such office is open for business, and payments can be effected via wire transfer (a
"Business Day"). Partial drawings shall be permitted under this Letter of Credit, and this Letter
of Credit shall remain in full force and effect with respect to any continuing balance;
provided that the Available Amount shall be reduced by the amount of each such partial drawing.
1 Note to Issuer: The Letter of Credit must be payable in U.S. dollars within the continental U.S.
Note to Seller: Bank to have office for presentment in California to allow for in person presentment by
Buyers.
OHSUSA:761238376.32
Upon presentation to us of your Documents in conformity with the foregoing, we will, on the
third (3rd) succeeding Business Day after such presentation, irrevocably and without reserve or
condition except as otherwise stated herein, make payment hereunder in the amount set forth in
the demand. Payment shall be made to your order by deposit to your account at the bank
designated by you in the demand in immediately available funds. We agree that if, on the
Expiration Date, the office specified above is not open for business by virtue of an interruption
of the nature described in the International Standby Practices ISP 98 (also known as ICC
Publication No. 590), or revision currently in effect (the "ISP"), this Letter of Credit will be duly
honored if the specified Documents are presented by you within thirty (30) days after such office
is reopened for business.
Provided that the presentation on this Letter of Credit is made on or prior to the Expiration Date
and the applicable Documents as set forth above conform to the requirements of this Letter of
Credit, payment hereunder shall be made regardless of: (a) any written or oral direction, request,
notice or other communication now or hereafter received by us from the Applicant or any other
person except you, including without limitation any communication regarding fraud, forgery,
lack of authority or other defect not apparent on the face of the documents presented by you, but
excluding solely a written order issued by a court, which order specifically orders us not to make
such payment; (b) the solvency, existence or condition, financial or other, of the Applicant or any
other person or property from whom or which we may be entitled to reimbursement for such
payment; and (c) without limiting clause (b) above, whether we are in receipt of or expect to
receive funds or other property as reimbursement in whole or in part for such payment.
We agree that the time set forth herein for payment of any demand(s) for payment is sufficient to
enable us to examine such demand(s) and the related Documents(s) referred to above with care
so as to ascertain that on their face they appear to comply with the terms of this credit and that if
such demand(s) and Document(s) on their face appear to so comply, failure to make any such
payment within such time shall constitute dishonor of such demand(s).
This Letter of Credit shall terminate upon the earliest to occur of (i) our receipt of a notice in the
form of Exhibit III hereto signed by an authorized officer of Beneficiary, accompanied by this
Letter of Credit for cancellation, (ii) our close of business at our aforesaid office on the
Expiration Date, or if the Expiration Date is not a Business Day, then on the next Business Day, or
(iii) the Business Day on which we have honored drawings which exhaust the amount available to
be drawn under this Letter of Credit.
It is a condition of this Letter of Credit that it shall be deemed automatically extended without
amendment for one (1) year from the Expiration Date, or any future expiration date, unless at
least thirty (30) calendar days prior to the Expiration Date (or any future expiration date), we
send you notice by registered mail, return receipt requested or overnight courier at your address
herein stated or such other address of which you notify us in advance in writing, as
acknowledged by us in the form of an amendment to this Letter of Credit, that we elect not to
OHSUSA:761238376.32
consider this Letter of Credit extended for any such additional period; provided that in no event
shall the Expiration Date of this Letter of Credit extend beyond [ 1.2
We may, in our sole discretion, increase or decrease the stated amount of this Letter of Credit,
and the Expiration Date may be extended, by an amendment to this Letter of Credit. Any such
amendment for decrease shall become effective only upon receipt by us of your acceptance by
your signature on a hard copy amendment.
2 Note to Draft: To be date that is ten (10) Business Days prior to final maturity of the Credit Agreement.
OHSUSA:761238376.32
You shall not be bound by any written or oral agreement of any type between us and the
Applicant or any other person relating to this credit, whether now or hereafter existing.
We hereby engage with you that your demand(s) for payment in conformity with the terms of
this Letter of Credit will be duly honored as set forth above. All fees and other costs associated
with the issuance of and any drawing(s) against this Letter of Credit shall be for the account of
the Applicant. All of the rights of the Beneficiary set forth above shall inure to the benefit of
your successors by operation of law. In this connection, in the event of a drawing made by a
party other than the Beneficiary, such drawing must be accompanied by the following signed
certification and copy of document proving such successorship:
"The undersigned does hereby certify that [drawer] is the successor by operation of law to [the
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY][the POWER AND WATER
RESOURCES POOLING AUTHORITY] [the CITY OF LODI] [the CITY OF CORONA] [the
CITY OF MORENO VALLEY][the CITY OF RANCHO CUCAMONGA], as beneficiary
named in [name of bank] Letter of Credit No. ."
Except so far as otherwise expressly stated herein, this Letter of Credit is subject to the ISP
(other than Rule 3.12(a), which shall not apply to this Letter of Credit). As to matters not
governed by the ISP, this Letter of Credit shall be governed by and construed in accordance
with the laws of the State of New York or Ohio.
This Letter of Credit sets forth in full our undertaking, and such undertaking shall not in any way
be modified, amended, amplified or limited by reference to any document, instrument or
agreement referred to herein, except for Exhibit I, II, and III hereto and the notices referred to
herein; and any such reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except as otherwise provided in this paragraph.
Communications with respect to this Letter of Credit shall be in writing and shall be addressed to
us at the address referred to above, and shall specifically refer to this Letter of Credit no. .
Yours faithfully,
(name of issuing bank)
By
Title
OHSUSA:761238376.32
EXHIBIT I
DEMAND FOR PAYMENT
Re: Irrevocable, Unconditional and Clean Standby Letter of Credit
No.
[Insert Bank Address]
To Whom It May Concern:
Dated , 20_
Demand is hereby made upon you for payment to us of $ by deposit to
account no. at (insert name of bank]. This demand is made under, and is subject to
and governed by, your Irrevocable, Unconditional and Clean Standby Letter of Credit no.
dated , 20 in the
amount of $ established by you in our favor for the account of as the
Applicant.
DATED: , 20 .
[ ]
By
Title
OHSUSA:761238376.32
EXHIBIT II
STATEMENT
Re: Your Irrevocable, Unconditional and Clean Standby Letter of Credit
No.
[Insert Bank Address]
To Whom It May Concern:
Dated , 20_
Reference is made to your Irrevocable, Unconditional and Clean Standby Letter of Credit
no. , dated , 20 in the amount of $
established by you in our favor for the account of , as the Applicant.
We hereby certify to you that $ is due, owing and unpaid to us by the
Applicant in that certain [DESCRIBE AGREEMENT].
DATED: , 20 .
By
Title
OHSUSA:761238376.32
EXHIBIT III
SURRENDER
Re: Your Irrevocable, Unconditional and Clean Standby Letter of Credit
No. Dated , 20_
[Insert Bank Address]
Notice of Surrender of Letter ofCredit
Date:
Attention: Letter of Credit Department
Ladies and Gentlemen:
We refer to your above-mentioned Irrevocable, Unconditional and Clean Standby Letter
of Credit (the "Letter of Credit"). The undersigned, an authorized signer of [the
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY][the POWER AND WATER
RESOURCE POOLING AUTHORITY] [the CITY OF LODI] [the CITY OF
CORONA][the CITY OF MORENO VALLEY][the CITY OF RANCHO CUCAMONGA],
hereby surrenders this Letter of Credit to you for cancellation as of the date set forth above.
No payment is demanded of you under this Letter of Credit in connection with this surrender.
Very truly yours,
[ ]
By
Title
Exhibit A — Page 1
OHSUSA:761238376.32
EXHIBIT B
MAXIMUM FACILITY DEBT
Period Ending
Value
Stub Period (31 -Dec -16)
240,000,000
31 -Dec -17
212,000,000
31 -Dec -18
189,000,000
31 -Dec -19
164, 000, 000
31 -Dec -20
140,000,000
31 -Dec -21
115,000,000
31 -Dec -22
97,000,000
31 -Dec -23
92,000,000
31 -Dec -24
87,000,000
31 -Dec -25
82,000,000
31 -Dec -26
77,000,000
31 -Dec -27
72,000,000
31 -Dec -28
66,000,000
31 -Dec -29
61,000,000
31 -Dec -30
55,000,000
31 -Dec -31
49,000,000
31 -Dec -32
43,000,000
31 -Dec -33
36,000,000
31 -Dec -34
29,000,000
31 -Dec -35
24,000,000
31 -Dec -36
22,000,000
Exhibit B — Page 1
OHSUSA:761238376.32
Recording requested by and EXHIBIT B
After recording return to:
RE ASTORIA 2 LLC
c/o Recurrent Energy, LLC
300 California Street, 7th Floor
San Francisco, California 94104
Attention: Office of the General Counsel
NON -DISTURBANCE AND ATTORNMENT AGREEMENT
THIS NON -DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement") is
entered into as of , 2015, by and among RE ASTORIA 2 LANDCO LLC, a
Delaware limited liability company ("Owner"); RE ASTORIA 2 LLC, a Delaware limited liability
company ("Lessee"); SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY ("SCPPA"), a
joint powers agency and a public entity organized under the laws of the State of California and
created under the provisions of the California Joint Exercise of Powers Act (California Government
Section 6500 et seq.) (the "Act"), the POWER AND WATER RESOURCES POOLING
AUTHORITY ("PWRPA"), a joint powers authority and a public entity organized under the laws of
the State of California and created under the provisions of the Act, the CITY OF LODI ("Lodi"), a
California municipal corporation organized and existing under the laws of the State of California, the
CITY OF CORONA ("Corona"), a California municipal corporation organized and existing under
the laws of the State of California, the CITY OF MORENO VALLEY ("Moreno Valley"), a
California municipal corporation organized and existing under the laws of the State of California, and
the CITY OF RANCHO CUCAMONGA ("Rancho Cucamonga"), a California municipal
corporation organized and existing under the laws of the State of California (SCPPA, PWRPA, Lodi,
Corona, Moreno Valley, and Rancho Cucamonga, collectively, "Fee Secured Party") and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent for the Secured Parties
(as defined in the Credit Agreement (defined below)) (together with its successors and permitted
assigns and in such capacity, "Collateral Agent").
RECITALS:
A. Owner and Lessee entered into an Amended and Restated Land Lease dated as of
October 15, 2015 (as it may be amended, modified or supplemented, the "Lease") as evidenced by
the certain Memorandum of Amended and Restated Land Lease dated as of October 15, 2015 and
recorded on October 21, 2015 as Instrument No. 215147688 of the real property records of Kern
County, California (the "Official Records"), which Lease covers certain real property located in Kern
County, California more particularly described in attached Exhibit A (the "Property"), for the
development, construction and operation by Lessee of a solar energy project (the "Project") pursuant
to the terms of the Lease.
#4829-7546-3714v11
OHSUSA:763391539.4
B. Fee Secured Party is the beneficiary of a Deed of Trust, Security Agreement and
Fixture Filing executed by Owner in favor of Stewart Title of California, Inc., a California
corporation, as Trustee, for the benefit of Fee Secured Party, dated as of and
recorded on as Instrument No. of the Official
Records (as the same may have been or may hereafter be amended, modified, renewed, extended or
replaced, collectively, the "Deed of Trust").
C. Fee Secured Party and Owner have entered into that certain Land Option Agreement
dated as of May 13, 2015 (the "Land Option Agreement"), a memorandum of which was recorded in
the Official Records on as Instrument No. pursuant
to which Owner has granted Fee Secured Party an option (the "Land Purchase Option") to purchase
the Property in accordance with the terms and conditions thereof.
