Exhibit 10.10
ExecutionVersion
SIXTHAMENDMENT TOCREDIT AGREEMENT
ThisSIXTHAMENDMENTTOCREDITAGREEMENT(this“Agreement”),datedasof June25,2024,byandamongGSRPWAREHOUSEILLC,aDelawarelimitedliabilitycompany (the “Borrower”), the lenders party to the Credit Agreement constituting the Required Lenders (collectively, the “Lenders” and individually, a “Lender”) and MUFG BANK, LTD., as administrative agent (in such capacity, together with its successors and assigns, the “Administrative Agent”).
PRELIMINARYSTATEMENTS:
A.ReferenceismadetothatcertainCreditAgreement,datedasofFebruary23,2021,byand among the Borrower, the Lenders, the Issuing Banks, the Administrative Agent, the CollateralAgentandtheDepositaryBank,asamendedby(a)theAmendmentandWaiver to Credit Agreement, dated as of May 12, 2021, (b) the Second Amendment to Credit Agreement and Amendment to Depositary Agreement, dated as of May 27, 2021, (c) the Third Amendment to Credit Agreement, dated as of August 4, 2022, (d) the Fourth Amendment and Waiver No. 3 to Credit Agreement, dated as of September 16, 2022, and (e)theFifthAmendmenttoCreditAgreement,datedasofDecember28,2022(asamended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”).
B.TheBorrowerhasrequestedthattheCreditAgreementbeamendedinthemannersetforth herein.
C.The Lenders constituting the Required Lenders under the Credit Agreement and the Administrative Agent are willing to agree to this Agreement on the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. DefinedTerms.CapitalizedtermsdefinedintheCreditAgreement,as amended hereby, and used (but not otherwise defined) herein are used herein as so defined therein.
Section2.Amendment to Credit Agreement.Subject to Section 3hereof, as of the Effective Date, the definition of Deemed Investment Grade Power Purchaser in Section 1.01 of the Credit Agreement is hereby amended by inserting the words shown below in bold italics:
“Deemed Investment Grade Power Purchaser” means any Power Purchaser that does not have an Investment Grade Rating but (i) has an equivalent shadow rating or (ii) whose obligations under the applicable Power Purchase Agreement are fully and unconditionally guaranteed pursuant to a validly executed parent company guarantee informandsubstancereasonablysatisfactorytotheRequiredLendersanddeliveredto the Administrative Agent, which guarantee is made by a direct or indirect parent companyofsuchPowerPurchaserthathasanInvestmentGradeRatingoran
equivalentshadowrating(an“ApprovedPPAGuarantor”andsuchguaranteeexecuted thereby, an “Approved PPA Guarantee”), in each case, as determined in good faith by the Borrower and agreed by the Required Lenders based upon a review of information reasonably requested by the Required Lenders to facilitate such determination; provided, thatsuchPowerPurchasershallnolongerbeaDeemedInvestmentGradePowerPurchaser if, at any time, the Required Lenders determine, including based on the documents and other information provided by the Borrower in accordance with Section 6.02(j), that a changeinthecreditqualityofsuchPowerPurchaserorrelatedApprovedPPAGuarantor, as applicable, has occurred that would reasonably be expected to result in a reduction in the Borrower’s aggregate Net Cash Flow by five percent (5%) or more in respect of any period of four consecutive Fiscal Quarters; providedfurther, that any Power Purchaser underclause(ii)hereof(A)shallonlybeaDeemedInvestmentGradePowerPurchaser with respect to the particular Power Purchase Agreement for which an Approved PPA Guarantee has been delivered to the Administrative Agent, and (B) shall cease to be a Deemed Investment Grade Power Purchaser with respect to each applicable Power PurchaseAgreementupontheterminationorexpirationoftheapplicableApprovedPPA Guarantee for such Power Purchase Agreement.
Section3.EffectiveDate.ThisAgreementshallbecomeeffectiveonthedateonwhich theAdministrativeAgenthasreceiveddulyexecutedcounterpartsofthisAgreementfromeachof thepartieshereto,which shallcorrespond with thedate firstwritten above(the “Effective Date”).
