Goldenpeaks Poland Holding Limited - Chapter 11 DIP Terms

DIP Terms

Borrower(s) / Guarantor(s)

• GoldenPeaks Poland Holding Limited, a private exempt single member limited liability company incorporated under the laws of Malta (the “Company”), together with certain of its subsidiaries and affiliates, as debtors-in-possession (collectively, the “Debtors”)
• Tranche 1 Borrowers (and other entities to be designated with the consent of the Required Tranche 1 Lenders):
  • Alpha Renewable Energy sp. z o.o., Azure Renewable Energy sp. z o.o., Bravo Renewble Energy sp. z o.o., Charlie Bis Renewable Energy sp. z o.o., Charlie Renewable Energy sp. z o.o., Helios Renewable Energy sp. z o.o., Iris Renewable Energy sp. z o.o., Juno Renewable Energy sp. z o.o., Leto Renewable Energy sp. z o.o., Rhea Renewable Energy sp. z o.o., Sierra Renewable Energy sp. z o.o., Timber Renewable Energy sp. z o.o., Whiskey Renewable Energy sp. z o.o., and GoldenPeaks Poland LLC
• Tranche 2 Borrowers:
  • Delta Renewable Energy sp. z o.o., Echo Renewable Energy sp. z o.o., Foxtrot Renewable Energy sp. z o.o., and Gamma Renewable Energy sp. z o.o.
• The Borrowers are collectively referred to as the “Obligors” or the “DIP Loan Parties”
• The obligations of the Tranche 1 Borrowers and the Tranche 2 Borrowers are separate and distinct, and not joint and several. The Tranche 1 Borrowers shall have no liability for the obligations of the Tranche 2 Borrowers under the Tranche 2 Facility, and the Tranche 2 Borrowers shall have no liability for the obligations of the Tranche 1 Borrowers under the Tranche 1 Facility. No Debtor or non-Debtor entity that is not a DIP Loan Party shall be a borrower, guarantor, obligor or collateral grantor with respect to the DIP Facility

Agent / Lender(s)

• Funds and accounts managed by Brookfield Asset Management Limited and/or its affiliates or designees (“Brookfield”), as DIP Lenders; provided that no affiliate of any Obligor shall become a DIP Lender
• An affiliate of Brookfield (BID Administrator LLC), as DIP Administrative Agent and collateral agent
• Milbank LLP, as counsel to the DIP Lenders, to prepare documentation for the DIP Facility

DIP Commitments

• $162.8 million junior secured superpriority debtor-in-possession term loan facility, subject to the increase provided under the Incremental Tranche 2 Loans as may be approved in writing by Prime Capital, comprised of:
  • Tranche 1 Facility, of which the Tranche 1 Borrowers are the sole obligors:
    • Up to $117.7 million USD-denominated new-money delayed-draw term loan
    • Approximately $12.1 million of roll-up loans (excluding any “MOIC” amounts) used or deemed used to roll up or refinance, on a cashless basis, the outstanding principal in respect of the Prepetition Incremental Facilities
  • Tranche 2 Facility, of which the Tranche 2 Borrowers are the sole obligors:
    • Up to $33.0 million USD-denominated new-money term loan
    • Additional Tranche 2 Loans in an amount to be agreed (the “Incremental Tranche 2 Loans”), available only with the prior written consent of the Required Tranche 2 Lenders and Prime Capital in their sole discretion, following the Final Order Entry Date and the drawing of the $33.0 million Tranche 2 New Money Facility, to be used solely to pay construction and development expenses in accordance with the DIP Budget or other expenses as agreed to by the Required Tranche 2 Lenders
  • There shall be no roll-up in connection with the Tranche 2 Facility
• Availability:
  • On the Interim Order Entry Date: $10.7 million of the Tranche 1 New Money Loan and $24.1 million of the Tranche 2 Loans, each available in a single draw, and the cashless roll-up of Rollup Commitments
  • On the Final Order Entry Date: $14.1 million of the Tranche 1 New Money Loan and $8.9 million of the Tranche 2 Loans, each available in a single draw
• Delayed Draws:
  • Following the Interim Order Entry Date borrowing, the remaining Tranche 1 Commitments are available to be drawn on not less than 3 Business Days’ notice at any time from the Interim Order Entry Date until 45 days following the Final Order Entry Date
  • A portion of the Delayed Draw DIP Commitments equal to $92.9 million (the “Discretionary Delayed Draws”) is available only with the prior written consent of the Required Tranche 1 Lenders, with proceeds used solely to pay construction and development expenses in accordance with the DIP Budget or other expenses approved in writing by the Required Tranche 1 Lenders
  • Each borrowing shall be for a minimum principal amount of not less than $5 million, and there shall be no more than 2 borrowings of Delayed Draw DIP Commitments (except in the case of Discretionary Delayed Draws)
  • The Delayed Draw DIP Commitments terminate on a dollar-for-dollar basis upon the making of loans, and any unused Delayed Draw DIP Commitments terminate on the Maturity Date

