FIRST AMENDMENT TO AMENDED AND RESTATED ABL CREDIT AGREEMENT
Exhibit 10.44
FIRST AMENDMENT TO AMENDED AND RESTATED ABL CREDIT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED ABL CREDIT AGREEMENT (this “Amendment”), dated as of December 23, 2020, in respect of the Amended and Restated ABL Credit Agreement, dated as of March 6, 2019 (as amended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”; and the Credit Agreement as amended by this Amendment, the “Amended Credit Agreement”), among Tesla, Inc. (the “Company”, and together with each Wholly-Owned Domestic Subsidiary of the Company that becomes a U.S. Borrower pursuant to the terms of the Credit Agreement, collectively, the “U.S. Borrowers”), Tesla Motors Netherlands B.V. (“Tesla B.V.”, and together with each Wholly-Owned Dutch Subsidiary of Tesla B.V. that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”), the lenders from time to time party thereto (the “Lenders”), Deutsche Bank AG New York Branch, as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), and the other agents party thereto.
RECITALS:
WHEREAS, the Company has requested an amendment to the Credit Agreement and certain other Credit Documents;
WHEREAS, Tesla Motors Limited, a company incorporated in England and Wales with registered number 04384008 and having its registered office at 000 Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxx XX0 0XX (“Tesla UK” and, together with each other Wholly-Owned English Subsidiary of Tesla UK that becomes a Borrower pursuant to the terms of the Amended Credit Agreement, collectively, the “UK Borrowers” and the UK Borrowers, together with the Dutch Borrowers and the U.S. Borrowers, collectively, the “Borrowers”) desires to execute and deliver this Amendment in order to become a party to the Credit Agreement and other Credit Documents as a Borrower;
WHEREAS, the UK Borrower will obtain benefits from the incurrence of Loans by the UK Borrowers, and the issuance of, and participation in, Letters of Credit for the account of the UK Borrowers, in each case pursuant to the Amended Credit Agreement, and, accordingly, desires to execute this Amendment in order to induce the Lenders to make Loans to the UK Borrowers and issue, and/or participate in, Letters of Credit for the account of the UK Borrowers;
WHEREAS, pursuant to Sections 13.05 and 13.13 of the Credit Agreement, the Credit Agreement may be amended to add additional Borrowers and make other requested amendments with the written consent of the Lenders and each Credit Party thereto; and
WHEREAS, the parties now wish to amend the Credit Agreement and certain other Credit Documents in certain respects.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:
Section 1.Defined Terms. Unless otherwise specifically defined herein, each term used herein (including in the recitals above) has the meaning assigned to such term in the Amended Credit Agreement.
Section 2.Joinder and Assumption of Obligations.
(a)Tesla UK, by its signature below, becomes a “Borrower” and a “UK Borrower” for all purposes under the Amended Credit Agreement.
(b)Tesla UK, by its signature below, (i) agrees to perform, comply with and be bound by all of the terms, provisions, conditions, and covenants of the Amended Credit Agreement applicable to it as a “Borrower” thereunder or a “UK Borrower” thereunder, (ii) agrees that the Administrative Agent shall have all rights, remedies and interests, including security interests in and liens upon the Collateral granted to the Administrative Agent or the Lenders under and pursuant to the Credit Documents, with respect to Tesla UK and its properties and assets, and (iii) assumes and agrees to be directly liable to the Administrative Agent and Lenders for all Obligations of Tesla UK under, contained in, or arising pursuant to the Amended Credit Agreement or any of the other Credit Documents.
Section 3.Amendments to Credit Agreement; other Credit Documents. The parties hereto agree that on the Amendment Effective Date (as defined below), the Credit Agreement, the U.S. Guaranty and the Dutch Guaranty shall be amended as follows:
(a)The Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A to this Amendment.
(b)Exhibit B-5 to the Amended Credit Agreement shall be in the form set forth in Exhibit B attached to this Amendment.
(c)Exhibit O to the Amended Credit Agreement shall be in the form set forth in Exhibit C attached to this Amendment.
(d)Exhibit P to the Amended Credit Agreement shall be in the form set forth in Exhibit D attached to this Amendment.
(e)Exhibit Q to the Amended Credit Agreement shall be in the form set forth in Exhibit E attached to this Amendment.
(f)Schedule 1.01(a) to the Amended Credit Agreement shall be in the form set forth in Exhibit F attached to this Amendment.
(g)The U.S. Guaranty is hereby amended such that, after giving effect to the Amendment, each reference therein to a “Borrower” or the “Borrowers” shall be deemed to include the UK Borrower.
(h)The Dutch Guaranty is hereby amended by deleting the last sentence of the first paragraph of Section 1 thereof and replacing such sentence with the following sentence: “For the avoidance of doubt, in no event shall the Guaranteed Obligations of any Guarantor include any Obligations of any U.S. Borrower, any U.S. Subsidiary Guarantor or any UK Borrower.”
Section 4.Conditions. This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “Amendment Effective Date”):
(a)The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by the Credit Parties, the Administrative Agent and the Lenders.