D. Lessee is entering into that certain Credit Agreement dated as of
2015 (as amended, amended and restated, supplemented, or otherwise modified from time to time,
the "Credit Agreement"), with the financial institutions party thereto (the "Leasehold Lenders") and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent (together with its
successors and assigns in such capacity, the "Administrative Agent"), pursuant to which the
Leasehold Lenders have agreed to make loans to Lessee on the terms and conditions set forth therein,
which loans will be secured by a leasehold deed of trust ("Leasehold DOT") granted by Lessee for
the benefit of Collateral Agent.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. For purposes of this Agreement, the term "Lease" shall mean the Lease, as modified
by that certain Consent, Estoppel and Agreement dated as of the date hereof among Owner, Lessee
and Collateral Agent.
2. Non -Disturbance.
(a) Fee Secured Party hereby agrees, on behalf of itself, any purchaser at a
foreclosure sale or any other person or entity to whom Owner's interest in the Property passes from
Owner by operation of law or any other means, that if Fee Secured Party or any of the foregoing
persons or entities, purchases at a foreclosure or otherwise, such that it becomes the successor to
Owner as owner of the Property claiming by or through Fee Secured Party, any assignee or
successor -in -interest to Fee Secured Party, so long as no Event of Default (as defined under the
Lease) by Lessee exists, for avoidance of doubt, taking into account all applicable notice, grace and
cure periods set forth therein, including, without limitation, Collateral Agent's cure rights that are
specified for secured lenders under the Lease, (i) the Lease shall continue in full force and effect as a
direct agreement between Fee Secured Party (or any assignee or successor -in -interest to Fee Secured
Party or any person or entity that becomes the successor to Owner as owner of the Property) and
Lessee and/or Collateral Agent, as the case may be, and (ii) Lessee's quiet possession and occupancy
-2
NONDISTURBANCE AND ATTORNMENT AGREEMENT
OHSUSA:763391539.4
#4829-7546-3714v11
of the Property and Lessee's and Collateral Agent's rights and privileges under the Lease shall not be
disturbed by Fee Secured Party, any assignee or successor -in -interest to Fee Secured Party or any
person or entity that becomes the successor to Owner as owner of the Property claiming by or
through Fee Secured Party, any assignee or successor -in -interest to Fee Secured Party. Fee Secured
Party shall not join Lessee as party to any action or proceeding brought as a result of a default by
Owner under the Deed of Trust or any other document associated with the Deed of Trust, unless such
joinder is required in order to complete the action or proceeding. In the event the Collateral Agent or
any of the Secured Parties acquire Lessee's interest in the Lease by foreclosure, deed in lieu of
foreclosure, or otherwise, Fee Secured Party shall recognize the Collateral Agent or the Secured
Parties as having all rights of Lessee under the Lease and this Agreement.
(b) If Owner's interest in the Lease is acquired by Fee Secured Party, whether by
purchase and sale, foreclosure, deed in lieu of foreclosure, or in any other way, action, or proceeding,
or by any assignee or successor to Fee Secured Party, including, without limitation, any purchaser at
a foreclosure sale, Fee Secured Party, Fee Secured Party's assignees, or successors -in -interest, or the
purchaser at the foreclosure sale shall take the Property subject to the Lease and, subject to the terms
of this Section 2(b), shall be bound by all of the undischarged obligations of Owner under the Lease
occurring after such foreclosure or other action; provided, however, that Fee Secured Party shall not
be bound by any obligation to pay for any damages caused by Owner under the Lease, shall not (i) be
obligated cure or pay for any uncureable defaults of Owner under the Lease that occurred prior to the
date of the transfer of title, (ii) be obligated to pay for any allowances or other amounts under the
Lease owed to Lessee that occurred prior to the date of the transfer of title, (iii) be bound by any
amendments to the Lease not received by Fee Secured Party prior to the date of any such foreclosure
or other action nor consented to by the Fee Secured Party, or (iv) be bound by any prepayment of
rent more than one month in advance.
(c) Fee Secured Party hereby agrees to give to Lessee and Collateral Agent
copies of all notices of Owner's default(s) under the Deed of Trust concurrently with Fee Secured
Party giving any such notice of default to Owner. Each of Owner and Lessee hereby agrees to give
to Fee Secured Party copies of all notices of either Lessee's or Owner's default(s) under the Lease
concurrently with either Owner or Lessee giving any such notice of default to Lessee or Owner, as
the case may be. Lessee and Collateral Agent shall have the right at their respective option, but not
the obligation, to remedy any Owner default under the Deed of Trust, or to cause any default of
Owner under the Deed of Trust to be remedied. Fee Secured Party shall accept performance by
Lessee or Collateral Agent of any term, covenant, condition, or agreement to be performed by Owner
under the Deed of Trust with the same force and effect as though performed by Owner.
(d) Except to the extent of the rights set forth in (i) the Power Purchase
Agreement dated July 23, 2014 between Fee Secured Party and Lessee (including, but not limited to,
the Project Purchase Option and the Right of First Offer defined therein), (ii) the Land Option
Agreement between Fee Secured Party and Owner, (iii) the Option Agreement dated as of September
29, 2015 between Fee Secured Party and Lessee, which provides Fee Secured Party with a purchase
option to purchase the Project, (iv) the liens granted pursuant to the Deed of Trust, and the Leasehold
DOT (but subject to the terms of the Intercreditor and Subordination Agreement, dated as of the date
hereof, between Fee Secured Party and the Collateral Agent), Fee Secured Party hereby agrees that it
has no interest in and to the Project, or any equipment, improvements, or fixtures owned or installed
-3
NONDISTURBANCE AND ATTORNMENT AGREEMENT
OHSUSA:763391539.4
#4829-7546-3714v11
by Lessee or its affiliates, successors, assigns, or transferees on the Property leased to Lessee relating
to the Project, whether real, personal, or mixed, and that any equipment, improvements, or fixtures
owned or installed by Lessee or its affiliates, successors, assigns, or transferees on the Property
leased to Lessee relating to the Project shall remain the property of Lessee and shall be removable by
Lessee at any time, subject to the terms and conditions of the Lease.
3. Attornment.
(a) If the interest of Owner in the Lease is acquired by Fee Secured Party,
whether by purchase and sale, foreclosure, deed in lieu of foreclosure, or in any other way, action, or
proceeding, or by any assignee or successor to Fee Secured Party, including, without limitation, any
purchaser at a foreclosure sale, Lessee shall attorn to Fee Secured Party, or its successors and assigns,
said attornment to be effective and self -operative immediately upon Fee Secured Party's or its
successor's or assign's succeeding to the interests of Owner in the Lease without the execution of
any other instruments on the part of any party hereto.
(b) Owner hereby irrevocably authorizes and directs Lessee, upon receipt from
Fee Secured Party of written notice that Fee Secured Party has acquired Owner's fee interest in the
Property, to pay all rents and other monies payable by Lessee under the Lease to or as directed by
Fee Secured Party. Owner irrevocably releases Lessee from any liability to Owner for all payments
so made. Lessee agrees that, upon receipt of such notice, it will pay all monies then due and
becoming due from Lessee under the Lease to or as directed by Fee Secured Party, notwithstanding
any provision of the Lease to the contrary. Such payments shall continue until Fee Secured Party
directs Lessee otherwise in writing.
(c) If the interest of the Lessee in the Lease is acquired by the Collateral Agent or
any successor or assign of the Collateral Agent's interest in the Leasehold DOT, whether by purchase
and sale, foreclosure, deed in lieu of foreclosure, or in any other way, action, or proceeding, or by
any assignee or successor to Collateral Agent, including, without limitation, any purchaser at a
foreclosure sale, Collateral Agent or such successor, as Lessee, shall attorn to the Owner or the party
holding the interest of the Owner in the Lease, or its successors and assigns, said attornment to be
effective and self -operative immediately upon Collateral Agent's or its successor's or assign's
succeeding to the interests of Lessee in the Lease without the execution of any other instruments on
the part of any party hereto-; provided, however, that the Collateral Agent or such successor shall not
be bound by any obligation to pay for any damages caused by Lessee under the Lease, shall not (i) be
obligated to cure or pay for any uncureable defaults of Lessee under the Lease, (ii) be obligated to
pay for any other amounts under the Lease owed to Owner prior to the date of the transfer of title, or
(iii) be bound by any amendments to the Lease not received by the Collateral Agent prior to the date
of such foreclosure or other action not consented to by the Collateral Agent.
4. Land Option Agreement. For avoidance of doubt, if Fee Secured Party exercises the
Land Purchase Option to purchase the Property pursuant to the Land Option Agreement, Fee Secured
Party shall take title to the Property subject to the terms and conditions of the Lease, this Agreement
and any amendment or modification thereof in effect as of the time when such purchase is
consummated.
-4-
NONDISTURBANCE AND ATTORNMENT AGREEMENT
OHSUSA:763391539.4
#4829-7546-3714v11
5. General Provisions.
(a) Any notice or other required communication hereunder shall be in writing and
may be given by delivering in person, reliable overnight courier, or mailing the same by registered or
certified mail, return receipt requested, addressed to the intended party at its address as set forth
below. Any party may designate a new address by notice in writing to the other parties. Any notice
given in accordance herewith shall be effective on the date of receipt or rejection in the case of
reliable overnight courier or registered or certified mail.
Owner:
Lessee:
Fee Secured Party:
Collateral Agent:
RE ASTORIA 2 LANDCO LLC
300 California Street
7th Floor
San Francisco, CA 94104
Attention: Office of the General Counsel
RE ASTORIA 2 LLC
300 California Street
7th Floor
San Francisco, CA 94104
Attention: Office of the General Counsel
(b) This Agreement shall be binding upon, and inure to the benefit of, the
successors and assigns of each of the parties hereto. The term "Fee Secured Party" shall include the
respective holders from time to time of the Deed of Trust, and the terms "Owner" and "Lessee" shall
include the successors, assignees, or holders from time to time of the landowner's interest in the
Property, and the successors, assignees, or holders from time to time of the Lessee's interest in the
Lease.
(c) Each party shall, from time to time, take such actions, execute such
documents and agreements, and provide such certificates as any other party may reasonably request
to carry out and fulfill the transactions, and permit the exercise and performance of the rights and
-5-
NONDISTURBANCE AND ATTORNMENT AGREEMENT
OHSUSA:763391539.4
#4829-7546-3714v11
obligations, as are contemplated hereunder, and to effectuate the purpose and intent of this
Agreement.
(d) This Agreement shall be governed by, and construed under, the laws of the
State of California. This Agreement may not be amended or modified except by an agreement in
writing signed by the all of the parties hereto. Each party may freely assign its rights and obligations
hereunder, provided, however,(i) the rights and obligations may not be assigned or delegated to
multiple parties by a party to this Agreement, (ii) the rights and obligations of Fee Secured Party may
not be assigned or delegated separate from the interest of the Fee Secured Party in the Deed of Trust,
and (iii) the rights and obligations of Collateral Agent may not be assigned or delegated separate
from the interest of the Collateral Agent in the Leasehold DOT. If any action or proceeding is
brought by any party against any other party arising from or relating to this Agreement, the
prevailing party shall be entitled to recover its reasonable costs and attorneys' fees. This Agreement
may be executed in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
(e) Lessee shall cause this Agreement to be recorded in the applicable recording
office in Kern County, California where the Property is located. Each of Owner and Fee Secured
Party agrees to execute, acknowledge and deliver such further instruments as Lessee or Collateral
Agent may request to allow for the proper recording of this Agreement or to otherwise accomplish
the purposes of this Agreement.
(f) All references to the Collateral Agent contained herein refer to the Collateral
Agent not acting in its individual capacity but solely as Collateral Agent acting at the written
direction of the Secured Parties.