Prime Capital Participation

• Prime Capital (Prime Capital AG, acting for and on behalf of Internationale Kapitalanlagegesellschaft mbH, for the account of the segment Inka LR of the German special fund Inka L, or its affiliates or designees) shall enter into a participation agreement with the Tranche 2 Lenders to purchase participation interests in the Tranche 2 Loans in an aggregate principal amount of $10,000,000
• Prime Capital to fund its $10,000,000 participation no later than 5:00 p.m. (London Time) on June 10, 2026 (with a pro rata reduction if the Tranche 2 Lenders fund less than all Tranche 2 Commitments at the Interim Facility funding); the Prime Participation Agreement to be executed and in full force no later than 5:00 p.m. (London Time) on June 12, 2026
• Covenant Holiday and Standstill: Prime Capital grants a covenant holiday and standstill of no less than 3.5 years from the Petition Date with respect to debt of the Tranche 2 Company Parties in which Prime Capital or its affiliates hold a claim, during which it shall not bring enforcement actions on account of any default arising prior to or during the Chapter 11 Cases (subject to reciprocal enforcement rights if Brookfield exercises enforcement remedies; a credit bid, asset sale, or Plan of Reorganization consistent with the Term Sheet does not, by itself, constitute an enforcement action)
• Case Support: Prime Capital agrees to support, and not to object to (or support others in objecting to), a Plan of Reorganization, credit bid, or alternative transaction proposed or consented to by Brookfield that provides for the rolling of Prime Capital’s prepetition secured claims on substantially similar terms, and not to interfere with Debtor/Brookfield pleadings that do not materially and adversely affect Prime Capital
• Conversion: Prime Capital commits to the automatic conversion of the Tranche 2 Loans into “exit” or “take-back” indebtedness on the Plan Effective Date on terms materially consistent with the Term Sheet
• Mutual Releases between the DIP Lenders (including Brookfield) and Prime Capital, excluding claims arising from fraud, gross negligence or intentional misconduct

Cash Collateral

• “Cash Collateral” means all of the Debtors’ cash, wherever located and held, including cash in deposit accounts, that constitutes or will constitute “cash collateral” of any of the DIP Secured Parties within the meaning of section 363(a) of the Bankruptcy Code
• Nothing in the Final Order or the DIP Documents permits the Debtors to use any cash collateral that constitutes collateral of the Prepetition A-B/D-G Secured Parties, and no such party’s consent to the use of Prepetition A-B/D-G Collateral (including cash collateral) is deemed given, with all rights and remedies expressly reserved
• All rights of the Debtors to seek authority to use Cash Collateral on a consensual or non-consensual basis, and any rights of applicable creditors to contest such relief, are fully preserved

Interest Rate

• Tranche 1 Loans: 13.00% per annum, payable in kind by being added to the outstanding principal on the last Business Day of each calendar quarter, subject to reduction for the applicable cash-pay amount, if any, required because payments on account of interest or fees are made in respect of Midco Debt during the relevant period
• Tranche 2 Loans: 12.50% per annum, payable in kind by being added to the outstanding principal on the last Business Day of each calendar quarter, subject to reduction for the applicable cash-pay amount, if any, required because payments on account of interest or fees are made in respect of Midco Debt during the relevant period
• Default Rate Increase: an additional 3.00% per annum during the continuance of an Event of Default, accruing automatically and without notice or further order of the Court
• All interest and fees are calculated on the basis of a 360-day year for the actual number of days elapsed