(b)Each of the representations and warranties made by the Credit Parties in or pursuant to the Credit Agreement and each of the representations and warranties made by the Credit Parties in or pursuant to the other Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified or subject to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects) on and as of the Amendment Effective Date as if made on and as of such date except for such representations and warranties expressly stated to be made as of an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, except that any representation and warranty that is qualified or subject to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such earlier date).
(c)No Default or Event of Default shall exist on the Amendment Effective Date.
(d)The Administrative Agent shall have received an officer’s certificate from an Authorized Officer of the Company, dated as of the Amendment Effective Date, certifying that each condition set forth in Sections 4(b) and (c) hereof have been satisfied on and as of the Amendment Effective Date.
(e)The Administrative Agent shall have received from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., special New York counsel to the Credit Parties, an opinion in form and substance reasonably satisfactory to the Administrative Agent addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Amendment Effective Date covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(f)The Administrative Agent shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special English law counsel to the Administrative Agent, an opinion in form and substance reasonably satisfactory to the Administrative Agent addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Amendment Effective Date covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
(g)The Administrative Agent shall have received a certificate from each Credit Party, dated the Amendment Effective Date, signed by an Authorized Officer of such Credit Party (or, with respect to Tesla B.V. or Tesla UK, one of its directors), and, if signed by an Authorized Officer of such Credit Party (or director), attested to by another Authorized Officer (or director) of such Credit Party, in the form of Exhibit E-2 to the Credit Agreement (or such other form reasonably acceptable to the Administrative Agent) with appropriate insertions, together with copies of the certificate or articles of incorporation and by-laws (or other equivalent organizational documents relating to any Dutch Credit Party and UK Credit Party), as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such certificate (including, with respect to each UK Credit Party, (i) resolutions of the shareholder of that UK Credit Party, (ii) a copy of the specimen signatures of persons duly authorized to sign the Credit Documents (including, without limitation, any Notice of Borrowing) on behalf of that UK Credit Party, and (iii) confirming that borrowing, guaranteeing or securing (as appropriate) the Total Revolving Loan Commitment would not cause any borrowing, guarantee, security or similar limit binding
on it to be exceeded), and each of the foregoing shall be in form and substance reasonably acceptable to the Administrative Agent.
(h)The Administrative Agent shall have received a good standing certificate (or equivalent) for each Credit Party (excluding Tesla UK) from its jurisdiction of formation.
(i)All fees required to be paid to the Administrative Agent and the Lenders in connection herewith, accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of counsel) and other compensation due and payable to the Administrative Agent and the Lenders on or prior to the Amendment Effective Date shall have been paid to the extent invoices therefor have been provided to the Borrowers at least one Business Day in advance of the Amendment Effective Date.
(j)The Administrative Agent shall have a received a solvency certificate from the vice president, treasurer of the Company in the form of Exhibit J to the Credit Agreement.
(k)The Administrative Agent shall have a received the results of a recent search, by a Person reasonably satisfactory to the Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property, the creation of security interests in, which is governed by the UCC of any Credit Party (to the extent applicable) in the jurisdiction of formation of each such entity and the location (state and county) where such entities maintain their chief executive offices, together with copies of all such filings disclosed by such search.
(l)The Administrative Agent shall have received evidence or otherwise be reasonably satisfied that all other actions required to be taken under each Security Agreement on or prior to the Amendment Effective Date to perfect and protect the security interests purported to be created by each Security Agreement have been taken (other than, in respect of any Security Agreement signed by a UK Credit Party, proper filings to be made in the appropriate filing offices against such UK Credit Party), and each Security Agreement shall be in full force and effect.
(m)(i) The Administrative Agent shall have received, at least five days prior to the Amendment Effective Date, all documentation and other information regarding the Borrowers requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrowers at least 10 days prior to the Amendment Effective Date and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Amendment Effective Date, any Lender that has requested, in a written notice to the Company at least 10 days prior to the Amendment Effective Date, a Beneficial Ownership Certification in relation to the applicable Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Amendment, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(n)The UK Borrower shall have duly authorized, executed and delivered the UK Guaranty in the form of Exhibit P, and the UK Guaranty shall be in full force and effect.
(o)The UK Borrower shall have duly authorized, executed and delivered the UK Security Agreement in the form of Exhibit Q, covering all of such UK Borrower’s Security Agreement Collateral.
(p)The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each
improved Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Credit Party relating thereto) and, with respect to any Mortgaged Property on which any “building” (as defined in the Flood Insurance Laws) is located in a special flood hazard area, evidence of flood insurance as and to the extent required under Section 9.03 of the Credit Agreement.