Section4.Representations and Warranties. To induce the other parties hereto to enter into this Agreement, the Borrower hereby represents and warrants that:
(a) Each representation and warranty of the Borrower under the Financing Documents is true and correct in all material respects as if made on the date hereof, unless such representation or warranty expressly relates solely to an earlier date, in which case it was true and correct in all material respects as of such earlier date;
(b) the Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement, this Agreement has been duly executed anddeliveredbytheBorrower,andthisAgreementisthelegal,validandbindingobligationofthe Borrower, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar laws affecting the enforcement of creditors' rights generally and by principles of equity;
(c) after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing;
(d) the execution, delivery and performance by the Borrower of this Agreement(a)havebeendulyauthorizedbyallnecessaryorganizationalactiononthepartofthe Borrower; and (b) do not and will not (i) contravene the terms of any of the Borrower's Organization Documents; (ii) conflict with or result in any breach or contravention of (A) any ContractualObligationtowhichtheBorrowerisapartyortowhichthepropertiesoftheBorrower or any of its Subsidiaries are subject, or (B) any order, injunction, writ or decree of any GovernmentalAuthorityoranyarbitralawardtowhichtheBorroweroritspropertyissubject,
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except,withrespecttoclause(b)(ii),totheextentsuchconflict,breachorcontraventioncouldnot reasonablybeexpectedtohaveaMaterialAdverseEffect;(iii)resultin,orrequire,thecreationof anyLienuponanyofthematerialpropertiesorassetsoftheBorrower(otherthananyLienscreated underanyoftheCollateralDocumentsandotherPermittedLiens);or(iv)violate,inanymaterial respect, any Law applicable to the Borrower or any of its Subsidiaries; and
(e) no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, deliveryorperformancebytheBorrowerofthisAgreement,exceptfor(i)thosethathavealready been obtained or made, and (ii) those which, if not obtained or made, would not reasonably be expected to have a Material Adverse Effect.
Section5.CostsandExpenses.WithoutlimitingtheobligationsoftheBorrowerunder theCreditAgreement,eachpartyheretoagreesthatallreasonableout-of-pocketexpensesincurred by the Secured Parties (including the reasonable fees, charges and disbursements of counsel and consultants) in connection with the preparation, execution, delivery and administration, modification and amendment of this Agreement and the other instruments and documents to be delivered hereunder or in connection herewith (including the reasonable fees, charges and disbursements of one counsel for the Administrative Agent), are expenses that the Borrower is required to pay or reimburse pursuant to Section 10.05(a) of the Credit Agreement.
Section 6. Referenceto andEffect on theRelevant Financing Documents.
(a) OnandaftertheeffectivenessofthisAgreementontheEffectiveDate,each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this Agreement.
(b) The Credit Agreement as specifically amended by this Agreement is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. This Agreement shall be a “Financing Document” for purposes of the definition thereof in the Credit Agreement.
(c) Except as specifically provided herein, the execution, delivery and effectiveness of this Agreement on the Effective Date shall not operate as a waiver of any right, powerorremedyofanyLenderunderanyoftheFinancingDocuments,norconstituteawaiverof any provision of any of the Financing Documents.
Section7.Severability.If any provision of this Agreement or the other Financing Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Financing Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economiceffectofwhichcomesascloseaspossibletothatoftheillegal,invalidorunenforceable provisions.The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceablesuchprovisioninanyotherjurisdiction.Withoutlimitingtheforegoingprovisions ofthisSection7,ifandtotheextentthattheenforceabilityofanyprovisionsinthisAgreement
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relatingtoDefaultingLendersshallbelimitedbyDebtorReliefLaws,asdeterminedingoodfaith bytheAdministrativeAgent,thensuchprovisionsshallbedeemedtobeineffectonlytotheextent not so limited.
Section8.Headings. Sectionheadingshereinareincludedforconvenienceofreference only and shall not affect the interpretation of this Agreement.
Section9.Governing Law; Jurisdiction; Etc.THIS AGREEMENT AND ANY CLAIMS,CONTROVERSY,DISPUTEORCAUSEOFACTION(WHETHERINCONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALLBEGOVERNEDBY,ANDCONSTRUEDINACCORDANCEWITH,THELAWOF THE STATE OF NEW YORK.
Section10.Submission to Jurisdiction.THE BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ANY AGENT, ANY LENDER, ANY ISSUING BANK, OR ANY RELATED PARTY OF THE FOREGOINGINANYWAYRELATINGTOTHISAGREEMENTORTHETRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLYANDUNCONDITIONALLYSUBMITSTOTHEJURISDICTIONOFSUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVEAND MAY BE ENFORCED INOTHER JURISDICTIONSBY SUITON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENTSHALLAFFECTANYRIGHTTHATANYAGENT,ANYLENDERORANY ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATINGTOTHISAGREEMENTAGAINSTTHEBORROWERORITSPROPERTIESIN THE COURTS OF ANY JURISDICTION.
Section11. Waiver of Venue.THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN SECTION10. EACHOFTHEPARTIESHERETOHEREBYIRREVOCABLYWAIVES,TOTHEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
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Section12. Service of Process.EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION10.03OFTHECREDITAGREEMENT.NOTHINGINTHISAGREEMENTWILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section13.WaiverofJuryTrial.EACHPARTYHERETOHEREBYIRREVOCABLY WAIVES,TOTHEFULLESTEXTENTPERMITTEDBYAPPLICABLELAW,ANYRIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).EACH PARTY HERETO (A)CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND(B)ACKNOWLEDGESTHATITANDTHEOTHERPARTIESHERETOHAVEBEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section14.Counterparts. This Agreement may be executed in counterparts (and by differentpartiesheretoindifferentcounterparts),eachofwhichshallconstituteanoriginal,butall of which when taken together shall constitute a single contract.Delivery of an executed counterpartofasignaturepageofthisAgreementbyfacsimileorotherelectronicimagingmeans (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.The words “execution,” “execute,” “signed,” “signature,” and words of like import inorrelatedtoanydocumenttobesignedinconnectionwiththisAgreementandthetransactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignmenttermsandcontractformationsonelectronicplatformsapprovedbytheAdministrative Agent,orthekeepingofrecordsinelectronicform,eachofwhichshallbeofthesamelegaleffect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeepingsystem,asthecasemaybe,totheextentandasprovidedforinanyapplicableLaw, includingtheFederalElectronicSignaturesinGlobalandNationalCommerceAct,theNewYork StateElectronicSignaturesandRecordsAct,oranyothersimilarstatelawsbasedontheUniform Electronic Transactions Act.
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INWITNESSWHEREOF,thepartiesheretohavecausedthisAgreementtobeduly executed as of the date first above written.
| GSRP WAREHOUSE I LLC, | |||||||||||
| as the Borrower | |||||||||||
| By: MN8 Energy Operating Company LLC, its sole member | |||||||||||
| By: MN8 Energy LLC, its managing member | |||||||||||
| By: | /s/ David Callen | ||||||||||
| Name: David Callen | |||||||||||
| Title: Authorized Signatory |
[SignaturePagetoSixthAmendmenttoCreditAgreement]
| MUFG BANK, LTD., as | |||||||||||
| Administrative Agent | |||||||||||
| By: | /s/ Lawrence Blat | ||||||||||
| Name: Lawrence Blat | |||||||||||
| Title: Authorized Signatory |
[SignaturePagetoSixthAmendmenttoCreditAgreement]
| MUFG BANK, LTD., | |||||||||||
| as an Issuing Bank and a Lender | |||||||||||
| By: | /s/ Saad Iqbal | ||||||||||
| Name: Saad Iqbal | |||||||||||
| Title: Managing Director |
[SignaturePagetoSixthAmendmenttoCreditAgreement]
| HSBC BANK USA, N.A., | |||||||||||
| as an Issuing Bank and a Lender | |||||||||||
| By: | /s/ Karun Chopra | ||||||||||
| Name: | Karun Chopra | ||||||||||
| Title: | ID: 23341 | ||||||||||
| Director,Real Assets Finance |
[SignaturePagetoSixthAmendmenttoCreditAgreement]
| NATIXIS, NEW YORK BRANCH, | |||||||||||
| as an Issuing Bank and a Lender | |||||||||||
| By: | /s/ John Sindoni | ||||||||||
| Name: John Sindoni | |||||||||||
| Title: Director | |||||||||||
| By: | /s/ David B Martens | ||||||||||
| Name: David B Martens | |||||||||||
| Title: Managing Director |
[SignaturePagetoSixthAmendmenttoCreditAgreement]
| CANADIAN IMPERIAL BANK OF | |||||||||||
| COMMERCE, NEW YORK BRANCH, | |||||||||||
| as an Issuing Bank and a Lender | |||||||||||
| By: | /s/ Philipp Slabik | ||||||||||
| Name: Philipp Slabik | |||||||||||
| Title: Authorized Signatory |
[SignaturePagetoSixthAmendmenttoCreditAgreement]