[signatures on following pages]
Approved as to form
-6-
NONDISTURBANCE AND ATTORNMENT AGREEMENT
OHSUSA:763391539.4
City Attorney
#4828-7546-3714v11
IN WITNESS WHEREOF, the parties have executed this Non -Disturbance Agreement as of
the day and year first above written.
OWNER:
RE ASTORIA 2 LANDCO LLC,
a Delaware limited liability company
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
LESSEE:
RE ASTORIA 2 LLC,
a Delaware limited liability company
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
FEE SECURED PARTY:
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY,
a joint powers authority and a public entity organized under the laws of the State of California and
created under the provisions of the Act
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
POWER AND WATER RESOURCES POOLING AUTHORITY,
a joint powers authority and a public entity organized under the laws of the State of California and
created under the provisions of the Act
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
CITY OF LODI,
a California municipal corporation organized and existing under the laws of the State of California
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
CITY OF CORONA,
a California municipal corporation organized and existing under the laws of the State of California
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
CITY OF MORENO VALLEY,
a California municipal corporation organized and existing under the laws of the State of California
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
CITY OF RANCHO CUCAMONGA,
a California municipal corporation organized and existing under the laws of the State of California
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
[signatures continue on the following page]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
COLLATERAL AGENT:
DEUTSCHE BANK TRUST COMPANY AMERICA,
a
By:
Name:
Title:
A notary public or other officer
completing this certificate verifies
only the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2015 before me,
ss:
(insert name and title of the officer)
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal]
SIGNATURE PAGE TO NONDISTURBANCE AND ATTORNMENT AGREEMENT
#4829-7546-3714v11
OHSUSA:763391539.4
EXHIBIT A
TO
NON -DISTURBANCE AND ATTORNMENT AGREEMENT
Property Description
PARCEL 1: (Lease Area)
LAND LEASE AREA A
REAL PROPERTY IN THE COUNTY OF KERN, STATE OF CALIFORNIA, BEING A PART OF THE
SOUTHWEST QUARTER OF SECTION 28 AND THE SOUTHEAST QUARTER OF SECTION 29,
TOWNSHIP 9 NORTH, RANGE 15 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE
UNINCORPORATED AREA OF THE COUNTY OF KERN, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION
29, THENCE EASTWARDLY ALONG THE NORTHERLY LINE OF SAID SOUTHEAST QUARTER,
S.89°46'01"E., 45.00 FEET; THENCE S.00°30'08"E., 45.00 FEET TO THE POINT OF BEGINNING;
THENCE EASTWARDLY 45.00 FEET SOUTH OF AND PARALLEL TO SAID NORTHERLY LINE,
S.89°46'01"E., 1138.37 FEET; THENCE S.00°35'59"E., 100.01 FEET; THENCE EASTWARDLY, 145.00
FEET SOUTH OF AND PARALLEL TO SAID NORTHERLY LINE, S.89°46'01"E., 1441.57 FEET;
THENCE EASTWARDLY, 145.00 FEET SOUTH OF AND PARALLEL TO THE NORTHERLY LINE OF
THE SOUTHWEST QUARTER OF SAID SECTION 28, N.89°57'28"E., 2238.68 FEET; THENCE
S.00°00'20"E., 828.29 FEET; THENCE N.89°59'05"E., 333.18 FEET; THENCE SOUTHWARDLY, 65.00
FEET WEST OF AND PARALLEL TO THE EASTERLY LINE OF SAID SOUTHWEST QUARTER,
S.01°06'50"E., 345.79 FEET; THENCE S.89°17'38"W., 38.69 FEET; THENCE S.00°38'22"W., 1264.35
FEET; THENCE WESTWARDLY, 55.00 FEET NORTH OF AND PARALLEL TO THE SOUTHERLY LINE
OF SAID SOUTHWEST QUARTER, S.89°08'33"W., 2494.04 FEET; THENCE WESTWARDLY, 55.00
FEET NORTH OF AND PARALLEL TO THE SOUTHERLY LINE OF THE SOUTHEAST QUARTER OF
SAID SECTION 29, N.89°39'08"W., 2570.89 FEET TO THE BEGINNING OF A CURVE CONCAVE TO
THE NORTHEAST; THENCE ALONG SAID CURVE WITH A RADIUS OF 20.00 FEET AND CENTRAL
ANGLE OF 89°09'00" AN ARC LENGTH OF 31.12 FEET; THENCE NORTHWARDLY, 45.00 FEET
EAST OF AND PARALLEL TO THE WESTERLY LINE OF SAID SOUTHEAST QUARTER,
N.00°30'08"W., 2549.51 FEET TO THE POINT OF BEGINNING.
AFFECTS A PORTION OF APN'S 261-211-06, 261-230-12, 261-230-28, 261-230-29, 261-230-30,
261-230-31, 261-230-32, 261-230-33, 261-230-38, 261-230-39, 261-230-40 AND 261-230-41
CONTAINING 12,457,729.030 SQUARE FEET OR 285.990 ACRES MORE OR LESS.
LAND LEASE AREA B
REAL PROPERTY IN THE COUNTY OF KERN, STATE OF CALIFORNIA, BEING A PART OF THE
NORTHEAST QUARTER AND THE SOUTHEAST QUARTER OF SECTION 32 AND THE NORTHWEST
QUARTER AND THE NORTH HALF OF THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 9
NORTH, RANGE 15 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE UNICORPORATED
AREA OF THE COUNTY OF KERN, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
EXHIBIT A
#4842-0527-7211
COMMENCING AT THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION
33, THENCE WESTWARDLY ALONG THE NORTHERLY LINE OF SAID NORTHWEST QUARTER,
S.89°08'32"W., 144.05 FEET; THENCE SOUTHWARDLY PARALLEL TO THE EASTERLY LINE OF
SAID NORTHWEST QUARTER, S.00°38'22"W., 55.02 FEET TO THE POINT OF BEGINNING; THENCE
SOUTHWARDLY PARALLEL TO THE EASTERLY LINE OF SAID NORTHWEST QUARTER,
S.00°38'22"W., 676.46 FEET; THENCE S.44°21'41"E., 74.24 FEET; THENCE S.00°40'17"W., 1991.29
FEET; THENCE N.89°47'00"E., 47.62 FEET; THENCE SOUTHWARDLY, 45.00 FEET WEST OF AND
PARALLEL WITH THE EASTERLY LINE OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF
SAID SECTION 33, S.00°38'22"W., 1240.28 FEET; THENCE WESTWARDLY, 20.00 FEET NORTH OF
AND PARALLEL WITH THE SOUTHERLY LINE OF SAID NORTH HALF, S.89°41'01"W., 2586.20 FEET;
THENCE N.89°24'14"W., 29.64 FEET; THENCE SOUTHWARDLY, 30.00 FEET WEST OF AND
PARALLEL WITH THE EASTERLY LINE OF THE SOUTHEAST QUARTER OF SAID SECTION 32,
S.01 °10'03"W., 1286.17 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHWEST;
THENCE ALONG SAID CURVE WITH A RADIUS OF 20.00 FEET AND CENTRAL ANGLE OF 89°31'59"
AN ARC LENGTH OF 31.25 FEET; THENCE WESTWARDLY, 55.00 FEET NORTH OF AND PARALLEL
WITH THE SOUTHERLY LINE OF SAID SOUTHEAST QUARTER, N.89°17'58"W., 1594.07 FEET TO
THE WESTERLY LINE OF THE EAST 10.00 ACRES OF THE SOUTHWEST QUARTER OF SAID
SOUTHEAST QUARTER; THENCE NORTHWARDLY ALONG SAID WESTERLY LINE, N.00°56'45"E.,
1283.02 FEET TO THE SOUTHERLY LINE OF THE NORTH HALF OF SAID SOUTHEAST QUARTER;
THENCE WESTWARDLY ALONG SAID SOUTHERLY LINE, N.89°24'14"W., 952.93 FEET; THENCE
NORTHWARDLY, 45.00 FEET EAST OF AND PARALLEL WITH THE WESTERLY LINE OF THE
NORTH HALF OF THE SOUTHEAST QUARTER AND THE NORTHEAST QUARTER OF SAID
SECTION 32, N.00°43'23"E., 2668.95 FEET TO THE SOUTHERLY LINE OF THE NORTHWEST
QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 32; THENCE EASTWARDLY ALONG
SAID SOUTHERLY LINE, S.89°34'47"E., 1278.26 FEET TO THE SOUTHEAST CORNER OF SAID
NORTHWEST QUARTER; THENCE NORTHWARDLY ALONG THE EASTERLY LINE OF SAID
NORTHWEST QUARTER, N.00°29'32"E., 1279.28 FEET; THENCE EASTWARDLY, 55.00 FEET
SOUTH OF AND PARALLEL WITH THE NORTHERLY LINE OF THE NORTHEAST QUARTER OF THE
NORTHEAST QUARTER OF SAID SECTION 32, S.89°39'08"E., 1318.61 FEET; THENCE
EASTWARDLY, 55.00 FEET SOUTH OF AND PARALLEL WITH THE NORTHERLY LINE OF THE
NORTHWEST QUARTER OF SAID SECTION 33, N.89°08'32"E., 561.03 FEET; THENCE
S.00°27'06"W., 412.36 FEET; THENCE EASTWARDLY AND PARALLEL WITH SAID NORTHERLY
LINE, N.89°08'32"E., 756.70 FEET; THENCE N.00°27'06"E., 412.36 FEET; THENCE EASTWARDLY,
55.00 FEET SOUTH OF AND PARALLEL WITH SAID NORTHERLY LINE, N.89°08'32"E., 1174.17 FEET
TO THE POINT OF BEGINNING.
AFFECTS A PORTION OF APN'S 261-213-11, 261-213-19, 261-213-25, 261-213-49, 261-213-51,
261-213-53, 261-213-54, 261-213-55, 261-213-56, 261-250-16, 261-250-27, 261-250-28, 261-250-45,
261-250-47 AND 261-250-48
CONTAINING 20,453,642.161 SQUARE FEET OR 469.551 ACRES MORE OR LESS.
LAND LEASE AREA C
REAL PROPERTY IN THE COUNTY OF KERN, STATE OF CALIFORNIA, BEING A PART OF THE
SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 9 NORTH,
RANGE 15 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE UNICORPORATED AREA OF
THE COUNTY OF KERN, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST QUARTER OF THE
SOUTHWEST QUARTER, THENCE NORTHWARDLY ALONG THE WESTERLY LINE OF SAID
SOUTHEAST QUARTER, N.00°54'14"E., 55.01 FEET TO THE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID WESTERLY LINE, N.00°54'14"E., 1283.87 FEET TO THE NORTHWEST
CORNER OF SAID SOUTHEAST QUARTER; THENCE EASTWARDLY ALONG THE NORTHERLY
LINE OF SAID SOUTHEAST QUARTER, N.89°41'01"E., 1270.51 FEET; THENCE SOUTHWARDLY,
45.00 FEET WEST OF AND PARALLEL WITH THE EASTERLY LINE OF SAID SOUTHEAST
QUARTER, S.00°38'22"W., 1262.15 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE
NORTHWEST; THENCE ALONG SAID CURVE WITH A RADIUS OF 20.00 FEET AND CENTRAL
EXHIBIT A
#4842-0527-7211
ANGLE OF 88°57'21" AN ARC LENGTH OF 31.05 FEET; THENCE WESTWARDLY, 55.00 FEET
NORTH OF AND PARALLEL WITH THE SOUTHERLY LINE OF SAID SOUTHEAST QUARTER,
S.89°35'43"W., 1256.83 FEET TO THE POINT OF BEGINNING.
AFFECTS A PORTION OF APN 261-213-25
CONTAINING 1,633,260.518 SQUARE FEET OR 37.495 ACRES MORE OR LESS.