Section 5.Representations and Warranties, etc. The Borrowers hereby confirm, reaffirm and restate that each of the representations and warranties made by any Credit Party in the Credit Documents is true and correct in all material respects on and as of the Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects). The Borrowers represent and warrant that, immediately after giving effect to the occurrence of the Amendment Effective Date, no Default or Event of Default has occurred and is continuing. The Borrowers represent and warrant that each Credit Party (i) has the Business power and authority to execute, deliver and perform the terms and provisions of this Amendment and has taken all necessary Business action to authorize the execution, delivery and performance by such Credit Party thereof and (ii) has duly executed and delivered this Amendment, and that this Amendment constitutes a legal, valid and binding obligation of the Borrowers enforceable against each Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). The Borrowers represent and warrant that the information included on any Beneficial Ownership Certification provided on or prior to the Amendment Effective Date to any Lender in connection with this Amendment is true and correct in all respects.
Section 6.Reaffirmation. Each Credit Party hereby agrees that (i) all of its Obligations under the Credit Documents shall remain in full force and effect on a continuous basis after giving effect to this Amendment and (ii) each Credit Document, as amended hereby (if applicable), is ratified and affirmed in all respects.
Section 7.No Novation. Neither this Amendment nor the execution, delivery or effectiveness of this Amendment shall extinguish or in any way limit or impair the obligations outstanding under the Security Documents or the other Credit Documents or discharge or release the lien or priority of the Security Documents. Nothing herein contained shall be construed as a substitution or novation of the Credit Agreement, any other Credit Document or of the obligations outstanding under the Security Documents or the other Credit Documents or instruments securing the same, which shall remain in full force and effect, except to any extent expressly modified hereby or by instruments executed concurrently herewith. Nothing implied in this Amendment, the Credit Agreement, the Amended Credit Agreement, the Security Documents, the other Credit Documents or in any other document contemplated hereby or thereby shall (a) be construed as a release or other discharge of any Borrower or any other Credit Party from any of its obligations and liabilities as a “U.S. Borrower,” “Dutch Borrower”, “UK Borrower”, “Borrower”, “Guarantor,” “Credit Party,” “Obligor” or “Grantor” under the Credit Agreement or the Amended Credit Agreement, the Security Documents or any other Credit Document or (b) be construed to limit, impair, constitute a waiver of or otherwise affect the rights and remedies of any Lender or Agent under the Amended Credit Agreement or any other Credit Document. Each of the Credit Documents shall remain in full force and effect, until (as applicable) and except to any extent expressly modified hereby or in connection herewith.
Section 8.Governing Law. This Amendment and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York (without regard to
conflicts of law principles that would result in the application of any law other than the law of the State of New York).
Section 9.Effect of This Amendment. Nothing herein shall be deemed to entitle any party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in any Credit Document in similar or different circumstances.
Section 10.Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, scan, photograph or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paperbased recordkeeping system, as the case may be. “Electronic Signatures” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
Section 11.Miscellaneous. This Amendment shall constitute a Credit Document for all purposes of the Amended Credit Agreement. The Borrowers shall pay all reasonable fees, costs and expenses of the Administrative Agent incurred in connection with the negotiation, preparation and execution of this Amendment and the transactions contemplated hereby.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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By: |
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/s/ Xxxxx Xxxxx |
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Name: |
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Xxxxx Xxxxx |
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Title: |
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Vice President, Treasurer |
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TESLA MOTORS NETHERLANDS B.V. |
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/s/ Xxxxxxx Xxxxxxx |
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Name: |
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Xxxxxxx Xxxxxxx |
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Title: |
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Director |
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TESLA MOTORS LIMITED |
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/s/ Xxxxxxx Xxxxxxx |
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Name: |
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Xxxxxxx Xxxxxxx |
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Title: |
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Director |
[First Amendment – Signature Page]
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DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent, Collateral Agent, Issuing Lender, Swingline Lender and a Lender |
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By: |
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/s/ Xxxxx Xxxxx |
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Name: |
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Xxxxx Xxxxx |
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Title: |
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Managing Director |
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By: |
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/s/ Xxxxxxx Xxxxxxx |
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Name: |
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Xxxxxxx Xxxxxxx |
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Title: |
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Director |
[First Amendment – Signature Page]
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Bank of America, N.A. as an Issuing Lender and a Lender |
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By: |
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/s/ Xxx Xxxxx |
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Name: |
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Xxx Xxxxx |
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Title: |
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Senior Vice President |
[First Amendment – Signature Page]
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BARCLAYS BANK PLC, as a Lender |
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/s/ Xxxxxx Xxxxxxxx |
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Name: |
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Xxxxxx Xxxxxxxx |
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Vice President |
[First Amendment – Signature Page]
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CITIBANK, N.A., as a Lender |
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/s/ Xxxx Xxxxx |
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Name: |
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Xxxx Xxxxx |
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Title: |
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Vice President & Director |
[First Amendment – Signature Page]
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Xxxxxxx Sachs Bank USA, as a Lender |
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By: |
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/s/ Xxxxx Xxxxx |
