IV.10. Approve Estoppel Certificate to Minnesota Community Solar Garden Subscription Agreement; Stadler (CR2017-061)G�TY °F
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Approve Estoppel Certificate to Minnesota Community Solar Garden Subscription Agreement
Proposed Action.
Staff recommends adoption of the following motion: Move that Council ap�rove the Consent and
Estoppel Certificate in regards to the purchase and operation of the Feelv Communitv Solar
Garden site in Dakota County.
Overview.
In October 2015 the City Council approved a 25-year power purchase subscription agreement with
SunEdison. Under this agreement the City agrees to purchase up to 5.5 mWh/yr of electricity at a
cost that is indexed at $0.01/kWhr less than the Xcel Energy rate. The anticipated energy cost
savings is $70,000 -$80,000 per year. SunEdison is taking various actions as a result of its
bankruptcy. This includes actions related to the sale, construction and operations of various
community solar gardens located in Dakota and Carver Counties of which the City of Hopkins will
be purchasing solar-derived electrical energy. This estoppel certificate is one of those bankruptcy
actions related to the Feely site in Dakota County. This site will soon be under construction with
completion anticipated in the 4t" quarter 2017. �fhe City O�ttorney has been in close coordination
with our SunEdison representative regarding this estoppel and approves of this final version of the
estoppel certificate.
Staff requests City Council approve the proposed estoppel certificate.
Supportinq information.
• Proposed consent and estoppel certificate �
• Spreadsheet showing Hopkins CSG site and percentage share of energy production
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Steven J. Stadler, Public Works Director
Financial Irnpact: $ n/a �udgeted: 1(/N Source:
Related Documents (CIP, ERP, etc.): �
N otes :
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Form of Subscriber Certificate
CONSENT AND ESTOPPEL CERTIFICATE
This Consent and Estoppel Certificate, dated as of [ ]� 201_ (this
"Certificate"� is made by City of �-Iopkins (the "Subscriber"), for the benefit of SunE Feely 1,
LLC, a Delaware limited liability company (the "O�erator"), Fresh Air Energy II, LLC, a
Delaware limited liability company ("Buyer") and [Collateral Agent], as collateral agent
(together with its successors and assigns, the "Collateral Agent") for the financing institutions
providing loans and other financial accommodations with respect to the Solar Systems (as
defined below).
BACKGROUND :
A. City of Hopkins �"Subscriber"� has entered into that certain Minnesota Community Solar
Garden Subscription Agreement dated as of October 28, 2015, as amended October 24, 2016
and as arnended on [executed date] (the "A�reement") among Subscriber and Operator, as
assignee of SunE Minnesota Holdings, LLC.
B. Buyer and SunE l��I�T Development, LLC, a Delaware limited liability company have entered
into that certain Purchase and Sale Agreement, dated as of February 6, 2017 (the "Purchase
A�reement"), whereby Buyer has agreed to purchase the membership interests of Operator,
which owns certain assets in connection with development of solar photovoltaic facilities
located in Minnesota pursuant to the terms and conditions of the Purchase Agreement (the
"Trans action") .
C. The solar photovoltaic facilities subject to the Transaction include the Solar System(s) (as
defined in the Agreement). (SRC038633, SRC038612, SRC038654, SRC038586, and
SRC038665)
D. The Operator has collaterally assigned or intends to collaterally assign, and has granted or
intends to grant a security interest in, the Agreement to the Collateral Agent to secure the
obligations of the Operator and its affiliates under the financing and participation agreement
(and related agreements and instruments) between the financial institutions for which the
Collateral Ageni acts as agent, pursuani to vvhich agreement (and related agreements and
instruments) such financial institutions are providing financial accommodations to the
Operator and such affiliates in connection ,with, inter alia, the Solar Systems (the "Financin�
Documents").
E. Capitalized terms used but not otherwise defined in this Certificate have the meanings given
to them in the Agxeement. .