7929367_10
EXHIBIT A
#4842-0527-7211
EXHIBIT C Execution Version
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 16th Floor
MS: NYC60-1630
New York, NY 10005
Attention: Project Finance Agency Services —
RE Astoria 2 LLC
SPACE ABOVE THIS LINE RESERVED
FOR RECORDER'S USE
INTERCREDITOR AND SUBORDINATION AGREEMENT
BY AND BETWEEN
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS SENIOR AGENT
AND
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY,
POWER AND WATER RESOURCES POOLING AUTHORITY,
CITY OF LODI,
CITY OF CORONA,
CITY OF MORENO VALLEY, AND
CITY OF RANCHO CUCAMONGA,
AS OFFTAKER
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#4845-1598-0578v12
INTERCREDITOR AND SUBORDINATION AGREEMENT
This INTERCREDITOR AND SUBORDINATION AGREEMENT is made as of
, 2015 (as amended, restated or otherwise modified from time to time, this
"Agreement"), by and among the SOUTHERN CALIFORNIA PUBLIC POWER
AUTHORITY, a joint power agency and a public entity organized under the laws of the State of
California and created under the provisions of the Act and the Joint Powers Agreement (each as
defined below) ("SCPPA"), the POWER AND WATER RESOURCES POOLING
AUTHORITY, a joint powers authority and a public entity organized under the laws of the State
of California and created under the provisions of the Act ("PWRPA"), the CITY OF LODI, a
California municipal corporation organized and existing under the laws of the state of California
("Lodi"), the CITY OF CORONA, a California municipal corporation organized and existing
under the laws of the state of California ("Corona"), the CITY OF MORENO VALLEY, a
California municipal corporation organized and existing under the laws of the state of California
("Moreno Valley"), the CITY OF RANCHO CUCAMONGA, a California municipal
corporation organized and existing under the laws of the state of California ("Rancho
Cucamonga") (SCPPA, PWRPA, Lodi, Corona, Moreno Valley and Rancho Cucamonga,
collectively, and together with each of their respective successors and permitted assigns, the
"Offtaker"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation (in its capacity as collateral agent (together with its successors and assigns in such
capacity, "Senior Agent") for the Senior Lenders (as defined below)).
A. RE Astoria 2 LLC, a Delaware limited liability company (the "Project
Company"), is engaged in the development, construction, ownership, operation and maintenance
of an approximately 75 MWac photovoltaic solar power facility located in Kern County,
California (the "Project").
B. The Project Company has entered into the Credit Agreement dated as of
, 2015 (as amended, restated, supplemented, replaced or otherwise modified
from time to time, the "Senior Credit Agreement") with, among others, Senior Agent and the
lenders who are from time to time parties thereto (the "Senior Lenders"), pursuant to which the
Senior Lenders have agreed to extend credit (the "Senior Loan") to the Project Company in order
to partially finance the development, construction, installation, testing, operation and use of the
Project.
C. The Project Company has entered into (i) the Security and Pledge Agreement
dated as of , 2015 (as amended, restated, supplemented, replaced or
otherwise modified from time to time, the "Senior Security Agreement"), with the Senior Agent,
pursuant to which the Project Company has granted to the Senior Agent for the benefit of itself
and the Senior Lenders a lien on and a first priority security interest in all of the Project
Company's personal property (such collateral referred to herein as the "Senior Security
Agreement Collateral") and (ii) the Leasehold Deed Of Trust, Assignment of Rents, Security
Agreement and Fixture Filing dated as of , 2015 (as amended, restated,
supplemented, replaced or otherwise modified from time to time, the "Senior Deed of Trust"),
with the Senior Agent and the trustee specified therein, pursuant to which the Project Company
has granted to the Senior Agent for the benefit of itself and the Senior Lenders a first priority lien
on the Project Company's leasehold interest in the real property on which the Project is located,
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#4845-1598-0578v12
all as more particularly described therein, and a security interest in all of the Project Company's
assets and properties constituting the "Trust Estate" as such term is defined in the Senior Deed of
Trust (such collateral referred to herein as the "Senior Deed of Trust Collateral"). The Senior
Deed of Trust, the Senior Security Agreement and collectively with each other guaranty, security
agreement, pledge agreement, mortgage, deed of trust or other collateral agreement now or
hereafter entered into in connection with the Senior Obligations (as defined below), as the same
may be amended, restated, supplemented, replaced or otherwise modified from time to time are
referred to herein, collectively, as the "Senior Security Documents". The Senior Security
Agreement Collateral and the Senior Deed of Trust Collateral and any other collateral under the
Senior Security Documents or any other Senior Credit Documents or otherwise securing the
Senior Loan and other obligations under the Senior Credit Documents granted by the Project
Company in favor of the Senior Agent is referred to herein, collectively, as the "Senior
Collateral". The Senior Collateral does not include either (i) any Products (defined below) or (ii)
the real property interest that is held in fee that is subject to the Land Purchase Option (defined
below), all of which are disclaimed by the Senior Agent.
D. The Project Company has also entered into (i) the Power Purchase Agreement
dated as of July 23, 2014 (as amended, restated, supplemented, replaced or otherwise modified
from time to time, the "Power Purchase Agreement"), with the Offtaker, pursuant to which the
Project Company has agreed, among other things, to sell electrical energy generated at the
Project and the associated Products to the Offtaker, and (ii) the Security Documents (as defined
in the Power Purchase Agreement) (including financing statements filed in connection therewith
and documents executed to preserve, protect, expand, defend or define the Liens created thereby,
as amended, restated, supplemented, replaced or otherwise modified from time to time, the
"Subordinated Security Documents") with the Offtaker. All collateral under the Subordinated
Security Documents granted by the Project Company to the Offtaker is hereinafter collectively
referred to as the "Subordinated Collateral". The Subordinated Collateral does not include a
pledge by the equity owners of the Project Company of any of such equity owners' respective
interests in, or rights with respect to, the Project Company, all of which are disclaimed by the
Offtaker.
E. The Project Company has entered into an "Option Agreement" with the Offtaker,
pursuant to which the Project Company has granted the Offtaker a "Project Purchase Option" (as
defined in the Option Agreement), to purchase the Project. Separately, Astoria 2 LandCo LLC, a
Delaware limited liability company ("LandCo") and Offtaker have entered into a "Land Option
Agreement," pursuant to which LandCo has granted Offtaker a "Land Purchase Option" (as
defined in the Land Option Agreement) to purchase a fee interest in the real property owned by
LandCo.
F. The Senior Agent and the Offtaker wish to enter into this Agreement in order to,
among other things, (a) confirm that the Senior Agent's security interest in the Senior Collateral
granted by the Project Company pursuant to the Senior Security Document has priority over the
Offtaker's security interest in the Senior Collateral granted by the Project Company pursuant to
the Subordinated Security Documents, (b) provide for the relative rights of the Senior Agent and
the Senior Lenders, on the one hand, and the Offtaker, on the other hand, in connection with the
enforcement of such security interests in the Senior Collateral, and (c) confirm the Senior
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#4845-1598-0578v12
Agent's prior right to exercise Remedial Actions (as defined below) with respect to the Senior
Collateral.
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein, and the mutual covenants herein contained, and for other good and valuable
consideration, each of the Senior Agent (on behalf of and for the benefit of itself and the Senior
Lenders) and the Offtaker hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. The following terms when used in this Agreement
shall have the following meanings, and all capitalized terms used herein, without definition
herein, shall have the meanings given to them in the Power Purchase Agreement:
"Act" means all of the provisions contained in the California Joint Exercise of Powers
Act found in Chapter 5 of Division 7 of Title 1 of the Government Code of the State of
California, beginning at California Government Code Section 6500 et seq.
"Agreement" is defined in the preamble hereto.
"Applicable Law" means any law of the United States or any other jurisdiction where any
Senior Collateral is located or the Project Company operates, including, without limitation, the
UCC.
"Bankruptcy Code" means Title 11 of the United States Bankruptcy Code (11 U.S.C. 101
et seq.), as amended from time to time and any successor statute.
"Consent" means that Consent and Agreement, dated as of , 2015,
by and among the Offtaker, the Project Company, the Senior Agent and EFS Renewables
Holdings, LLC.
"Corona" is defined in Recital A hereto.
"Credit Documents" collectively means the Senior Credit Documents and the
Subordinated Security Documents.
"Insolvency Proceeding" means (a) any voluntary or involuntary insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding relative to the Project Company or any of its property or assets, (b) any
liquidation, dissolution, reorganization or winding up of the Project Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshaling of assets and liabilities of the Project Company
howsoever effectuated.
"Intercreditor Party" means each party to this Agreement, together with such party's
successors and permitted assigns.
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"Joint Powers Agreement" means the "Southern California Public Power Authority Joint
Powers Agreement" entered into pursuant to the provisions of the Act among SCPPA and
SCPPA's members, dated as of November 1, 1980, as amended or modified from time to time.
"LandCo" is defined in Recital E hereto.
"Land Purchase Option" is defined in Recital E hereto.
"Land Purchase Option Agreement" is defined in Recital E hereto.
"Lodi" is defined in Recital A hereto.
"Lien" means any mortgage, deed of trust, lien, security interest, retention of title or lease
for security purposes, pledge, charge, encumbrance, equity, attachment, claim, easement, right of
way, covenant, condition or restriction, leasehold interest, purchase right or other right of any
kind, including any option, of any other person in or with respect to any real or personal
property.
"Moreno Valley" is defined in Recital A hereto.
"Obligor" means the Project Company and any other entity providing security under the
Senior Credit Documents.
"Offtaker" is defined in the preamble hereto.
"Option Agreement" is defined in Recital E hereto.
"Power Purchase Agreement" is defined in Recital D hereto.
"Proceeds" means "proceeds," as such term is defined in Section 9-102 of the UCC and,
in any event, shall include without limitation, (a) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to the Project Company from time to time with respect
to any of the Senior Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to the Project Company from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the Senior Collateral by any
governmental authority, (c) any and all other amounts from time to time paid or payable under or
in connection with any of the Senior Collateral on account of any Remedial Action and (d) the
following types of property acquired with cash Proceeds: accounts, chattel paper, contracts,
documents, general intangibles, equipment, investment property and inventory, as such terms are
defined in the UCC.
"Products" means any and all Facility Energy, Capacity Rights, Environmental Attributes (as
such terms are defined in the Power Purchase Agreement), and ancillary products, services or
attributes similar to the foregoing that are or can be produced by, or are associated with, the
Applicable Contract Capacity (as such term is defined in the Power Purchase Agreement) of the
Project, whether now attainable or established in the future, including delivered energy,
renewable attributes, and renewable energy credits, and all Proceeds thereof.
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"Project" is defined in Recital A hereto.
"Project Company" is defined in Recital A hereto.
"Project Purchase Option" is defined in Recital E hereto.
"PWRPA" is defined in Recital A hereto.
"Rancho Cucamonga" is defined in Recital A hereto.
"Remedial Action" means any claim, action or agreement to judicially or non judicially
foreclose upon, take possession of, sell, lease, dispose of, or realize upon any of the Senior
Collateral, whether pursuant to the UCC or other Applicable Law, by foreclosure, by self-help,
repossession, by appointment of a receiver or trustee, by judicial action or otherwise, or any
exercise of any right or power of ownership (including all voting and consent rights) with respect
to any Senior Collateral, or an assignment or deed -in -lieu of any of the foregoing, or the exercise
of any other right or remedy under the Subordinated Security Documents with respect to the
Senior Collateral. Remedial Action shall not include the exercise by Offtaker of the Project
Purchase Option, the Land Purchase Option, or the Right of First Offer.
"SCPPA" is defined in Recital A hereto.
"Security Documents" collectively means the Senior Security Documents and the
Subordinated Security Documents.