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Name: |
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Xxxxx Xxxxx |
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Title: |
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Authorized Signatory |
[First Amendment – Signature Page]
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XXXXXX XXXXXXX SENIOR FUNDING INC., as a Lender |
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/s/ Xxxxxxxx Xxxxxx |
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Name: |
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Xxxxxxxx Xxxxxx |
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Title: |
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Vice President |
[First Amendment – Signature Page]
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CREDIT SUISSE, AG CAYMAN ISLANDS BRANCH, as a Lender |
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/s/ Xxxxx Xxxxxx |
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Name: |
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Xxxxx Xxxxxx |
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Title: |
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Authorized Signatory |
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By: |
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/s/ Xxxxx Xxxxxxx |
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Name: |
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Xxxxx Xxxxxxx |
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Title: |
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Authorized Signatory |
[First Amendment – Signature Page]
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Société Générale, as a Lender |
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/s/ Xxxx Xxxxx |
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Name: |
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Xxxx Xxxxx |
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Director |
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Xxxxx Fargo Bank, National Association, as a Lender |
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/s/ Xxxx Xxxxxxx |
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Name: |
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Xxxx Xxxxxxx |
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Authorized Signatory |
[First Amendment – Signature Page]
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Bank of the West, as a Lender |
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By: |
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/s/ Xxxxxxx Xxxxxxx |
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Name: |
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Xxxxxxx Xxxxxxx |
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Title: |
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Director |
[First Amendment – Signature Page]
[To be attached]
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AMENDED AND RESTATED ABL CREDIT AGREEMENT1 among TESLA, INC., VARIOUS LENDERS, DEUTSCHE BANK AG NEW YORK BRANCH, XXXXXXX XXXXX BANK USA, XXXXXX XXXXXXX SENIOR FUNDING INC. and BANK OF AMERICA, N.A., as SYNDICATION AGENTS, and SOCIÉTÉ GÉNÉRALE and XXXXX FARGO BANK, NATIONAL ASSOCIATION, ________________________________ DEUTSCHE BANK SECURITIES INC., BANK OF AMERICA, N.A., BARCLAYS BANK PLC, CITIBANK, N.A., XXXXXXX XXXXX BANK USA, and XXXXXX XXXXXXX SENIOR FUNDING INC.,
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1 |
As amended by that certain First Amendment to Amended and Restated ABL Credit Agreement, dated as of December 23, 2020 among the Company, Tesla B.V., Tesla UK, the lenders party thereto, the Collateral Agent and the Administrative Agent. |
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Page |
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1 |
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1.01. |
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Defined Terms |
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1 |
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1.02. |
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Other Definitional Provisions |
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1.03. |
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Rates |
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78 |
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2.01. |
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The Commitments |
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2.02. |
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Minimum Amount of Each Borrowing |
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2.03. |
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Notice of Borrowing |
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2.04. |
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Disbursement of Funds |
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2.05. |
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Notes |
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2.06. |
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Conversions |
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2.07. |
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Pro Rata Borrowings |
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2.08. |
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Interest |
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2.09. |
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Interest Periods |
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2.10. |
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Increased Costs, Illegality, etc |
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2.11. |
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Compensation |
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2.12. |
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Lending Offices and Affiliate Lenders for Loans in Available Currency |
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2.13. |
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Replacement of Lenders |
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2.14. |
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Incremental Commitments |
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2.15. |
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Defaulting Lenders |
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2.16. |
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[Reserved] |
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2.17. |
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[Reserved] |
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2.18. |
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The Company as Agent for Borrowers |
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2.19. |
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Extension of Revolving Loan Commitments |
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3.01. |
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Letters of Credit |
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3.02. |
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Maximum Letter of Credit Outstandings; Currencies; Final Maturities; Collateralized Letters of Credit |
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3.03. |
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Letter of Credit Requests |
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3.04. |
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Letter of Credit Participations |
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3.05. |
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Agreement to Repay Letter of Credit Drawings |
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3.06. |
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Increased Costs |
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3.07. |
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Extended Revolving Loan Commitments |
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3.08. |