1. Acknowledgment and Consent.
a) The Subscriber consents to, or confirms that its consent is not required for, the
Transaction, including the assignment and transfer of the membership interests of Operator.
b) The Subscriber acknowledges and consents to the collateral assignment by the
Operator to the Collateral Agent of, and grant by the Operator to the Collateral Agent of a
security interest in, all of Operator's right, title and interest in, to and under the Agreement.
c) The Subscriber acknowledges that, during the continuance of an event of default
under the Financing Documents (as notified to the Subscriber by the Collateral Agent), the
Collateral Agent will have the right to foreclose upon or otherwise acquire and succeed to all
of the Operator's right, title and interest in, to and under the Agreement, including the right to
continue to perform in place of the Operator, the right to require the Subscriber to continue to
perform under the Agreement for the benefit of the Collateral Agent or its successors or
assignees (assuming continued performance in accordance with the Agreement by Collateral
Agent or its successors or assignees of the obligations of Operator thereunder, and
acknowledging that Subscriber will retain all of its rights under the Agreement in the event of a
default by Collateral Agent or its successors or assignees as the new "Operator" under the
Agreement, except as expressly modified by this Certificate), and the right to rely upon all
representations, warranties, covenants, indemnities and agreements made by the Subscriber
under or pursuant to the Agreement.
d) Until further written notice from the Collateral Agent to the Subscriber, the
Subscriber agrees to pay any and all amounts payable to the Operator under the Agreement,
including without limitation payments for energy delivered under the Agreement, payments of
any indemnities, or termination payments that may at any time become payable under or in
respect of the Agreement, to the Collateral Agent, by remitting such payments to the account
specified on the attached Schedule 1. Upon Subscriber's receipt of notice from Collateral Agent
instructing Subscriber to make payments to Collateral Agent or its designee (which instructions
Subscriber may rely on Without investigation or confirmation from Operator), all payments made
by Subscriber in accordance with such notice shall be deemed fu.11 performance of such payment
obligations under the Agreement without further obligation or liability to Operator therefore.
e) The Subscriber confirms that the Collateral Agent is a"Financing Party" as
defined in and for the purposes of the Agreement.
2. Ri�hts of Collateral Agent. Notwithstanding anything to the contrary in the Agreement:
a) The Collateral Agent, as collateral assignee, shall be entitled to exercise, in the
place and stead of the Operator, any and all rights and remedies of the Operator under the
Agreement in accordance with the terms thereof.
b) The Collateral Agent shall have the right, but not the obligation, to pay all sums
due under the Agreement and to perform any other act, duty or obligation required of the
Operator thereunder or cause to be cured any default of the Operator thereunder. The Subscriber
ackriowledges and agrees that the Collateral 1-�gent has not assumed and does not have any
obllgation or l�abil�t� under the 1�greement, and that the exerci�e by the Collatera� Agent of its
rights or remedies under the Financing Documents shall not constitute an assumption of
Operator's obligations under the Agreement, exc�pt to the extent any such obligations are
expressly assumed by the Collateral Agent or its designee pursuant to an instrument in writing.
c) If the Subscriber becomes entitled to terminate the Agreement due to an uncured
default thereunder by the Operator, the Subscriber agrees not to terminate any the Agreement
without first giving written notice of such uncured default to the Collateral Agent and giving the
Collateral Agent the same cure period afforded to the Operator under the Agreement, plus an
additional 'period of thirty (3 0) days, to permit the Collateral Agent to cause such default to be
cured. The Subscriber understands that in order to cure certain defaults by Operator under a
Agreement the Collateral Agent may need to have possession of the Solar System or related
assets, and accordingly the Subscriber agrees that if the Collateral Agent diligently seeks such
possession, whether by foreclosure proceedings or a court action (such as, for example, seeking
the appointment of a receiver of the Operator's property), the Collateral Agent's additional 30-
day cure period shall be extended for an additional period of ninety (90) days if reasonably
necessary to obtain such possession.
d) If any bankruptcy or insolvency proceeding is commenced with respect to the
Operator, and the trustee in bankruptcy or the Operator as debtor-in-possession (or any
equivalent thereo� rej ects or otherwise terminates the Agreement, then, within 90 days after
such rej ection or other termination of the Agreement, the Subscriber shall, if requested by the
Collateral Agent, enter into a new subscription agreement on the same terms and conditions as
the Agreement for the period that would have remained under the Agreement but for such
rejection or termination.
e) Subscriber agrees that it will promptly notify the Collateral Agent of any breach
or default by Operator under the Agreement at the notice address for the Collateral Agent llsted
on the attached Schedule 2(or at such other address for notices as the Collateral Agent may
specify in writing to the Subscriber).