Fees

• Original Issue Discount: 5.00% of the Tranche 1 New Money Commitments, fully earned and payable on the date of the first drawing of the Tranche 1 New Money Loans; no original issue discount applies to the Tranche 2 Loans
• Exit Premium: 5.00%, fully earned on the date of the first drawing of Tranche 1 Loans and due and payable upon any refinancing or prepayment of the Tranche 1 Loans (whether voluntary or mandatory) and on the Maturity Date; if the DIP Administrative Agent or any DIP Lender successfully credit bids all or any material portion of the Tranche 1 obligations or purchases all or any portion of the Tranche 1 Collateral, the Exit Premium shall be applied to such credit bid or purchase; no Exit Premium is payable with respect to the Tranche 2 Loans
• Ticking Fee: 6.50%, fully earned and payable in kind on all committed and undrawn amounts of Tranche 1 Loans; no Ticking Fee applies to the Tranche 2 Loans
• Prepayment Premium:
  • As of the date of any acceleration, repayment or prepayment (whether voluntary or mandatory), the excess (if any) of (i) the product of the Prepayment Multiple and the aggregate original principal amount of the DIP Loans being accelerated, repaid or prepaid, less (ii) the aggregate amount of all prior or concurrent cash payments of interest or interest paid in kind with respect to the DIP Loans; if clause (ii) equals or exceeds clause (i), the Prepayment Premium is deemed to be $0
  • Prepayment Multiple: 1.75 with respect to Tranche 1 Loans and 1.50 with respect to Tranche 2 Loans
  • Fully earned as of the date of the first drawing of the DIP Loans
• Minimum Return (MOIC):
  • Tranche 1 MOIC: a minimum aggregate return of 1.75 times the aggregate principal amount of the Tranche 1 Loans, applicable in all circumstances of repayment, prepayment, acceleration, conversion to exit financing, or credit bid
  • Tranche 2 MOIC: a minimum aggregate return of 1.50 times the aggregate funded principal amount of the Tranche 2 Loans (including Prime Capital through its participation interest), applicable in all circumstances of repayment, prepayment, acceleration, conversion to exit financing, or credit bid
• Agency Fees: as agreed with the DIP Administrative Agent
• Nature of Fees and Premiums: non-refundable under all circumstances

Maturity

• The earliest to occur of, among other things:
  • Three months from the Closing Date
  • The consummation of a sale of all or a material portion of the assets of the DIP Loan Parties, including pursuant to an Acceptable Sale
  • The earlier of the effective date and the date of substantial consummation of a confirmed plan of reorganization
  • The date the Bankruptcy Court orders the conversion of the bankruptcy case of any Obligor to a Chapter 7 liquidation
  • The acceleration of the loans or termination of the commitments under either DIP Facility, including as a result of an Event of Default
  • The date that is 3 Business Days after the Petition Date if the Interim Order Entry Date has not occurred by such date
  • The date that is 35 days after the Interim Order Entry Date if the Final Order Entry Date has not occurred by such date
• All DIP Loans made under the Interim Facility are due and payable 35 days after entry of the Interim Order, or such earlier date upon the occurrence of a maturity event, unless a Final Order satisfactory to the Required DIP Lenders has been entered on or before such date
• On the Maturity Date, all DIP Loans and other obligations shall be indefeasibly repaid in full in cash, unless the DIP Lenders agree to convert the DIP Facility to an exit facility
• Voluntary Prepayment: subject to payment of the Prepayment Premium and Exit Premium, the Debtors may, at any time, repay the loans and/or reduce the DIP Commitments, in each case in full but not in part
• Conversion: in lieu of repayment in cash, the Required DIP Lenders may elect to convert all DIP Loans into “exit” or “take-back” indebtedness of the reorganized Debtors on terms identical to the DIP Loans except for the maturity date, including an interest rate of 12.5% per annum, payable in cash upon certain liquidity and other metrics to be agreed, and the restrictions on indebtedness of the Tranche 2 Obligors