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Conflict |
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4.01. |
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Fees |
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4.02. |
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Voluntary Termination of Revolving Loan Commitments |
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4.03. |
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Mandatory Reduction of Commitments |
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5.01. |
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Voluntary Prepayments |
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Mandatory Repayments; Cash Collateralization |
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5.03. |
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Method and Place of Payment |
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5.04. |
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Net Payments |
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6.01. |
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Effective Date; Notes |
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6.02. |
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Officer’s Certificate |
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6.03. |
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Opinions of Counsel |
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6.04. |
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Company Documents; Proceedings; etc |
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6.05. |
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Adverse Change; Approvals |
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6.06. |
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[Reserved] |
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6.07. |
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Guaranty |
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6.08. |
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[Reserved] |
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6.09. |
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Security Agreement |
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6.10. |
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Financial Statements |
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6.11. |
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Solvency Certificate; Insurance Certificates |
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6.12. |
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Fees, Expenses |
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6.13. |
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Initial Borrowing Base Certificate; Outstanding Indebtedness |
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6.14. |
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Appraisals; Field Examinations |
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6.15. |
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Patriot Act |
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7.01. |
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No Default; Representations and Warranties |
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7.02. |
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Notice of Borrowing; Letter of Credit Request |
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7.03. |
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Borrowing Limitations |
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7.04. |
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Collateralized Letters of Credit |
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8.01. |
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Company Status |
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8.02. |
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Power and Authority |
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8.03. |
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No Violation |
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8.04. |
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Approvals |
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8.05. |
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Financial Statements; Financial Condition |
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8.06. |
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Litigation |
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8.07. |
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True and Complete Disclosure |
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8.08. |
|
Use of Proceeds; Margin Regulations |
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8.09. |
|
Tax Returns and Payments |
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8.10. |
|
Compliance with ERISA |
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8.11. |
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Security Documents |
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8.12. |
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8.13. |
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[Reserved] |
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8.14. |
|
Subsidiaries |
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8.15. |
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Compliance with Statutes, etc |
|
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8.16. |
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Investment Company Act |
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8.17. |
|
Environmental Matters |
|
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8.18. |
|
Employment and Labor Relations |
|
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8.19. |
|
Intellectual Property, etc |
|
|
|
8.20. |
|
I |
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8.21. |
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ii
|
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Borrowing Base Calculation |
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8.23. |
|
Anti-Corruption Laws and Sanctions |
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8.24. |
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No Default |
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8.25. |
|
Fiscal Unity |
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||
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||
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9.01. |
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Information Covenants |
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9.02. |
|
Books, Records and Inspections |
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9.03. |
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Maintenance of Property; Insurance |
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9.04. |
|
Existence; Franchises |
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9.05. |
|
Compliance with Laws, etc |
|
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9.06. |
|
Compliance with Environmental Laws |
|
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9.07. |
|
ERISA |
|
|
|
9.08. |
|
[Reserved] |
|
|
|
9.09. |
|
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9.10. |
|
Payment of Taxes |
|
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|
9.11. |
|
Use of Proceeds |
|
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9.12. |
|
Additional Security; Further Assurances; Post-Closing Matters; Additional Borrowers; etc. |
|
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9.13. |
|
Information Regarding Collateral |
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9.14. |
|
COMI |
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||
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||
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10.01. |
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Liens |
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10.02. |
|
Fundamental Changes |
|
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10.03. |
|
Dividends |
|
|