"Senior Agent" is defined in the preamble hereto.
"Senior Collateral" is defined in Recital C hereto.
"Senior Credit Agreement" is defined in Recital B hereto.
"Senior Credit Documents" collectively means (a) the Senior Credit Agreement, the
Senior Security Agreement, the Senior Deed of Trust and any other Senior Security Documents
and (b) interest rate hedge agreements entered into on a pari passu basis with, and related to the
obligations evidenced by, the documents described in clause (a) above, and, in the case of each
of clauses (a) and (b) above, all other documents, instruments, guaranties and agreements now or
hereafter executed or delivered in connection therewith, as the same may be amended, restated,
supplemented, replaced or otherwise modified from time to time.
"Senior Deed of Trust" is defined in Recital C hereto.
"Senior Deed of Trust Collateral" is defined in Recital C hereto.
"Senior Lenders" is defined in Recital B hereto; provided that "Senior Lenders" shall
include as applicable, in addition to the lenders party to the Senior Credit Agreement from time
to time, the counterparties under the interest rate hedging agreements described in clause (b) of
the definition of "Senior Credit Documents."
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"Senior Loan" is defined in Recital B hereto.
"Senior Obligations" means (a) the principal of, and premium, if any, payable on
redemption or prepayment of, and interest on, all indebtedness now existing or hereafter
incurred, and all other now existing or hereafter incurred obligations, liability and indebtedness
of every kind, nature and description of the Project Company and the other Obligors secured by
or under the Senior Security Documents, contingent or not, due or not, obligatory or not, direct
or indirect, primary or secondary, liquidated or unliquidated, or otherwise from operation of law
or otherwise, including without limitation, all fees, expenses (including reasonable fees and
expenses of counsel), claims, charges, fees, indemnity obligations and interest (in each case
whether arising, accruing or incurred before or after the commencement of any Insolvency
Proceeding, and whether or not allowed in such Insolvency Proceeding) secured by or under the
Senior Credit Documents, and (b) any renewals, extensions, modifications, amendments,
replacements, supplements, deferrals or other changes to any of the foregoing, including the
proceeds of any indebtedness used to refinance any of the foregoing and debtor in possession
financing. To the extent any payment with respect to the Senior Obligations (as Proceeds of
security, enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to a trustee, receiver or similar person for any reason,
then such payment or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred.
"Senior Security Agreement" is defined in Recital C hereto.
"Senior Security Agreement Collateral" is defined in Recital C hereto.
"Senior Security Documents" is defined in Recital C hereto.
"Subordinated Collateral" is defined in Recital D hereto.
"Subordinated Obligations" means the obligations and liabilities of the Project Company
secured by or under the Subordinated Security Documents, contingent or not, due or not,
obligatory or not, direct or indirect, primary or secondary, liquidated or unliquidated, or
otherwise from operation of law or otherwise, including without limitation, all fees, expenses
(including reasonable fees and expenses of counsel), claims, charges, fees, indemnity obligations
and interest (in each case whether arising, accruing or incurred before or after the
commencement of any Insolvency Proceeding, and whether or not allowed in such Insolvency
Proceeding) secured by or under the Subordinated Security Documents, and (b) any renewals,
extensions, modifications, amendments, replacements, supplements, deferrals or other changes to
any of the foregoing, including the proceeds of any indebtedness used to refinance any of the
foregoing and debtor in possession financing. To the extent any payment with respect to the
Subordinated Obligations (as Proceeds of security, enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to a trustee,
receiver or similar person for any reason, then such payment or part thereof originally intended
to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not
occurred.
"Subordinated Security Documents" is defined in Recital D hereto.
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OHSUSA:761590290.14
"UCC" means the Uniform Commercial Code as in effect in each applicable jurisdiction.
ARTICLE II
COLLATERAL ISSUES, ETC.
Section 2.1 Representations and Warranties as to this Agreement. Each Intercreditor
Party hereby represents and warrants for itself to the other Intercreditor Parties hereto that (a) it
has all requisite power and authority to execute, deliver and perform under this Agreement; (b)
the execution, delivery and performance by it of this Agreement has been duly authorized by all
requisite corporate or other action; (c) no consent or approval of any other person and no
consent, license, approval or authorization of any governmental authority is required in
connection with the execution, delivery and performance by it of this Agreement; and (d) this
Agreement constitutes its legal, valid and binding obligation enforceable in accordance with its
terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws in effect from time to time affecting the rights of creditors generally and general principles
of equity regardless of whether such enforcement is considered in a proceeding in equity or at
law.
Section 2.2 Priority of Liens. Irrespective of (a) the time, order, manner or method of
creation, attachment, perfection or validity of the respective Liens granted by the Project
Company to any Intercreditor Party in any or all of the Senior Collateral, (b) the time, manner or
place of the filing of the respective UCC financing statements, deeds of trust, or other applicable
filings of any Intercreditor Party with respect to any or all of the Senior Collateral or other means
of perfection, (c) any provision or statement contained in any Senior Credit Document, (d) any
other event, circumstance, occurrence or otherwise or (e) any provision of any Applicable Law to
the contrary, the Liens granted by the Project Company to the Senior Agent (for and on behalf of
itself and the Senior Lenders), pursuant to the Senior Credit Documents, and all terms,
covenants, rights and remedies of Senior Agent and the Senior Lenders under the Senior Security
Documents with respect to the Senior Collateral, are and shall be unconditionally superior and
prior in all respects to any Liens granted by the Project Company to the Offtaker and to all terms,
covenants, rights and remedies of Offtaker under the Subordinated Security Documents with
respect to the Senior Collateral, unless and until the Senior Obligations shall have been paid in
full. Without limiting any security interest the Offtaker may have therein, the Offtaker
acknowledges and agrees that the Senior Agent shall have sole and exclusive control and
dominion over all of the Project Company's deposit accounts, securities accounts and other
similar bank or investment accounts, all certificates evidencing ownership interests in the Project
Company and all amounts and investment property on deposit from time to time therein or
credited from time to time thereto. Except as otherwise provided in this Agreement, while the
Senior Obligations remain outstanding the Offtaker shall not hinder, delay, interfere, contest or
take any other action that may, either directly or indirectly, limit in any respect the Senior
Agent's security interest in and to the Senior Collateral. The expression "payment in full" or
"paid in full" or any similar term or phrase when used in this Agreement shall mean the
termination of all Construction Loan Commitments and Bridge Loan Commitments (each as
defined in the Senior Credit Agreement) under the Senior Credit Documents and final payment
in full of all Construction Loan Facilities and Bridge Loan Facilities (each as defined in the
Senior Credit Agreement) in cash, or, in the case of such Senior Obligations consisting of
contingent obligations in respect of letters of credit or other reimbursement obligations for
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drawings under letters of credit under the Senior Credit Documents, the setting apart of cash
sufficient to discharge such portion of Senior Obligations in an account for the exclusive benefit
of the Senior Agent, in which account the Senior Agent shall be granted a first priority perfected
security interest in a manner acceptable to the Senior Agent, which payment or perfected security
interest shall have been retained by the Senior Agent, in each case, for the period that such
payment or security interest may be avoided as a preference under the Bankruptcy Code or other
Applicable Law.
Subject to Section 3.7, it is expressly understood and agreed that upon any release, sale or
disposition of Senior Collateral permitted pursuant to the terms of the Senior Collateral
Documents that results in a release of the Liens of the Senior Agent, the Liens of the Offtaker
shall be automatically and unconditionally released with respect to such Senior Collateral with
no further consent or action of any person necessary.
Section 2.3 Limitation on Rights of the Offtaker. Notwithstanding anything to the
contrary set forth in the Subordinated Security Documents, unless and until the Senior
Obligations shall have been paid in full, neither the Offtaker nor any agent or representative
therefor shall (i) have the right to commence or take, and the Offtaker shall not commence or
take or cause or permit any agent or representative to directly or indirectly commence or take,
any Remedial Action with respect to the Senior Collateral, (ii) commence, prosecute or
participate in any administrative, legal or equitable action or proceeding against the Project
Company or its property seeking the filing of any reorganization, arrangement, composition,
readjustment, liquidation, bankruptcy or any other action involving the readjustment of all or any
part of the Senior Obligations or Subordinated Obligations, or other similar relief under the
Bankruptcy Code or any present or future state or foreign statute, law or regulations relative to
the Project Company or its properties or any proceedings for voluntary liquidation, dissolution or
other winding up of the Project Company's business, or the appointment of any trustee, receiver
or liquidator for the Project Company or any part of its properties or any assignment for the
benefit of creditors or any marshaling of assets of the Project Company, (iii) commence,
prosecute or participate in any administrative, legal or equitable action or proceeding challenging
the enforceability or exercise of the Senior Credit Documents, including the rights and remedies
afforded to the Senior Agent in the Senior Collateral, or (iv) take any other action against the
Senior Collateral under the Subordinated Security Documents. Notwithstanding the foregoing
and the other terms, conditions and limitations of this Agreement, the Offtaker shall not have any
duties, obligations or liabilities to the Senior Agent or the Senior Lenders, except as expressly
provided herein. Nothing in this Agreement modifies, impairs or shall be deemed a waiver of
any rights or remedies the Offtaker may have with respect to the Subordinated Collateral or
under the Subordinated Security Documents, other than in favor of the Senior Agent and the
Senior Lenders as set forth in this Agreement.
Section 2.4 Enforcement Rights of Senior Lenders. The Senior Agent and each
Senior Lender shall have the exclusive right to carry out, or not to carry out, the provisions of
each Senior Security Document, and to exercise or not to exercise any Remedial Action and
other rights and remedies under the Senior Credit Documents, all in the Senior Agent's and each
Senior Lender's discretion and in the exercise of its and their business judgment (without regard
to the rights of the Offtaker under any Subordinated Security Documents). Such exclusive rights
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shall include, specifically (but not by way of limitation) the right to hold, prepare for sale, sell,
lease or otherwise dispose of (or not take any such action), any or all of the Senior Collateral and
to incur reasonable expenses in connection therewith, all as may be desirable in the Senior
Agent's and each Senior Lender's discretion. Notwithstanding the foregoing, following
acceleration of the Senior Obligations, the Senior Agent shall notify the Offtaker in writing of
such acceleration and offer the Offtaker a one-time (subject to the terms of this Section) option to
purchase the Senior Obligations for cash at par (plus accrued interest and fees thereon). The
Offtaker shall have forty-five (45) days (such 45 day period, the "Election Period") from its
receipt of the notice of acceleration from the Senior Agent to elect to purchase the Senior
Obligations through notifying the Senior Agent during such period in writing of its determination
to purchase the Senior Obligations. In the event that the Offtaker elects to purchase the Senior
Obligations, it shall (x) work in good faith with the Senior Agent and the Senior Lenders to agree
to documentation in respect of such purchase (it being understood and agreed that any such
purchase will be without recourse to or warranty from the Senior Agent and the Senior Lenders
other than as to title to the outstanding Senior Obligations and the Senior Security Documents)
and (y) close on such purchase with sixty (60) days of its election to purchase (such 60 day
period, the "Closing Period"). If (a) the Offtaker fails to elect to make the purchase within the
Election Period or (b) if it has made an election, fail to close the purchase during the Closing
Period, then the Offtaker shall no longer have any rights under this Section 2.4 and all such
rights shall be irrevocably terminated, provided, however, that if a Remedial Action is not
consummated within eighteen (18) months following the date of the expiration of the Closing
Period, Senior Agent must provide another notice and Election Period pursuant to the foregoing
terms. Nothing in this Section 2.4 shall affect in any manner the rights of the Senior Agent or
any Senior Lenders to take any action with respect to the Secured Obligations or the Senior
Collateral as they may decide in their sole and absolute discretion. In exercising its rights as
aforesaid, the Senior Agent and each Senior Lender shall not have any duties, obligations or
liabilities to the Offtaker, except as expressly provided herein or in the Consent. Nothing in this
Agreement modifies, impairs or shall be deemed a waiver of any rights or remedies the Senior
Agent or the Senior Lenders may have with respect to the Senior Collateral or under the Senior
Credit Documents.
ARTICLE III
OTHER AGREEMENTS
Section 3.1 Insurance and Condemnation Awards.
(a) The Senior Agent and the Senior Lenders shall have the sole and exclusive
right, subject to the rights of the Project Company and the other Obligors under the
Senior Credit Documents, to adjust, settle, direct or otherwise deal with any insurance
policy or proceeds therefrom covering or relating to the Senior Collateral and to approve
any award granted in any condemnation or similar proceeding affecting the Senior
Collateral.
(b) All the proceeds of any insurance policies and any awards relating to the
Senior Collateral shall be applied as provided in the Senior Credit Documents.
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(c) In the event that the Senior Agent or the Senior Lenders allow any portion
of such insurance proceeds or awards with respect to the Senior Collateral to be used by
the Project Company or any other Obligor to repair or replace the Senior Collateral
affected or for any other purposes, the Offtaker agrees to take all reasonable actions to
permit such use and shall not interfere therewith or claim any interest therein.
Section 3.2 No Obligation Owing to Offtaker.
(a) The Senior Agent and the Senior Lenders may, at any time, without the
consent of, or notice to, the Offtaker, without incurring any liabilities to the Offtaker and
without impairing or releasing any of their Liens in the Senior Collateral and other
benefits provided in this Agreement and the other Senior Credit Documents, do any one
or more of the following:
(i) change in any manner the Senior Obligations and the Senior Credit
Documents, including the manner, place or terms of payment or change or extend
the time of payment of, or renew, refinance, exchange, substitute, amend, settle,
compromise, increase the original principal amount of the Senior Obligations or
alter the terms of any of the Senior Obligations or any Lien in any of the Senior
Collateral, or any liability incurred, directly or indirectly in respect thereof;
(ii) sell, exchange, substitute, release, surrender, realize upon, enforce
or otherwise deal with in any manner and in any order any part of the Senior
Collateral or Senior Obligation, or any liability incurred directly or indirectly in
respect thereof; and
(iii) exercise or delay in or refrain from exercising any right or remedy
against all or any part of the Senior Collateral, the Project Company, or any other
Obligor or with respect to any Senior Credit Document or Senior Obligation.
(b) The Senior Agent and the Senior Lenders shall have no obligation
whatsoever to the Offtaker to assure the ownership, existence or genuineness of the
Senior Collateral, and the Senior Agent and the Senior Lenders shall have no obligation
whatsoever to the Offtaker to preserve the rights or benefits of any person (including the
Offtaker) in the Senior Collateral.
(c) Neither the Senior Agent nor the Senior Lenders shall be under any
obligation to the Offtaker to institute or defend any action, suit or other proceeding, or
take any other action against any person, in connection with any Senior Collateral. Each
Intercreditor Party shall be entitled to rely upon any writing or other document believed
by such Intercreditor Party to be genuine and correct and to have been signed, sent or
made by the proper person. Each Intercreditor Party may consult counsel with respect to
any question arising hereunder or in connection herewith and such Intercreditor Party
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shall not be liable for any action taken or omitted to be taken in good faith upon advice of
such counsel.
(d) All rights, interests, agreements and obligations of the Senior Agent and
Senior Lenders under this Agreement shall remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of the Senior Credit
Documents or any agreement or instrument relating thereto;
(ii) any taking, exchange, release or non -perfection of any collateral,
or any taking, release or amendment or waiver of or consent to or departure from
any guaranty or indemnity for all or any portion of the Senior Obligations;
(iii) any manner of application of collateral, or proceeds thereof, to all
or any portion of the Senior Obligations, or any manner of sale or other
disposition of any collateral for all or any portion of the Senior Obligations or any
other assets of the Project Company or any other Obligor;
(iv) any change, restructuring or termination of the corporate structure
or existence of the Project Company or any other Obligor; or
(v) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, either of the Project Company or any other Obligor
in respect of the Senior Obligations in respect of this Agreement.
Section 3.3 Insolvency Proceedings. In connection with any Insolvency Proceeding,
the Senior Agent and the Senior Lenders, with respect to the Senior Obligations and the Senior
Credit Documents, on the one hand, and the Offtaker, with respect to the Subordinated
Obligations and the Subordinated Security Documents, on the other hand, agree as follows:
(a) Filing of Claims. The Offtaker may file proofs of claim with respect to
the Subordinated Obligations, subject to the limitations contained in this Agreement.
Offtaker shall not make or consent to any filing or motion, or vote or take any other
action, including without limitation, voting in favor of any plan of reorganization, which
would have the effect of (a) modifying or abrogating any of the rights or interests of the
Senior Agent or Senior Lenders under this Agreement, or (b) adversely affecting Senior
Agent or Senior Lenders' rights or remedies under the Senior Credit Documents,
provided, however, that enforcing the terms of this Agreement shall not be deemed to
have an adverse effect.
(b) Automatic Stay. The Offtaker shall not seek relief from the automatic or
any other stay in any Insolvency Proceeding in connection with the enforcement of any of
its rights and remedies under any of the Subordinated Security Documents or otherwise
with respect to the Senior Collateral; provided, however, that in the event that failure to
take such action with respect to any Senior Collateral by the Offtaker would cause the
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loss of any of its rights under any Subordinated Security Documents, the Offtaker may
take such action to preserve such right so long as the exercise of such right is not
commenced until after this Agreement is terminated.
(c) Distributions.
(i) In the event of any distribution, division, or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or any
part of the assets of the Project Company or the proceeds thereof to the creditors
of the Project Company or readjustment of the obligations and indebtedness of the
Project Company, whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors, marshaling of assets of the
Project Company or any other action or proceeding involving the readjustment of
all or any part of the Senior Obligations or Subordinated Obligations or the
application of the assets of the Project Company to the payment or liquidation
thereof, or upon the dissolution or other winding up of the Project Company's
business, or upon the sale of all or substantially all of the Project Company's
assets, then, and in any such event, (i) the Senior Agent and the Senior Lenders
shall first receive payment in full of all Senior Obligations prior to the payment of
all or any part of the Subordinated Obligations, (ii) any payment or distribution of
any kind or character, whether in cash, property or securities, by set-off,
counterclaim or otherwise, to which the Offtaker would be entitled with respect to
the Subordinated Obligations but for the provisions of this Agreement, shall be
paid or delivered by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the Senior Agent, to the extent necessary to make
payment in full of all Senior Obligations remaining unpaid after giving effect to
any concurrent payment or distribution to the Senior Lenders, and (iii) in the
event that, notwithstanding the foregoing provisions of this Agreement, Offtaker
shall have received any payment or distribution of any kind or character, whether
in cash, property or securities, by set-off, counterclaim or otherwise with respect
to the Subordinated Obligations before all Senior Obligations are paid in full, then
and in such event such payment or distribution shall be deemed to be the property
of, segregated, received and held in trust for the benefit of and shall be forthwith
paid over or delivered to the Senior Agent for application in the manner received
to the payment of all Senior Obligations remaining unpaid until all such Senior
Obligations shall have been paid in full.
(ii) Until the full and final payment of the Senior Obligations, the
Offtaker shall not seek to cause the Project Company to confirm or vote in favor
of a plan of reorganization pursuant to Section 1129(b)(i) of the Bankruptcy Code
that fails to provide for the full and final payment of the Senior Obligations on the
effective date of such confirmed plan of reorganization. In addition, Offtaker
shall not contest (or support any other person or entity contesting) (a) any request
by Senior Agent for adequate protection pursuant to Section 361 of the
Bankruptcy Code or otherwise, (b) any objection by Senior Agent or Senior
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Lenders to any motion, relief, action or proceeding based on the Senior Lenders
claiming a lack of adequate protection pursuant to Section 361 of the Bankruptcy
Code or otherwise, (c) the entry of any cash collateral order in favor of the Senior
Lenders, (d) the entry of any financing order in favor of the Senior Lenders under
Section 364 of the Bankruptcy Code or otherwise, (e) an election by the Senior
Lenders pursuant to Section 1111(b) of the Bankruptcy Code, or (f) any claim
submitted in any proceeding by Senior Agent or Senior Lenders, or any valuation
of the Senior Collateral submitted by Senior Agent or Senior Lenders in such
proceeding. Senior Agent shall give Offtaker such notice of the foregoing actions
as may be required by the Bankruptcy Code.
(iii) The Senior Obligations shall continue to be treated as Senior
Obligations and the provisions of this Agreement shall continue to govern the
relative rights and priorities of the Senior Lenders and the Offtaker even if all or
part of the Senior Obligations or the security interests securing the Senior
Obligations are subordinated, set aside, avoided, declared to be fraudulent or
preferential, or disallowed in connection with any Insolvency Proceeding. This
Agreement shall be reinstated if at any time any payment of any of the Senior
Obligations is rescinded or must otherwise be returned by any holder of Senior
Obligations or any representative of such holder.
Section 3.4 Waivers.
(a) No right of the Senior Agent or any Senior Lender to enforce the Lien
subordination in any Senior Collateral or Remedial Action with respect thereto in respect
of any Senior Collateral as provided in this Agreement shall in any manner be prejudiced
or impaired by any act or failure to act on the part of the Project Company or by any act
or failure to act by the Senior Agent or any Senior Lender, or by any noncompliance by
any person with the terms, provisions and covenants of any of the Senior Credit
Documents or any of the Subordinated Security Documents, regardless of any knowledge
thereof which the Senior Agent or any Senior Lender may have or be otherwise charged
with.
(b) Offtaker hereby waives, to the fullest extent permitted by law, any claim it
may have against the Senior Agent or any Senior Lender arising out of or with respect to
any action which the Senior Agent or any Senior Lender may take or permit or omit to
take with respect to: (i) the Senior Credit Documents, (ii) collection of the Senior
Obligations, (iii) the Project Company, (iv) the Senior Collateral, (v) any Remedial
Action or the enforcement of any right or remedy under the Senior Credit Documents, or
(vi) as a result of any other actions otherwise permitted pursuant to this Agreement
(including, without limitation, Section 2.4), in each case not including any claims arising
out of Senior Agent's or Senior Lenders' gross negligence or willful misconduct. The
Offtaker agrees that the Senior Agent and the Senior Lenders have no duty to it in respect
of the maintenance or preservation of the Senior Collateral or any rights of any person
therein or in respect of the application of any proceeds of any loans or other financial
accommodations extended under the Senior Credit Documents. The Senior Agent and
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the Senior Lenders agree that, except as set forth in this Agreement and the Consent, the
Offtaker shall have no obligation owing to the Senior Agent and the Senior Lenders.
(c) The Offtaker agrees not to assert and hereby waives, to the fullest extent
permitted by law, any right to contest the validity, priority or enforceability of the Senior
Security Documents, or to demand, request, plead or otherwise assert or otherwise claim
the benefit of, any marshaling, appraisement, valuation or other similar right that may
otherwise be available under Applicable Law with respect to the Subordinated
Obligations or any other similar rights a junior secured creditor may have under
Applicable Law with respect to the Subordinated Obligations.
(d) The Offtaker hereby waives any defense based on the adequacy of a
remedy at law which might be asserted as a bar to the remedy of specific performance of
this Agreement in any action brought therefor by the Senior Agent or any Senior Lender.
Section 3.5 Information Concerning the Project Company, etc. To the extent it
deems necessary, each Intercreditor Party (other than the Senior Agent) shall be responsible, to
the extent applicable, for keeping itself informed of (a) the financial condition of the Project
Company and all endorsers and/or guarantors of the Subordinated Obligations or the Senior
Obligations, as the case may be, and (b) all other circumstances bearing upon the risk of
nonpayment of the Subordinated Obligations or the Senior Obligations, as the case may be. No
Intercreditor Party shall have any present or future duty or responsibility to any other
Intercreditor Party to advise them of information known to it regarding the financial condition of
Project Company or of any circumstances bearing upon the risk of nonpayment of the Senior
Obligations or the Subordinated Obligations. If any such information is conveyed by any
Intercreditor Party to any other Intercreditor Party, such Intercreditor Party shall have no
continuing duty or responsibility to advise such other Intercreditor Party of any inaccuracy in
such information that it subsequently discovers or of any updated or subsequent information,
whether or not of like kind.
Section 3.6 No Rights of Subrogation. No payment or distribution to the Senior
Agent or any Senior Lender shall entitle the Offtaker to exercise any right of subrogation until
the Senior Obligations shall have been paid in full.
Section 3.7 Application of Payments. All proceeds arising from any Remedial Action
with respect to any Senior Collateral (whether or not resulting from or after an Insolvency
Proceeding) shall be applied, first, to the payment of the Senior Obligations in the manner
provided in the Senior Credit Documents until they have been paid in full in cash and without
prejudice to Section 3.3(c), second, to the extent required by Applicable Law, to the payment of
the Subordinated Obligations until they are paid in full in cash. Senior Agent agrees that prior to
any distribution by Senior Agent of any proceeds arising from any Remedial Action to any party
other than the Senior Agent and Senior Lenders, Senior Agent shall notify the Offtaker of such
distribution at least fifteen (15) days prior to the distribution to the extent practicable.
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Section 3.8 Independent Decisions. Each Intercreditor Party has, independently and
without reliance on any other Intercreditor Party, and instead in reliance upon information
supplied to it on behalf of the Project Company and upon such other information as it has
deemed appropriate, made its own independent decision to enter into its Credit Documents and
to enter into its obligations to the Project Company thereunder; and each Intercreditor Party
shall, independently and without reliance upon any other Intercreditor Party, continue to make its
own independent analysis and decisions in acting or not acting under its Credit Documents and
this Agreement; provided, however, it is understood that the Senior Agent is not making any
extension of credit and is acting solely at the discretion of the Senior Lenders pursuant to the
terms of the Senior Credit Agreement; further, provided, however, that the Offtaker has no
obligation to provide any extension of credit.
Section 3.9 Turnover of Prohibited Transfers. If any Senior Collateral is received by
the Offtaker in violation of the terms of this Agreement, such Senior Collateral shall, without the
necessity of demand or request by the Senior Agent, be delivered forthwith by the Offtaker to the
Senior Agent for application to the Senior Obligations, in the form received, except for the
addition of any endorsement or assignment necessary to effect a transfer of all rights therein to
such other party. Until so delivered, any Senior Collateral shall be held by the Offtaker in trust
for the Senior Agent and shall not be commingled with other funds or property of the Offtaker.
Section 3.10 Effectiveness During Insolvency Proceeding. This Agreement shall
continue in full force and effect notwithstanding any Insolvency Proceeding, and shall apply with
full force and effect with respect to all Senior Collateral acquired by the Project Company and to
all Senior Obligations and Subordinated Obligations incurred by the Project Company from and
after the initiation of any such Insolvency Proceeding.
Section 3.11 Amendments. The Offtaker shall not amend, supplement or otherwise
modify, without the consent of the Senior Agent, the terms of any of its Subordinated Security
Documents, or enter into any other agreement having the effect of doing so in a manner that
would adversely affect the rights of the Senior Agent pursuant to this Agreement. Offtaker may
also, without the consent of the Senior Agent, amend, supplement or otherwise modify the
Subordinated Security Documents to correct any technical errors or omissions contained therein
which are also corrected in the Senior Credit Documents.
Section 3.12 Indulgences Not Waivers. Neither the failure nor any delay on the part of
the Senior Agent or any Senior Lender to exercise any right, remedy, power or privilege
hereunder or under any instruments, documents or agreements evidencing or relating to any of
the Senior Obligations shall operate as a waiver thereof or give rise to an estoppel, nor be
construed as an agreement to modify the terms of this Agreement, nor shall any single or partial
exercise of any right, remedy, power or privilege with respect to any occurrence be construed as
a waiver of such right, remedy, power or privilege with respect to any other occurrence. No
consent or waiver by a party hereunder shall be effective unless it is in writing and signed by the
party making such consent or waiver, and then only to the extent specifically stated in such
writing.
Section 3.13 Duration and Termination; Payment Invalidated.
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(a) This Agreement shall constitute a continuing agreement and shall terminate
with respect to the Senior Agent and the Senior Lenders only upon the final payment in
full of each of the Construction Loan Facilities and the Bridge Loan Facilities (each as
defined in the Senior Credit Agreement) and the termination of the commitments
thereunder. The agreements set forth herein shall remain in full force and effect
regardless whether the Offtaker, the Senior Agent or any Senior Lender in the future
seeks to rescind, amend, terminate or reform, by litigation or otherwise, its agreements
with the Project Company or any other Obligor. The termination of this Agreement shall,
subject to clause (b), release fully and irrevocably all parties hereto from any and all
liabilities (including, without limitation, the validity of this Agreement on an ongoing
basis), duties and responsibilities hereunder to the same extent as if this Agreement had
been fully terminated by all the parties hereto, provided that the foregoing shall not
release any of the parties with respect to any obligations arising prior to such termination;
provided further that this Section 3.13 is subject, and without prejudice, to and shall not
release, any rights or obligations the Project Company may have in respect of the Power
Purchase Agreement and the Subordinated Security Documents.
(b) In the event that this Agreement is terminated with respect to the Senior
Agent and the Senior Lenders, as provided in clause (a), and the Senior Agent or any
Senior Lender shall be required by a court or other tribunal of competent jurisdiction to
disgorge, refund, rebate or otherwise return any amount received with respect to any of
the Senior Collateral to any debtor-in-possession or trustee in respect of any Insolvency
Proceeding or any other person (whether as the result of such payment constituting, or
being alleged to constitute, a preference, a fraudulent conveyance or any other payment
required to be disgorged pursuant to any such Insolvency Proceeding) then, in any such
event, (i) the terms and conditions of this Agreement shall be reinstated, notwithstanding
any prior termination of this Agreement pursuant to this Section, and (ii) all provisions of
this Agreement shall once again be operative until all such Senior Obligations are again
paid in full in cash.
Section 3.14 Subordinated Security Documents and Senior Security Documents. The
Offtaker confirms that it has delivered to the Senior Agent true and correct copies of the
Subordinated Security Documents, in each case as in effect on the date hereof, and all UCC
financing statements and other filings to perfect its security interest in the Senior Collateral. The
Senior Agent confirms that it has delivered to the Offtaker true and correct copies of the Senior
Security Documents, in each case as in effect on the date hereof, and all UCC financing
statements and other filings to perfect its security interest in the Subordinated Collateral.
Section 3.15 New Agreement. In connection with any assignment or transfer of any or
all of the Senior Obligations (including any refinancing or replacement thereof or any debtor-in-
possession financing provided to the Project Company by the Senior Lender), the Offtaker
agrees, to execute and deliver an agreement containing terms identical to those contained herein
in favor of any such assignee or transferee and, in addition, will execute and deliver an
agreement containing terms identical to those contained herein in favor of any third person who
succeeds to or replaces any or all of the financing provided under the Senior Credit Documents,
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whether such successor financing or replacement occurs by transfer, assignment, "takeout" or
any other means or vehicle, in each circumstance to which this Section 3.15 applies, if and only
to the extent, Offtaker would be required to execute a new or replacement subordination
agreement for the benefit of such parties under the terms of the Power Purchase Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Conflict. In the event of any conflict between the terms of any of the
Senior Credit Documents or the Subordinated Security Documents and the terms of this
Agreement, the terms of this Agreement shall control; provided, that this Agreement is not
intended to amend or supersede the terms of the Consent. In the event of any conflict between
the terms of this Agreement and the Consent, the Consent shall govern and control. The parties
hereto acknowledge and agree that, subject to and without limiting the immediately preceding
sentence of this Section 4.1, but notwithstanding any other provision of this Agreement, so long
as no Default exists under the Power Purchase Agreement upon transfer of the Project or the
Project assets pursuant to any foreclosure or sale or conveyance in lieu of foreclosure of the
Senior Collateral (it being acknowledged and agreed that if Offtaker irrevocably waives any
Default of the Project Company under the Power Purchase Agreement, no such Default shall be
deemed to exist), the designee(s) or assignee(s) of the Project or Project Assets shall assume the
Project Company's (or its designee's or assignee's) rights under Power Purchase Agreement and
the rights and obligations of the parties under the Option Agreement and the Land Option
Agreement shall remain in full force and effect.
Section 4.2 Benefit of Agreement, etc. This Agreement is entered into only for the
benefit of the parties hereto, and their respective successors and assigns, and no benefit shall
accrue or is intended with respect to any other third party, including, without limitation, the
Project Company or any trustee in bankruptcy for the Project Company. This Agreement is
intended only to define the rights and obligations of the Offtaker, on the one hand, and the Senior
Agent and the Senior Lenders, on the other hand, in the Senior Collateral and the other matters
set forth expressly herein, and this Agreement shall in no way affect or impair the rights and
obligations of the Intercreditor Parties or the Project Company under the Power Purchase
Agreement, Senior Credit Documents or the Subordinated Security Documents.
Section 4.3 Amendment; No Waiver. This Agreement may be amended, modified or
supplemented, but only by a written agreement signed by the parties hereto. Any waiver or
consent shall be effective only in the specific instance and for the specified purpose for which
given. A waiver or consent shall be effective only if it is in writing and signed by the party
giving the waiver or consent.
Section 4.4 Successors and Assigns. All the covenants, terms and agreements in this
Agreement shall bind and inure to the benefit of the respective successors and assigns of the
Offtaker and the Senior Agent. The Offtaker shall not assign all or any part of its rights and
obligations under the Subordinated Security Documents to any person unless such person agrees
in writing to be bound by all the terms of this Agreement. The Senior Agent shall not assign all
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or any part of its rights and obligations under the Senior Security Documents to any person
unless such person agrees in writing to be bound by the terms of this Agreement.
Section 4.5 Severability. In the event any provision of this Agreement is determined
to be void, unlawful, or otherwise unenforceable, that provision shall be severed from the
Agreement, and the remainder of this Agreement shall be interpreted and constructed in such a
manner as if a provision containing terms as nearly like the void, unlawful, or unenforceable
provision as possible replaced such severed provision, and the Agreement, as so interpreted and
constructed, shall continue to be in full force and effect. If the application of any provision of
this Agreement to any person or circumstance is determined to be void, unlawful, or
unenforceable, then that provision remains valid, lawful, and enforceable as applied to other
persons and circumstances.
Section 4.6 Notices. All notices, requests, demands or other communications
hereunder shall be in writing and shall be delivered personally, by facsimile, as a ".PDF"
attachment to an electronic mail, or by reputable express courier service addressed to the relevant
party hereto at the address stated below or at any other address notified by the party to the other
as its address for purposes of this Agreement. Any communication so given personally and any
notice so given by express courier service shall be deemed to have been delivered on the date of
receipt of the intended recipient. As proof of such delivery it shall be sufficient to produce a
receipt showing personal service or the receipt of a reputable courier company showing the
correct address of the addressee.
If to the Senior Agent:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 16th Floor
MS: NYC60-1630
New York, NY 10005
Attention: Project Finance Agency Services — RE Astoria 2 LLC
Fax: 732-578-4636
If to the Offtaker:
Southern California Public Power Authority
1160 Nicole Court
Glendora, CA 91740
Attention: Executive Director
Facsimile: (626) 704-9461
Tel: (626) 793-9364
Email: bcarnahan@scppa.org, shomer@scppa.org,
knguyen@scppa.org
Section 4.7 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
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CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN
SUCH STATE.
Section 4.8 Consent to Jurisdiction. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS FOR ITSELF AND ITS
PROPERTY TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA SITTING IN THE COUNTY OF LOS
ANGELES, AND ANY APPELLATE COURT FROM ANY OF THE FOREGOING COURTS
FOR PURPOSES OF ALL LEGAL SUITS, ACTIONS, AND PROCEEDINGS ARISING OUT
OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HEREBY IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION OR DEFENSE WHICH IT MAY NOW OR
HEREAFTER HAVE TO (A) THE LAYING OF VENUE IN SUCH A COURT, (B) ANY
CLAIM THAT SUCH A COURT IS AN INCONVENIENT FORUM, (C) LACK OF
PERSONAL, IN REM OR QUASI IN REM JURISDICTION, OR (D) ANY SIMILAR
GROUNDS.
Section 4.9 Intentionally Omitted.
Section 4.10 Counterparts; Electronic Delivery. This Agreement may be executed in
one or more counterparts, each of which shall be an original but all of which, taken together,
shall constitute only one legal instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one counterpart.
Section 4.11 Further Assurances. The Offtaker, on the one hand, and the Senior
Agent, on the other hand, agree to execute such further documents and agreements as may be
reasonably requested by the other to give effect to the purposes of this Agreement.
Section 4.12 Reliance. The consent by the Senior Lenders to the execution and
delivery of the Subordinated Security Documents and the grant to the Offtaker of a Lien in the
Senior Collateral shall be deemed to have been made in reliance upon this Agreement. The
Offtaker expressly waives all notice of the acceptance of and reliance on this Agreement by the
Senior Agent and the Senior Lenders.
Section 4.13 [Reserved].
Section 4.14 Application to Other Agreements between Offtaker and Project
Company. The parties hereto acknowledge that this Agreement is not intended to, and shall not,
apply to any agreements, contracts or other arrangements (including, without limitation,
interconnection agreements, transmission agreements, construction services agreements,
easement agreements, and retail service agreements) between Offtaker and the Project Company
other than the Subordinated Obligations and the Subordinated Security Documents. For the
avoidance of doubt and notwithstanding anything in this Agreement to the contrary, nothing in
this Agreement will be deemed to amend or otherwise modify the Project Company's rights and
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obligations under and pursuant to the Senior Credit Documents, the Power Purchase Agreement,
the Subordinated Security Documents or any other document or instrument entered into between
the Project Company and one or more Intercreditor Parties. Further, for the avoidance of doubt
and notwithstanding anything in this Agreement to the contrary, nothing in this Agreement will
be deemed to amend or otherwise modify the Offtaker's rights and obligations between itself and
the Project Company under and pursuant to the Land Option Agreement or any deed of trust that
secures the Land Option Agreement.
Section 4.15 Acknowledgment by the Project Company. By executing the
acknowledgment to this Agreement, the Project Company acknowledges the rights and
obligations of the Intercreditor Parties hereunder and shall not, either directly or indirectly, take
any action to challenge the enforceability or validity of this Agreement; provided that, except as
expressly set forth in this sentence, the Project Company shall have no obligations pursuant to, or
liability under or in connection with, the terms of this Agreement. Notwithstanding the
foregoing, the Project Company is not a party to this Agreement and a separate acknowledgment
by the Project Company shall not be required with respect to any amendment, supplement or
waiver hereto; provided that the Project Company, by its acknowledgement hereof, will not be
deemed to have acknowledged or agreed to any such amendment, supplement or waiver until it
has received a copy of any such amendment, supplement or waiver.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
SENIOR AGENT:
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Collateral Agent for the Secured Parties
By: Deutsche Bank National Trust Company
By:
Name:
Title:
By:
Name:
Title:
[Signature Page to Intercreditor and Subordination Agreement)
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OFFTAKER:
SOUTHERN CALIFORNIA PUBLIC
POWER AUTHORITY
By:
Name:
Title:
POWER AND WATER RESOURCES
POOLING AUTHORITY
By:
Name:
Title:
CITY OF LODI
By:
Name:
Title:
Approved as to form
CITY OF CORONA
City Attorney
By:
Name:
Title:
{Signature Page to Interereditor and Subordination Agreement]
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CITY OF MORENO VALLEY
By:
Name:
Title:
CITY OF RANCHO CUCAMONGA
By:
Name:
Title:
[Signature Page to Intercreditor and Subordination Agreement)
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ACKNOWLEDGED AND AGREED:
RE ASTORIA 2 LLC
By:
Name:
Title:
[Signature Page to Intercreditor and Subordination Agreement)
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STATE OF }
}ss
COUNTY OF }
On , 2015 before me, , a Notary
Public, personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Commission #:
Commission Expiration:
OHSUSA:761590290.14
(Seal)
EXHIBIT A
#4842-0527-7211
#4845-1598-0578v12
STATE OF NEW JERSEY
ss:
COUNTY OF HUDSON
On the day of , in the year 2015 before me, the undersigned, a Notary Public in and for said
State, personally appeared and
Authorized Signatories for Deutsche Bank National Trust Company on behalf of Deutsche Bank
Trust Company Americas, personally known to me or proved to me on the basis of satisfactory
evidence to be the individuals whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their capacities, and that by their signatures
on the instrument, the individuals, or the persons or entities upon behalf of which the individual
acted, executed the instrument.
Notary Public
7929378 3
EXHIBIT A
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RESOLUTION NO. 2015-204
A RESOLUTION OF THE LODI CITY COUNCIL APPROVING A COLLATERAL
ASSIGNMENT OF THE POWER PURCHASE AGREEMENT TO PERMIT
FINANCING OF THE ASTORIA 2 SOLAR PROJECT BY EFS RENEWABLES
HOLDINGS, LLC AND APPROVING RELATED AMENDMENTS TO THE
EXISTING POWER PURCHASE AGREEMENT TO EFFECTUATE SUCH
FINANCING AS CONTAINED IN A CONSENT AND AGREEMENT; A
NON -DISTURBANCE AND ATTORNMENT AGREEMENT; AND AN
INTERCREDITOR AND SUBORDINATION AGREEMENT; AND DIRECTING
THE CITY MANAGER TO EXECUTE SAID AGREEMENTS
WHEREAS, on June 18, 2014, the Lodi City Council approved a Power Purchase
Agreement (PPA) with RE Astoria 2 LLC, a wholly-owned subsidiary of Recurrent Energy, to
purchase 10 MW of energy and capacity, and associated environmental attributes, to be
generated by RE Astoria 2 LLC from the Astoria 2 Solar Project for a period of 20 years at a
fixed price of $64 per MWh; and
WHEREAS, in addition to RE Astoria 2 LLC as Seller and the City of Lodi, the other
parties to the PPA are the Southern California Public Power Authority (SCPPA), Power and
Water Resources Pooling Authority (PWRPA), and the cities of Corona, Moreno Valley and
Rancho Cucamonga (Cities). SCPPA, PWRPA, Cities, and the City of Lodi are jointly the buyers
(Buyers) under the PPA; and
WHEREAS, the Astoria 2 Solar Project is a 75 MW photovoltaic plant currently under
construction which will assist the Lodi Electric Utility (LEU) with meeting its Renewables
Portfolio Standard obligations; and
WHEREAS, RE Astoria 2 LLC has requested the consent of the Buyers to a collateral
assignment of the PPA for the Astoria 2 Solar Project to reflect the ownership interest of a
proposed new tax equity investor, EFS Renewables Holdings, LLC, a wholly-owned subsidiary
of General Electric Corporation, which requires the consent of the Buyers; and
WHEREAS, the PPA provides the Buyers' consent shall not be unreasonably withheld;
and
WHEREAS, EFS Renewables Holdings, LLC, has requested certain limited
amendments to the PPA be approved by RE Astoria 2 LLC and the Buyers, as indicated in the
Consent and Agreement in order to secure financing from its construction lender Deutsche Bank
Trust Company Americas (DBTC); and
WHEREAS, DBTC has further requested that RE Astoria 2 LLC and the Buyers approve
a Non -Disturbance and Attornment Agreement and an Intercreditor and Subordination
Agreement to protect DBTC's rights in the event of default by RE Astoria 2 LLC or EFS
Renewables Holdings, LLC, as a condition of its loan; and
WHEREAS, the Non -Disturbance and Attornment Agreement also includes as a party,
RE Astoria 2 Landco LLC, an additional wholly-owned subsidiary of Recurrent Energy and the
owner of the property on which the Astoria 2 Solar Project is being constructed; and
WHEREAS, in consideration of the requested contractual amendments and approvals,
RE Astoria 2 LLC has agreed to provide to the Buyers, including the City of Lodi, a $1 per MWh
reduction in price as reflected in the proposed Consent and Agreement; and
WHEREAS, each of the Consent and Agreement, Non -Disturbance and Attornment
Agreement, and Intercreditor and Subordination Agreement were presented to the Risk
Oversight Committee at their November 9, 2015 meeting and unanimously recommended
City Council approval.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby approve
a collateral assignment of the Power Purchase Agreement to permit financing of the Astoria 2
Solar Project by EFS Renewables Holdings, LLC; and
BE IT FURTHER RESOLVED that the Lodi City Council does hereby approve related
amendments to the existing Power Purchase Agreement to effectuate such financing as
contained—in—the—following—agreements, approves--the-following--agreements, and directs—the-
City Manager to execute them on behalf of the City of Lodi, with any non -substantial changes
recommended and approved by the City Attorney:
1 Consent and Agreement among Southern California Public Power Authority
(SCPPA), Power and Water Resources Pooling Authority (PWRPA), City of Lodi,
City of Corona, City of Moreno Valley, and City of Rancho Cucamonga (jointly
identified in the said agreement as Contracting Parties); and RE Astoria 2 LLC
(identified in the said agreement as Project Company), Deutsche Bank Trust
Company Americas (DBTC) (identified in the said agreement as Collateral Agent)
and EFS Renewables Holdings, LLC (identified in the said agreement as Class A
Member); and
2. Non -Disturbance and Attornment Agreement among RE Astoria 2 LandCo LLC
(identified in said agreement as Owner), RE Astoria 2 LLC (identified in said
agreement as Lessee), DBTC (identified in said agreement as Collateral Agent);
and SCPPA, PWRPA, City of Lodi, City of Corona, City of Moreno Valley, and
City of Rancho Cucamonga (jointly identified in the said agreement as Fee
Secured Party); and
3. Intercreditor and Subordination Agreement among SCPPA, PWRPA, City of Lodi,
City of Corona, City of Moreno Valley, and City of Rancho Cucamonga (jointly
identified in said agreement as Offtaker) and DBTC (identified in said agreement
as Senior Agent).
BE IT FURTHER RESOLVED that the Lodi City Council authorizes the City Manager to
execute and deliver any and all other documents and instruments and to do and cause to be
done any and all acts and things necessary or advisable for carrying out the transactions
contemplated by this Resolution for the Astoria 2 Solar Project, for the benefit of the City and
the other parties to the aforementioned agreements with administrative duties performed by the
Electric Utility Director.
Dated: November 18, 2015
I hereby certify that Resolution No. 2015-204 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held November 18, 2015, by the following vote:
AYES: COUNCIL MEMBERS — Chandler, Kuehne, Mounce, Nakanishi, and
Mayor Johnson
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
,B'NNIFER A!!- FERRAIOLO
City Clerk
2015-204