Carve Out

• Fees payable to the Clerk of the Court and the U.S. Trustee under 28 U.S.C. § 1930(a), plus interest at the statutory rate
• Chapter 7 Trustee Fee: reasonable fees and expenses up to $50,000 incurred by a trustee under section 726(b) of the Bankruptcy Code
• Allowed Professional Fees of Professional Persons incurred at any time before or on the first Business Day following delivery of a Carve-Out Trigger Notice
• Post-Carve-Out Trigger Notice Cap: Allowed Professional Fees not to exceed $750,000 incurred after the first Business Day following delivery of the Carve-Out Trigger Notice
• The Carve-Out is senior to all DIP Liens, DIP Superpriority Claims, and any and all other DIP Obligations, Prepetition Obligations, or liens securing the foregoing
• Professional Fee Escrow: DIP Loan proceeds equal to the Projected Professional Fees are funded on or about the Interim Order Entry Date into the trust account of the Debtors’ restructuring counsel, subject to a first-priority lien in favor of the DIP Administrative Agent but subject to the priority position of the Carve-Out, and used solely to pay Allowed Professional Fees

Use of Proceeds

• Provide working capital and other general corporate purposes — in the case of the Tranche 1 Loans, of the Tranche 1 Borrowers and their subsidiaries, and in the case of the Tranche 2 Loans, of the Tranche 2 Borrowers; provided that proceeds of Discretionary Delayed Draws and Incremental Tranche 2 Loans are used solely for construction and development expenses as specified
• Pay the reasonable and documented fees due to the DIP Lenders under the DIP Facility
• Pay the reasonable and documented professional fees and expenses of the DIP Lenders, including those incurred in connection with the preparation, negotiation, documentation and court approval of the DIP Facility and the DIP Loan Documents
• Pay administration costs of the Chapter 11 Cases and claims or amounts approved by the Bankruptcy Court for the Borrowers
• Fund the Carve Out

Credit Bid

• Subject to the lien priorities set forth in the Final Order, the DIP Administrative Agent, acting at the direction of the Required DIP Lenders, shall have the right to credit bid, and be an “acceptable bidder,” up to the full amount of the obligations under the applicable Tranche 1 Facility or Tranche 2 Facility in any sale of the applicable Tranche 1 Collateral or Tranche 2 Collateral, without further court order; such credit bid right applies only to DIP Collateral and not to the assets of any Debtor or non-Debtor entity that is not a DIP Loan Party, and shall not include the amount of the Rollup Loans unless all allowed unsecured claims against the Debtor whose assets are the subject of the credit bid have been or will be paid in full in accordance with the contemplated sale or plan
• Subject to section 363(k), the Prepetition Credit Facility Secured Parties, acting through the applicable Prepetition Credit Facility Agents, shall have the right to credit bid up to the full amount of the obligations of the Prepetition Credit Facility in any sale or disposition of the Prepetition Collateral
• Subject to section 363(k), the applicable Prepetition A-B/D-G Agents shall have the right to credit bid up to the full amount of the applicable Prepetition A-B/D-G Secured Obligations in any sale or disposition of the Prepetition A-B/D-G Collateral

Avoidance Actions

• Avoidance Actions under sections 502(d), 544, 545, 547, 548, 549, 550, and 724(a) of the Bankruptcy Code (and similar provisions of applicable state, federal or foreign law) constitute Excluded Collateral, and prior to entry of the Final Order the proceeds of Avoidance Actions are also excluded
• Upon entry of the Final Order, the proceeds of Avoidance Actions are included in the DIP Collateral

Events of Default

• Customary events, including without limitation: breach of the DIP Budget / Budget Variance; failure of the DIP Order to create valid perfected liens; failure to enter the Final Order within 35 days of the Interim Order Entry Date; conversion to Chapter 7; dismissal without provision for DIP repayment; appointment of a trustee or an examiner with enlarged powers; obtaining alternate financing or non-consensual cash-collateral use; unauthorized prepetition-claim payments; invalidation or challenge of DIP liens/claims; prohibited asset sales; termination/modification of exclusivity; a final money judgment or unstayed creditor action above $1 million; injunction or material loss of business/assets; and the Milestone Events of Default described above

Challenge Period and Budget

• As of the Petition Date, the Debtors were indebted in respect of the Prepetition Brookfield Facilities in the aggregate principal amount of not less than:
  • $271,294,118 under the Prepetition Credit Facility
  • $10,197,982 under the Prepetition Bridge Facility
  • $1,900,000 under the Prepetition Incremental Facility
• As of the Petition Date, the Debtors were indebted in respect of the Prepetition A-B/D-G Facilities in the aggregate principal amount of not less than:
  • $43,947,049 under the Prepetition Alpha Facility
  • $59,023,724 under the Prepetition Bravo Facility
  • $95,833,165 under the Prepetition Delta/Echo Facility
  • $83,950,278.50 under the Prepetition Foxtrot/Gamma Facility
• The Debtors’ stipulations, admissions, agreements and releases are binding on all parties in interest unless a party with requisite standing timely files a Challenge on or before the later of:
  • As to the Creditors’ Committee only, 60 calendar days after its appointment
  • As to a chapter 11 or chapter 7 trustee appointed prior to the end of 75 calendar days after entry of the Interim Order, the later of 75 calendar days after entry of the Interim Order and 30 calendar days after its appointment
  • As to all other parties in interest, 75 calendar days after entry of the Interim Order
  in each case no later than the date of entry of an order approving a sale of all or substantially all of the Debtors’ assets, or such later date agreed in writing by the requisite parties or ordered by the Court
• Proceeds of the DIP Loans and/or DIP Collateral may be used by a Creditors’ Committee to investigate (but not to prosecute or initiate prosecution of) the claims and liens of, and potential claims against, the Brookfield Secured Parties and the Prepetition A-B/D-G Secured Parties, up to an aggregate cap of no more than $100,000
• DIP Budget:
  • A rolling 13-week statement of receipts and disbursements of the Obligors, broken down by week, including anticipated uses of the DIP Facility, with professional fees and expenses and the use of proceeds with respect to the Tranche 1 Facility and Tranche 2 Facility each set out in a separate line item
  • The Debtors delivered an Initial 13-week DIP Budget, filed at Dkt. No. 90, to be updated through every fourth Friday occurring after the Petition Date (or earlier if necessary), subject to the approval of the Required DIP Lenders

Securities and Priorities

• Pursuant to section 364(c)(1), all DIP Obligations constitute allowed superpriority administrative expense claims against the DIP Loan Parties only, on a joint and several basis among the Tranche 1 Borrowers in respect of the Tranche 1 Facility and among the Tranche 2 Borrowers in respect of the Tranche 2 Facility, with priority over any and all intercompany, administrative expense, and unsecured claims, except that such claims are junior to the claims under the applicable Prepetition Opco Facilities and to the Carve-Out, and are not payable from the proceeds of the Excluded Collateral
• As security for the DIP Obligations, the DIP Administrative Agent is granted the following DIP Liens on the DIP Collateral of the DIP Loan Parties only, subject to the Carve-Out:
  • Pursuant to section 364(c)(2), fully perfected first-priority liens on all unencumbered prepetition and postpetition property of the Tranche 1 Borrowers (in the case of the Tranche 1 Facility) and of the Tranche 2 Borrowers (in the case of the Tranche 2 Facility), other than the Excluded Collateral
  • Pursuant to section 364(c)(3), fully perfected junior liens on all prepetition and postpetition property of the applicable Borrowers subject to valid, perfected, enforceable and non-avoidable liens existing immediately prior to the Petition Date, other than the Excluded Collateral
  • Pursuant to section 364(d), liens senior to any lien securing any intercompany or affiliate claim owed by the applicable Borrowers
• “DIP Collateral” means all owned or hereafter acquired assets and property of the DIP Loan Parties, including inventory, accounts receivable, equipment, real property and leaseholds, investment property, insurance proceeds, deposit accounts, rights under leases and contracts, intellectual property, and capital stock of subsidiaries, and the proceeds thereof, including all intercompany notes and claims and all equity interests in the DIP Loan Parties and their subsidiaries, but excluding the Excluded Collateral; DIP Collateral does not include any assets of GP Poland or any other Debtor or non-Debtor entity that is not a DIP Loan Party
• Tranche 1 Collateral secures the obligations of the Tranche 1 Borrowers under the Tranche 1 Facility, and Tranche 2 Collateral secures the obligations of the Tranche 2 Borrowers under the Tranche 2 Facility; the Tranche 1 Lenders have no recourse to the Tranche 2 Borrowers or the Tranche 2 Collateral, and the Tranche 2 Lenders have no recourse to the Tranche 1 Borrowers or the Tranche 1 Collateral
• All liens are effective and automatically perfected as of the Interim Order Entry Date without the necessity of executing or filing any mortgages, security agreements, pledge agreements, financing statements or other documents, though the DIP Administrative Agent may, in its discretion, file or record such documents, including in applicable non-U.S. jurisdictions
• The DIP Liens shall not be subordinated to or made pari passu with any avoided-and-preserved lien under section 551, any postpetition liens, any intercompany or affiliate liens, any other lien under sections 361, 363 or 364, or any lien held by an affiliate to secure a claim against a DIP Loan Party, in each case other than the Carve-Out
• The DIP Order prohibits the Debtors from incurring any indebtedness that ranks pari passu with or senior to the DIP Loans and other obligations under the DIP Facility, or that benefits from a first-priority lien under section 364 of the Bankruptcy Code