3. Confirmation and Esto�pel. Subscriber hereby represents, warrants, certifies, and
confirms the following matters for the benefit of Operator, Buyer, and the Collateral Agent with
respect to the Agreement:
a) Subscriber (i) is a[type of entity] duly organized and validly existing under the
laws of the State of [State], (11> 1S C�.LI�y C�Llall�leC�., authorized to do business and in good standing
in every jurisdiction necessary to perform its obligations under the Agreement, and (iii) has all
requisite power and authority to enter into and to perform its obligations hereunder and under the
Agreement, and to carry out the terms hereof and thereof and the transactions contemplated
thereby.
b) The execution, delivery and performance by Subscriber of the Agreement and this
Certificate have been duly authorized by all necessary [corporate] or other action on the part of
Subscriber and do not require any approvals, filings with, or consents of any entity or person
which have not previously been obtained or made.
c) Each of this Certificate and the Agreement is in full force and effect, has been
duly executed and delivered on behalf of Subscriber by the appropriate officers of Subscriber,
and constitutes the legal, valid and binding obligation of Subscriber, enforceable against
Subscriber in accordance with its terms, except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general equitable principles (whether consldered in a
proceeding in equity or at law).
d) There is no litigation, action, proceeding or investigation pending or, to the best of
Subscriber's knowledge, threatened against Subscriber before any court or Governmental
Authority by, against, affecting or involving any of its business or assets that would affect
Subscriber's ability to carry out the transactions contemplated in the Agreement.
e) The execution, delivery and performance by Subscriber of this Certificate and the
Agreement, and the consummation of the transactions contemplated hereby and thereby, will not
result in any violation of, breach of or default under any term of its formation or governance
documents, or of any contract or agreement to which it is a party or by which it or its property is
bound, or any Applicable Laws (including but not limited to rules and regulatlons).
f) To the best of Subscriber's knowledge, neither Subscriber nor Operator is in
default of any of its obligations under the Agreement.
g) To the best of Subscriber's knowledge, (i) no event of force majeure exists under,
and as defined in, the Agreement and (ii) no event or condition exists which would either
immediately or with the passage of any applicable grace period or giving of notice, or both,
enable either Subscriber or Operator to terminate or suspend its obligations under the A.greement.
h) The final Subscriber's Allocated Percentage under the Agreement 6.10 %
i) The Agreement and this Certificate are the onl� agreen�ents between Operator and
Subscriber with respect to the Solar System, and all of the conditions precedent to effectiveness
under the Agreement have been satisfied or waived.
j) The Subscriber agrees that it will not amend, terrr�inate, renew, extend or modify
the Agreement without the prior written consent from the Collateral Agent, unless (solely with
respect to an amendment or a modification) the Operator represents to the Subscriber in writing (a
copy of which shall be provided to the Collateral Agent) that no consent of the lenders (or any of
their agents) is required for such amendment or modification under the Financing Documents.
This Certificate may be executed in any number of counterparis and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to t1�is Certificate by facsimile or e-mail (including
"pd�' format) or other electronic means shall be effective as delivery of an original executed
counterpart of this Certificate. The governing law specified in the Agreement shall also be the
law governing this Certificate, including the interpretation and construction of this Certificate.
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IN WITNES S WHEREOF, each of the undersigned has duly executed this Certificate as
of the date first above written.
SUBSCRIBER:
City of Hopkins
By•
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Name .
Title:
Tit1e:
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SunE Feely 1, LLC,
a Delaware Limited Liability Company
By•
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Name :
Title:
Title:
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Fresh Air Energy II, LLC,
a Delaware Limited Liability Company
By.
.
Name :
Title:
Title:
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Bank:
Account Name:
Account #:
ABA #:
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SCHEDULE 2
Addresses for Notices
If to Collateral Agent:
If to O�erator:
If to Subscriber:
If to Buyer: