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PW Solar Power Purchase AgreementESTOPPEL CERTIFICATE AND SOLAR PPA AMENDMENT This Estoppel Certificate and Solar PPA Amendment (this "Estoppel Certificate") is made and entered into as of Maya, 2016 (the "Estoppel Date") by and among SolEd Solar Holdings I, LLC, a California limited liability company ("Seller"), and City of San Rafael, California, a municipality of the State of California ("Purchaser") for the benefit of each of the Seller and the Financing Parties identified from time -to -time by Seller and to be listed on Schedule III to this Estoppel Certificate (each, a "Financing Party"). WHEREAS, Seller and Purchaser are party to that certain Solar Power Purchase Agreement dated as of September 30, 2014 (as amended, amended and restated, supplemented or modified from time to time, the "Agreement") pursuant to which Seller has agreed to install the Systems (as defined in the Agreement) at the Premises of Purchaser in the City of San Rafael CA, including: City Hall, San Rafael Community Center, Al Boro Community Center, the DPW Headquarters, the C Street Garage, and the Terra Linda Recreation Center; WHEREAS, SolEd Benefit Corp., a California public benefit corporation ("SolEd"), has assigned all of the membership interests in Seller in connection with financing provided to Seller for the System in accordance with Section 19(a) of the Agreement; WHEREAS, in connection with such financing for the Systems, Seller will assign to certain Financing Parties all of its rights, title and interest in, to and under the Agreement and all proceeds collected thereunder as security for Seller's obligations under one or more financing agreements (all such assigned rights, the "Assigned Rights"), and Seller will remain obligated for all obligations of Seller under the Agreement; WHEREAS, pursuant to its financing agreements with such Financing Parties, Seller will agree to deposit all revenues it receives with respect to the Systems and under the Agreement into a lockbox account designated by the Financing Parties and as identified by Seller from time to time and further described on Schedule I hereto (the "Lockbox Account"); and NOW, THEREFORE, in consideration of the premises and of other valuable consideration, the parties hereto agree as follows: AGREEMENT Consent of Assignment; Amendments; Representations & Warranties. Purchaser hereby acknowledges notice of the assignment of all of the membership interests in Seller to C2 Beta Holdings, LLC, a Delaware limited liability company, and consents in all respects to such assignment. Notwithstanding anything else in the Agreement to the contrary, Purchaser and Seller hereby agree that the Agreement is hereby amended as follows and shall remain in full force and effect except as amended below and as affected by this Estoppel Certificate. All capitalized terms used but not defined in this Estoppel Certificate shall have the meanings set forth in the Agreement. 2. Seller's Conditions Satisfaction Dates. With respect to the Conditions Satisfaction Dates applicable to the Seller's Conditions Precedent set forth in Section 6(a) of Exhibit 4 to the Agreement: a. Seller's Conditions Precedent described in Subsections 6(a)(i) and (ii) have been satisfied. b. Tile Conditions Satisfaction Date fog• Seller's Conditions Precedent described in Subsections 6(a)(iii)-(vi) is the date that is 90 days from the Estoppel Date. Purchaser's Conditions Satisfaction Dates. With respect to the Conditions Satisfaction Dates applicable to the Purchaser's Conditions Precedent forth in Section 6(b) of Exhibit 4 to the Agreement: With respect to Purchaser's Conditions Precedent set forth in Subsection 6(b)(i), the Anticipated Commercial Operation Dates shall be as set forth in Schedule 11 attached hereto and Section 7 of Exhibit 1 to the Agreement is hereby modified accordingly. Purchaser's Conditions Precedent described in Subsection 6(b)(ii) has been satisfied. Page I of 10 The Conditions Satisfaction Date for Purchaser's Conditions Precedent described in Subsections 6(b)(iii) and (v) is the date that is 90 days from the Estoppel Date. With Respect to Purchaser's Conditions Precedent described in Subsection 6(b)(iv), Purchaser has determined that the Systems are exempt from CEQA, this Purchaser's Condition Precedent has been satisfied. The Purchaser hereby issues a notice to proceed pursuant to Subsection 6(b)(iv) of Exhibit 4 to the Agreement, for those Systems located at the Al Boro Co1111111111ity Center, the DPW Headquarters, and the C Street Garage. The System at the San Rafael Community Center on B Street is hereby eliminated from the Solar PPA. The Systems at City Hall and the Terra Linda Recreation Center are on hold at least through the end of May 2016, and, should the City determine in its sole discretion that it is willing to proceed with those two projects, they will be addressed in a later document, with a separate (identical amended form) Solar PPA, to be executed if and when the City is prepared to proceed on those sites. Amendments to Agreement. a. Subsection 18(c) of Exhibit 4 to the Agreement regarding a Non Appropriation Event is amended to read in its entirety as follows: "Non Approilriation Event. Notwithstanding anything herein to the contrary, due to the constitutional limitations on Purchaser, a "budget non -appropriation event" in which Purchaser's appropriation for any year covered in this Agreement does not appropriate funds for the procurement of any utility services for Purchaser shall be addressed as follows: During the continuation of a budget non -appropriation event as defined above, if Purchaser does not otherwise have other funds available to make payments otherwise due on this Agreement, Purchaser shall owe, but shall not be obligated to pay for any services provided under this Agreement until the budget non -appropriation event has terminated. Purchaser agrees that it shall use its best efforts to seek appropriation for utility services during the term of this Agreement. if a budget non -appropriation event continues for more than 180 days, Seller (but not Purchaser) may terminate this Agreement, and call for a Termination Payment. Seller shall provide Purchaser with not less than 30 days' prior written notice of Seller's intention to terminate. Upon Purchaser's request made within seven calendar days after service of such notice, Seller shall meet and confer with Purchaser in good faith to consider alternative termination dates proposed by Purchaser." b. Exhibit 9 to the Agreement, hlsurance Requirements, shall be replaced in its entirety with the insurance requirements attached to this Estoppel Certificate as Schedule IV. c. Expected Equipment, material counts, and Expected Contract Quantities shall change slightly, up and down, with final designs. Notice of Assignments and Security Interest. Seller agrees that it will notify Purchaser not later than ninety (90) days after it has engaged in a further financing transaction with Financing Parties, which may include notice that it has (a) irrevocably assigned all of its right, title and interest in the Systems to one or more Financing Parties for all purposes and (b) further assigned the Assigned Rights to such Financing Parties as security for the due and punctual performance and payment of all of Seller's obligations under its agreements with Financing Parties for financing of the Systems. Such persons identified in Seller's notice shall be deemed to be "Financing Parties" as contemplated under this Estoppel Certificate and the Agreement. 6, Acknowledgments. In consideration of the transactions contemplated herein, effective upon Seller's delivery of written notice to Purchaser that it has entered into further financing transactions with Financing Parties and its identification of such Financing Parties, Purchaser hereby agrees that: Page 2 of 10 a. Purchaser acknowledges and consents to the sale of the Systems to a Financing Party and further agrees that notwithstanding Section 16 or any other provision in the Agreement to the contrary, any lessor in a sale-leaseback financing shall be the legal and beneficial owner of the Systems with title thereto for all purposes; b. acknowledges the collateral assignments described in Section I(b) hereof and that further assignments by such Financing Parties are permitted, either in connection with its assignment of the Systems or their assignment to a nominee or designee after such Financing Party's exercise of rights and remedies against Seller under its financing agreements with the Seller; c. acknowledges and agrees that upon Default by Seller Under the financing agreements with the Financing Parties or upon the end of the term of any such financing agreements, without purchase of the Systems by Seller, such Financing Parties have the right to take possession of and succeed to (or cause its nominee or designee to take possession of and succeed to) all of Seller's right, title, interest and obligations under the Agreement, including the right and obligation to continue to perform in place of the Seller pursuant to the terms of the Agreement, the right to require the counterparty to perform under such agreement, and the right to rely upon all representations, warranties, indemnities and agreements made by the Purchaser under or pursuant to the Agreement; d. acknowledges that a lessor under a sale-leaseback constitutes a Financing Party within the meaning of the Agreement and is entitled to all the notice, consent rights, cure rights and other benefits granted to Financing Party Under Section 19 of the Agreement; e. agrees that the Agreement is a contract for the delivery and purchase of goods and services and not a financing arrangement and accordingly, that, regardless of the characterization of the Agreement, Purchaser shall use its best efforts to obtain appropriations sufficient to cover all payments due under the Agreement, including any Termination Payments thereunder, and if it fails to obtain such appropriations, it shall use all reasonable efforts to assist Seller and any Financing Party to mitigate their damages. f. agrees that if the Agreement is terminated by rejection, or otherwise, during a case in which Seller is the debtor Under Title 11, United States Code, or other similar federal or state statute, then Purchaser shall, at the option of the Financing Parties, enter into a new agreement with such Financing Parties or (at the direction of Financing Parties) its nominee or designee having terms substantially identical to the Agreement pursuant to which such Financing Party or its nominee or designee shall have all of the rights and obligations of Seller under the existing Agreement (but for such bankruptcy). Pavments. The Purchaser agrees that, unless and until otherwise instructed by the Financing Party identified in writing by Seller, the Purchaser shall make all payments due to Seller Under the Agreement directly to the Lockbox Account or such other account as the Financing Parties may from time to time hereafter specify in writing. 8. Liabilitv of Financing Parties. Seller shall retain and remain obligated to perform all obligations of the Seller under the Agreement. Purchaser acknowledges and agrees that future Financing Parties have not assumed, and do not have any obligation or liability under or pursuant to, the Agreement, and that the exercise by a Financing Party of its rights and remedies under its agreements with Seller shall not constitute an assumption of Seller's obligations under the Agreement except to the extent any such obligations shall be expressly assumed by an instrument in writing executed by the Financing Parties or as otherwise provided herein; provided however, Purchaser shall be entitled to exercise all of its rights under the Agreement if neither Seller nor a Financing Party shall have performed or caused to be performed all of Seller's obligations thereunder. 9. Notices. Page 3 of 10 a. All comnumications between the parties hereto or notices provided herein to be given may be given to the addresses listed on Schedule III hereto, which Schedule III may be updated from time to time by Seller to identify Seller's Financing Parties. b. Any notice required or given hereunder shall be deemed properly given when provided in writing (a) three (3) business days after mailed first class, overnight, or certified mail, return receipt requested, postage prepaid, addressed to the designated recipient at its address set forth at the heading hereof or such other address as such party may advise by notice given in accordance with this provision or (b) upon receipt by the party to whom addressed in writing by personal delivery, commercial courier service, fax or other means which provides a permanent record of the delivery of such notice; provided, however, that if any notice is tendered to an addressee and the delivery thereof is refused by such addressee, such notice shall be effective upon such tender. Any party shall have the right to change its address for notice hereunder to any other location within the United States by giving of ten (10) days' written notice to the other parties in the manner set forth herein above. 10. Representations and Warranties of Purchaser. Purchaser hereby represents and warrants, in favor of Seller, as of the date hereof, that (i) the execution, delivery and performance by Purchaser of this Estoppel Certificate and the Agreement have been duly authorized by all necessary governmental or other action on the part of Purchaser, (ii) each of this Estoppel Certificate and the Agreement is in full force and effect and constitutes the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and general equitable principles, (iii) Purchaser is not in default of any of its obligations under the Agreement, nor do there presently exist any disputes between Purchaser and Seller under the Agreement and (iv) Purchaser has no notice of, and has not consented to, any previous assignment by Seller of all or any part of its rights under the Agreement. 11. Successors and Assigns. This Consent is binding upon Purchaser and its permitted successors and assigns and shall inure to the benefit of the Seller, its designee(s) and assignee(s) and their respective successors and assigns (including, without limitation, any entity that refinances all or any portion of the SecUred Obligations). The Purchaser hereby agrees to execute a consent to assignment substantially in the form of this Consent and such other- documents as may be reasonably requested by Seller in connection with any collateral assignment of the Assigned Agreement to the lenders of Seller from time to time at the request of the Seller, including any refinancing or replacement of any Credit and/or Security Agreements. 12. Governing Law. THIS ESTOPPEL CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE AND WITHOUT REFERENCE TO CONFLICTS OF LAWS. 13. Severabilitv. If any provision of this Estoppel Certificate or the application thereof is determined by a court of co►npetent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to the parties hereto or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. 14, Third Partv Beneficiarv: Successors and Assigns. Each Financing Party identified from time to time by Seller shall be an express third -party beneficiary of this Estoppel Certificate and the Agreement and shall have the right to enforce all rights provided for its benefit hereunder and thereunder against Page 4 of 10 any party hereto. This Estoppel Certificate shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. A Financing Party may, at any time by written notice to each of the parties to this Estoppel Certificate, assign its rights and delegate its obligations hereunder to any nominee or designee of such Financing Party including, without limitation, to any purchaser of all or any portion of rights under the Agreement in connection with a default by Seller under the Seller's financing agreements with Financing Parties and a foreclosure by such Financing Parties. 1 �. Waiver. No amendment or waiver of any provisions of this Estoppel Certificate shall be effective unless the same shall be in writing and signed by the parties hereto, and then such amendment or waiver shall be effective only in the specific instance and for the specific purpose for which given. 16. Counterparts. This Estoppel Certificate may be executed in one or more counterparts and when signed by all the parties listed below shall constitute a single binding agreement. Delivery of an executed counterpart of a signature page of this Estoppel Certificate by facsimile shall be effective as delivery of a manually executed counterpart of this Estoppel Certificate. Each Financing Party subsequently identified by Seller shall deliver a counterpart signature page joining such Financing Party as a party to this Estoppel Certificate. ] ; . Further Assurances. The Purchaser will at any time and from time to time, upon the written request of the Seller or Financing Parties, execute and deliver such further documents and do such other acts and things as Seller or any Financing Party may reasonably request in order to effectuate more fully the purposes of this Estoppel Certificate. 18. Conflicts. In the event of a conflict between any provision of this Estoppel Certificate and the provisions of the Agreement, the provisions of this Estoppel Certificate shall prevail. Notwithstanding the foregoing, Purchaser does not waive any of its rights under the Agreement except as expressly set forth herein. 19. Termination. The rights of a Financing Party hereunder shall terminate upon the termination or expiration of the Agreement in accordance with its terms (as modified hereby), including upon exercise of Purchaser's Purchase Option in accordance with Section 16(b) of the Agreement. Subject to any rights of any Financing Party to substitute for Seller's interest in the Agreement as provided herein, this Estoppel Certificate and the rights of each Financing Party hereunder shall terminate upon the termination or expiration of each of the Financing Party's financing agreements with the Seller for the Systems. [SIGNATURE PAGE FOLLOWS] Page 5 of 10 [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE] IN WITNESS WHEREOF, the parties hereto have caused this Consent and Amendment Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written_ SELLER: SOLED SOLAR HOLDINGS I, LLC_ u Cilifoi- nia limited liuhihly conipi iy Name; Ricliard Dovere, on behalf of C2 Beta Holdings, LLC, its sole member Title: Minulger PURCHASER: CITY OF SAN RAFAF.L CALIFORNIA, [i 111111lclpuhlV of the .Slide of Cidif i-niii By: Nam ' J 1 M SC/gu Title: City Manager APPROVED AS TO FORM By:_L; City Attorney: Page 6 of to [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE] IN WITNESS WHEREOF, the parties hereto have caused this Consent and Amendment Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written. SELLER: SOLED SOLAR HOLDINGS I, LLC, a California limited liability company M Name: Richard Dovere, on behalf of C2 Beta Holdings, LLC, its sole member Title: Manager PURCHASER: CITY OF SAN RAFAEL CALIFORNIA, a municipality of the State of California ABy: C1'c y GLi.Ie�L . Nam J i Sc/u' Title: City Manager APPROVED AS TO FORM By: i ._al _ A44..�_ 'City Attorney: Page 6 of 10 [SIGNATURE PAGE TO ESTOPPEL CERTIFICATE] IN WITNESS WHEREOF, the parties hereto have caused this Consent and Amendment Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written. SELLER: SOLED SOLAR HOLDINGS I, LLC, a California limited liability company By: Name: Richard Dovere, on behalf of C2 Beta Holdings, LLC, its sole member Title: Manager PURCHASER: CITY OF SAN RAFAEL CALIFORNIA, a municipality of the State of California By: Nam J i"�L' Title: City Manager APPROVED AS TO FORM City Attorney: Page 6 of 10 SCHEDULE I: LOCKBOX INFORMATION [To be provided by Completion] Page 7 of 10 SCHEDULE II: ANTICIPATED COMMERCIAL OPERATION DATE San Rafael - Public Works Oct -1, 2016 SR - Al Boro Community Center* Nov -1, 2016 SR - Terra Linda Ree Center* TBD San Rafael - City Hall TBD San Rafael - Parking Garage Dec -1, 2016 *Subject to schedule of other site work underway or planned. Page 8 of 10 SCHEDULE III: FINANCING PARTIES; ADDRESSES FOR NOTICES [To be provided by Completion] Page 9 of 10 SCHEDULE IV: SELLER INSURANCE REQUIREMENTS Seller's Insurance. At all times during the term of the Agreement, and any extension thereof, including, but not limited to, an extension of the term or for the removal of the System from the Site(s), Seller shall obtain, maintain and keep in full force and effect the following insurance for coverage of all obligations and associated activities under the Agreement, including, but not limited to, the use and occupancy of the Site(s), the business operated by the Purchaser thereon, and the construction, installation, operation, maintenance and repair of the Systems, in the amounts, and with the conditions required, as set forth in this Agreement. Each policy required below shall include an additional insured endorsement in favor of the Purchaser for ongoing and completed operations, which endorsement shall specify that such additional insured coverage is primary and non-contributory as to any other coverage available to the additional insured. Workers' Compensation Insurance for Seller's employees to the extent of statutory limits and Occupational Disease and Employer's Liability Insurance for not less than $1,000,000. The Seller's worker's compensation policy shall be specifically endorsed to waive any right of subrogation against the Purchaser. 2. Commercial General Liability Insurance, or its equivalent, including but not limited to Products and Completed Operations and Contractual Liability, as applicable to Seller's obligations under this Agreement, with limits not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. 3. Excess Liability Insurance with an aggregate limit of not less than $5,000,000. 4. Without limitation to the foregoing, Seller shall purchase and maintain throughout the term of this Agreement insurance or indemnity protection that is co -equal with its indemnity obligations hereunder. Page 10 of 10 PROFESSIONAL SERVICES AGREEMENT/CONTRACT COMPLETION CHECKLIST AND ROUTING SLIP Below is the process for getting your professional services agreements/contracts finalized and executed. Please attach this "Completion Checklist and Routing Slip" to the front of your contract as you circulate it for review and signatures. Please use this form for all professional services a Lyreem e nts/co n tracts (not just those requiring City Council approval). This process should occur in the order presented below. Step Responsible Description Completion Department Date 1 City Attorney Review, revise, and comment on draft 2 Contracting Department agreement. Forward final agreement to contractor for �1 their signature. Obtain at least two signed originals from contractor. 3 Contracting Department Agendize contractor -signed agreement for Council approval, if Council approval necessary (as defined by City Attorney/City Ordinance*). 4 City Attorney Review and approve form of agreement;) . bonds, and insurance certificates and endorsements. 5 City Manager/ Mayor or Agreement executed by Council authorized Department Head official. 6 City Clerk City Clerk attests signatures, retains original agreement and forwards copies to the contracting department. To be completed by Contracting Department: Project Manager:k„�� Project Name: Y!`e j "!t— Agendized for City Council Meeting of (if necessary): J017 FPPC: ❑ , check if required If you have questions on this process, please contact the City Attorney's Office at 485-3080. * Council approval is required if contract is over $20,000 on a cumulative basis.