Adequate Protection

Prepetition Senior Secured Parties

• Adequate Protection provided, if any, subject to ongoing diligence and negotiation
• Each of the Brookfield Secured Parties is entitled to all of the rights and benefits of section 552(b) of the Bankruptcy Code, and the “equities of the case” exception under section 552(b) shall not apply to the Brookfield Secured Parties with respect to any Prepetition Collateral
• The Debtors and the DIP Loan Parties shall continue to maintain and insure the Prepetition Collateral, the DIP Collateral, and the Prepetition A-B/D-G Collateral as required under the applicable loan documents
• The Debtors shall provide the Prepetition A-B/D-G Agents with the reporting and other information provided to the DIP Secured Parties under the DIP Documents, and shall exercise commercially reasonable efforts to provide additional reporting reasonably requested and required under the Prepetition A-B/D-G Loan Documents, to the extent reasonably available

Waivers

• Section 506(c): except to the extent of the Carve-Out, no costs or expenses of administration of the Chapter 11 Cases or any Successor Cases shall be charged against or recovered from the DIP Collateral and the Prepetition Collateral, and the Debtors waive their right to surcharge the DIP Collateral and the Prepetition Collateral
• Section 552(b): the “equities of the case” exception shall not apply with respect to the DIP Collateral and the Prepetition Collateral, including with respect to the proceeds, products, offspring or profits of any Prepetition Collateral
• Marshaling: in no event shall any of the DIP Secured Parties or the Brookfield Secured Parties be subject to the equitable doctrine of “marshaling” or any similar doctrine with respect to the DIP Collateral, the DIP Obligations, the Prepetition Obligations, or the Prepetition Collateral

Permitted Variance

• The Debtors shall at all times comply with the Approved Budget, subject to the Permitted Variance
• Commencing on the fifth Friday following entry of the Interim Order and on a bi-weekly basis thereafter, tested on a cumulative basis over a rolling four-week period, the unfavorable variance of the actual aggregate operating disbursements of the Debtors (excluding professional fees and DIP Lender approved debt service payments specified in the DIP Budget) shall not exceed 25.0%
• A breach of the Permitted Variance constitutes an Event of Default

Milestones

• Entry of the Interim Order, in form and substance satisfactory to the Required DIP Lenders, no later than 3 Business Days after the Petition Date
• If elected by the Required DIP Lenders, Bankruptcy Court approval of the Bidding Procedures Order with respect to a sale of all or substantially all of the Debtors’ assets no later than 15 days after entry of the Interim Order
• Entry of the Final Order, in form and substance reasonably satisfactory to the Required DIP Lenders, no later than 35 days after the Petition Date
• If elected by the Required DIP Lenders, Bankruptcy Court approval of the Sale Order for an Acceptable Sale (a sale generating net cash proceeds sufficient to, and required to, repay the DIP Loans and all other obligations under the DIP Loan Documents in full in cash) no later than 30 days after entry of the Bidding Procedures Order
• Failure to satisfy any such milestone constitutes a “Milestone Event of Default,” upon which any remaining DIP Commitments are suspended pending entry of Expedited Sale Procedures and Amended DIP Documents acceptable to the Required DIP Lenders; if the Debtors do not file motions seeking such relief on an expedited basis within 5 days, or such orders are not entered within 10 days, the DIP Administrative Agent (at the direction of the Required DIP Lenders) may treat it as any other Event of Default and exercise all rights and remedies