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10.04. |
|
Indebtedness |
|
|
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10.05. |
|
[Reserved] |
|
|
|
10.06. |
|
Transactions with Affiliates |
|
|
|
10.07. |
|
Fixed Charge Coverage Ratio |
|
|
|
10.08. |
|
Modifications of Certain Agreements; Limitations on Voluntary Payments, etc. |
|
|
|
10.09. |
|
Limitation on Certain Restrictions on Subsidiaries |
|
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|
10.10. |
|
Limitations on Certain Issuances of Equity Interests |
|
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10.11. |
|
No Additional Accounts, etc |
|
|
|
10.12. |
|
Use of Proceeds |
|
|
|
10.13. |
|
Fiscal Unity |
|
|
|
10.14. |
|
SolarCity |
|
169 |
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|
||
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||
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11.01. |
|
Payments |
|
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11.02. |
|
Representations, etc. |
|
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11.03. |
|
Covenants |
|
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11.04. |
|
Default Under Other Agreements |
|
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|
11.05. |
|
Bankruptcy, etc. |
|
|
|
11.06. |
|
ERISA |
|
|
|
11.07. |
|
[Reserved] |
|
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|
11.08. |
|
Security Documents |
|
|
|
11.09. |
|
Guaranties |
|
|
|
11.10. |
|
Judgments |
|
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iii
iv
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|||
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14.01. |
|
Nature of Obligations |
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14.02. |
|
Independent Obligation |
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14.03. |
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Authorization |
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14.04. |
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Reliance |
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14.05. |
|
Contribution; Subrogation |
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14.06. |
|
Waiver |
|
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14.07. |
|
Limitation on Dutch Borrower Obligations |
|
|
|
14.08. |
|
Rights and Obligations |
|
|
v
Schedule 1.01(a)Lenders; Commitments
Schedule 13.03Notice Addresses
EXHIBITS:
Exhibit A-1Form of Notice of Borrowing
Exhibit A-2Form of Notice of Conversion/Continuation
Exhibit B-1Form of U.S. Borrower Revolving Note
Exhibit B-2Form of Dutch Borrower Revolving Note
Exhibit B-3Form of U.S. Borrower Swingline Note
Exhibit B-4Form of Dutch Borrower Swingline Note
Exhibit B-5Form of UK Borrower Revolving Note
Exhibit CForm of Letter of Credit Request
Exhibit D-1Form of U.S. Tax Compliance Certificate
Exhibit D-2Form of U.S. Tax Compliance Certificate
Exhibit D-3Form of U.S. Tax Compliance Certificate
Exhibit D-4Form of U.S. Tax Compliance Certificate
Exhibit E-1Form of Officer’s Certificate – Company
Exhibit E-2Form of Officer’s Certificate – Credit Parties
Exhibit FForm of Incremental Commitment Agreement
Exhibit G-1Form of Dutch Guaranty
Exhibit G-2Form of U.S. Guaranty
Exhibit H[Reserved]
Exhibit I-1Form of Dutch Inventory Security Agreement
Exhibit I-2Form of Dutch Receivables Security Agreement
Exhibit I-3Form of Dutch General Security Agreement
Exhibit I-4Form of U.S. Security Agreement
Exhibit JForm of Solvency Certificate
Exhibit KForm of Compliance Certificate
Exhibit LForm of Assignment and Assumption Agreement
Exhibit MForm of Landlord Personal Property Collateral Access Agreement
Exhibit NForm of Joinder Agreement
Exhibit OForm of Borrowing Base Certificate
Exhibit QForm of UK Security Agreement
vi
AMENDED AND RESTATED ABL CREDIT AGREEMENT, dated as of March 6, 2019, among Tesla, Inc., a Delaware corporation (the “Company”, and together with each other Wholly-Owned Domestic Subsidiary of the Company that becomes a U.S. Borrower pursuant to the terms hereof, collectively, the “U.S. Borrowers”), Tesla Motors Netherlands B.V., a company organized under the laws of the Netherlands and a wholly-owned subsidiary of the Company, having its official seat in Amsterdam, the Netherlands and registered with the trade register under number 52601196 (“Tesla B.V.” and, together with each other Wholly-Owned Dutch Subsidiary of Tesla B.V. that becomes a Borrower pursuant to the terms hereof, collectively, the “Dutch Borrowers”, and), Tesla Motors Limited, a company incorporated in England and Wales with registered number 04384008 and having its registered office at 000 Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxx XX0 0XX (“Tesla UK” and, together with each other Wholly-Owned English Subsidiary of Tesla UK that becomes a Borrower pursuant to the terms hereof, collectively, the “UK Borrowers”), and each other Person that becomes a borrower pursuant to Section 9.12(g) hereof (any such Person together with the UK Borrowers, the Dutch Borrowers, together with and the U.S. Borrowers, collectively, the “Borrowers”), the Lenders party hereto from time to time, Deutsche Bank AG New York Branch, as Administrative Agent and Collateral Agent, Xxxxxxx Xxxxx Bank USA, Xxxxxx Xxxxxxx Senior Funding Inc. and Bank of America, N.A., as Syndication Agents, and Société Générale and Xxxxx Fargo Bank, National Association, as Co-Documentation Agents. All capitalized terms used herein and defined in Section 1.01 are used herein as therein defined.
WHEREAS, subject to and upon the terms and conditions set forth herein, the Arrangers have arranged, and the Lenders are willing to make available to the Borrowers, the credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1.Definitions and Accounting Terms.
1.01.Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“20182021 Convertible Notes” shall mean the Company’s 1.501.25% convertible senior notes due JuneMarch 1, 20182021, issued pursuant to the 20182021 Convertible Notes Indenture.
“20182021 Convertible Notes Documents” shall mean the 20182021 Convertible Notes and the 20182021 Convertible Notes Indenture.
“20182021 Convertible Notes Indenture” shall mean the Indenture, dated as of May 22, 2013, between the Company, as issuer, and U.S. Bank National Association, as trustee, as supplemented by the FirstThird Supplemental Indenture, dated as of May 22March 5, 20132014, by and between the Company and U.S. Bank National Association, as trustee, as amended, modified or supplemented from time to time in respect of the 20182021 Convertible Notes in accordance with the terms hereof and thereof.
“20192022 Convertible Notes” shall mean the Company’s 0.252.375% convertible senior notes due March 115, 20192022, issued pursuant to the 20192022 Convertible Notes Indenture.
“20192022 Convertible Notes Documents” shall mean the 20192022 Convertible Notes and the 20192022 Convertible Notes Indenture.
“20192022 Convertible Notes Indenture” shall mean the Indenture, dated as of May 22, 2013, between the Company, as issuer, and U.S. Bank National Association, as trustee, as supplemented by the
SecondFourth Supplemental Indenture, dated as of March 522, 20142017, by and between the Company and U.S. Bank National Association, as trustee, as amended, modified or supplemented from time to time in respect of the 20192022 Convertible Notes in accordance with the terms hereof and thereof.
“20212024 Convertible Notes” shall mean the Company’s 1.252.00% convertible senior notes due March 1, 20212024, issued pursuant to the 20212024 Convertible Notes Indenture.
“20212024 Convertible Notes Documents” shall mean the 20212024 Convertible Notes and the 20212024 Convertible Notes Indenture.
“20212024 Convertible Notes Indenture” shall mean the Indenture, dated as of May 22, 2013, between the Company, as issuer, and U.S. Bank National Association, as trustee, as supplemented by the ThirdFifth Supplemental Indenture, dated as of March 5May 7, 20142019, by and between the Company and U.S. Bank National Association, as trustee, as amended, modified or supplemented from time to time in respect of the 20212024 Convertible Notes in accordance with the terms hereof and thereof.
“2022 Convertible Notes” shall mean the Company’s 2.375% convertible senior notes due March 15, 2022, issued pursuant to the 2022 Convertible Notes Indenture.
“2022 Convertible Notes Documents” shall mean the 2022 Convertible Notes and the 2022 Convertible Notes Indenture.
“2022 Convertible Notes Indenture” shall mean the Indenture, dated as of May 22, 2013, between the Company, as issuer, and U.S. Bank National Association, as trustee, as supplemented by the Fourth Supplemental Indenture, dated as of March 22, 2017, by and between the Company and U.S. Bank National Association, as trustee, as amended, modified or supplemented from time to time in respect of the 2022 Convertible Notes in accordance with the terms hereof and thereof. “30-Day Excess Availability” shall mean, on a given date, the quotient obtained by dividing (a) the sum of each day’s Excess Availability during the 30 consecutive day period immediately preceding such date (or, if shorter, the period commencing on the Effective Date and ending on the day immediately preceding such date) by (b) 30 (or, if applicable, the number of days (which is less than 30) from the Effective Date to the day immediately preceding such date).
“2023 Extended Maturity Date” shall mean July 1, 2023.
“2023 Extended Revolving Loan” shall mean each Revolving Loan pursuant to a 2023 Extended Revolving Loan Commitment.
“2023 Extended Revolving Loan Commitments” shall mean for each Lender, the amount set forth opposite such Lender’s name in Schedule 1.01(a) directly below the column entitled “2023 Extended Revolving Loan Commitment,” as same may be (x) reduced from time to time or terminated pursuant to Sections 4.02, 4.03 and/or 11, as applicable, (y) adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 2.13 or Section 13.04(b) or (z) increased from time to time pursuant to Section 2.14 or 2.19(g).
“ABL Priority Collateral” shall mean (i) at any time when no Permitted Additional Secured Indebtedness is outstanding, the Collateral, and (ii) at all times when any Permitted Additional Secured Indebtedness is outstanding, “ABL Priority Collateral” as defined in the Intercreditor Agreement (which shall be defined on a basis customary for transactions of this type and, in any event, shall include all cash and Cash Equivalents related to Accounts (other than Rental Accounts), all cash and Cash Equivalents subject to a Cash Management Control Agreement, Accounts (other than Rental Accounts), Pledged
2
Equipment, Inventory, assets (other than intellectual property) related to Accounts (other than Rental Accounts), Inventory and Pledged Equipment and proceeds thereof of the Credit Parties) in each case constituting Collateral.
“Acceptable Appraisal” shall mean (a) in respect of Inventory, an appraisal of the Inventory of the Borrowers from a third-party appraiser reasonably satisfactory to the Administrative Agent for which the results of such appraisal are in form and substance reasonably satisfactory to the Administrative Agent (it being understood and agreed that the appraisal, dated April 23, 2015, constitutes an Acceptable Appraisal), (b) in respect of Equipment, an appraisal of the Equipment of the U.S. Borrowers from a third-party appraiser reasonably satisfactory to the Administrative Agent for which the results of such appraisal are in form and substance reasonably satisfactory to the Administrative Agent (it being understood and agreed that the appraisal, dated April 22, 2015, constitutes an Acceptable Appraisal) and (c) in respect of Real Property, a Real Property Appraisal.
“Acceptable Existing Appraisal” shall mean, in respect of any Equipment and as of any date, an Acceptable Appraisal in respect of substantially identical Equipment, which Acceptable Appraisal (i) has been obtained within the prior six months and (ii) has assigned a specific value to such substantially identical Equipment.
“Acceptable Field Examination” shall mean a collateral examination of the Inventory and the Accounts of the Borrowers, in scope, and from a third-party consultant reasonably satisfactory to the Administrative Agent for which the results of such collateral examination are in form and substance reasonably satisfactory to the Administrative Agent.
“Acceptable Foreign Currency” shall mean any Foreign Currency (other than Euros) (a) for which the LIBO Rate can be determined by reference to the applicable Reuters screen as provided in the definition of “LIBO Rate” and (b) that has been designated by the Administrative Agent as an Acceptable Foreign Currency at the request of the Company and with the consent of (i) the Administrative Agent, (ii) each Lender and (iii) with respect to any Letter of Credit to be denominated in such Acceptable Foreign Currency, the applicable Issuing Lender in respect of such Letter of Credit; for purposes of this clause (iii), Canadian Dollars and Sterling are Acceptable Foreign Currency.
“Acceptable Jurisdiction” shall mean, as of the Effective Date, the countries listed on Schedule 1.01(d) to the Disclosure Letter; provided that the Administrative Agent may, in its Permitted Discretion, add or remove countries as Acceptable Jurisdictions by written notice to the Company.
“Account” shall mean an “account” as such term is defined in Article 9 of the UCC, and any and all supporting obligations in respect thereof.
“Account Debtor” shall mean each Person who is obligated on an Account.
“Acquisition” shall mean the acquisition of either (x) all or substantially all of the assets of, or the assets constituting a business, division or product line of, any Person not already a Subsidiary of the Company or (y) 100% of the Equity Interests of any such Person (or at least a majority of such Equity Interests if such acquisition is expected to be promptly followed by the acquisition of the remaining Equity Interests), which Person shall, as a result of the acquisition of such Equity Interests, become a Wholly-Owned Subsidiary of the Company (or shall be merged with and into a Borrower or a Wholly-Owned Subsidiary of the Company).
“Additional Appraisal/Exam Period” shall mean any time that Excess Availability is less than 15% of the Total Revolving Loan Commitment; provided that (solely for purposes of determining
3
whether an Additional Appraisal/Exam Period is in effect) at any time that the Total Borrowing Base is in excess of the Total Revolving Loan Commitment, Excess Availability shall be deemed to be increased in an amount (not to exceed 5% of the Total Revolving Loan Commitment) equal to such excess.
“Additional Convertible Notes” shall mean unsecured convertible senior securities of the Company issued pursuant to, and containing the requirements of, clause (y) of Section 10.04(l) or Section 10.04(n), which unsecured convertible senior securities are convertible into Equity Interests, cash or a combination of cash and Equity Interests.
“Additional Convertible Notes Documents” shall mean any Additional Convertible Notes and any Additional Convertible Notes Indenture.
“Additional Convertible Notes Indenture” shall mean each indenture (or similar document) pursuant to which any Additional Convertible Notes are issued.
“Additional Security Documents” shall have the meaning provided in Section 9.12(e).
“Administrative Agent” shall mean DBNY, in its capacity as Administrative Agent for the Lenders hereunder and under the other Credit Documents, and shall include any successor to the Administrative Agent appointed pursuant to Section 12.09.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling (including, but not limited to, all directors and officers of such Person), controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided, however, that none of the Administrative Agent, any Lender or any of their respective Affiliates shall be considered an Affiliate of the Company or any Subsidiary thereof.
“Agent Advance” shall have the meaning provided in Section 2.01(e).
“Agent Advance Period” shall have the meaning provided in Section 2.01(e).
“Agents” shall mean and include the Administrative Agent, the Collateral Agent, the Syndication Agents and the Co-Documentation Agents.
“Aggregate Dutch Borrower Exposure” shall mean, at any time, the sum of (a) the aggregate principal amount of all Dutch Borrower Revolving Loans outstanding at such time (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency), (b) the aggregate amount of all Letter of Credit Outstandings (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency) at such time in respect of Letters of Credit issued for the account of any Dutch Borrower (exclusive of such Letter of Credit Outstandings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Dutch Borrower Revolving Loans or Dutch Borrower Swingline Loans) and (c) the aggregate principal amount of all Dutch Borrower Swingline Loans outstanding at such time (exclusive of Dutch Borrower Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Dutch Borrower Revolving Loans).
4
“Aggregate Exposure” shall mean, at any time, the sum of (a) the Aggregate U.S. Borrower Exposure at such time and, (b) the Aggregate Dutch Borrower Exposure at such time and (c) the Aggregate UK Borrower Exposure at such time.
“Aggregate UK Borrower Exposure” shall mean, at any time, the sum of (a) the aggregate principal amount of all UK Borrower Revolving Loans outstanding at such time (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency) and (b) the aggregate amount of all Letter of Credit Outstandings (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency) at such time in respect of Letters of Credit issued for the account of any UK Borrower (exclusive of such Letter of Credit Outstandings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of UK Borrower Revolving Loans).
“Aggregate U.S. Borrower Exposure” shall mean, at any time, the sum of (a) the aggregate principal amount of all U.S. Borrower Revolving Loans outstanding at such time (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency), (b) the aggregate amount of all Letter of Credit Outstandings (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency) at such time in respect of Letters of Credit issued for the account of any U.S. Borrower (exclusive of such Letter of Credit Outstandings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of U.S. Borrower Revolving Loans or U.S. Borrower Swingline Loans) and (c) the aggregate principal amount of all U.S. Borrower Swingline Loans outstanding at such time (exclusive of U.S. Borrower Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of U.S. Borrower Revolving Loans).
“Agreement” shall mean this credit agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended or renewed from time to time.
“Amendment and Restatement Agreement” shall mean the Amendment and Restatement Agreement to the Credit Agreement, dated as of the Amendment and Restatement Effective Date, among the Company, Tesla B.V., the lenders party thereto, the Collateral Agent and the Administrative Agent.
“Amendment and Restatement Effective Date” shall mean March 6, 2019.
“Amortized Value” shall mean, as of any date of determination and with respect to any Eligible Machinery and Equipment, the value of such Eligible Machinery and Equipment determined by reference to the most recent Acceptable Appraisal of such Eligible Machinery and Equipment and assuming monthly straight-line amortization of the value thereof from the date (the “Amortization Commencement Date”) that is one year after the date of such Acceptable Appraisal through the date that is the seven-year anniversary of the Amortization Commencement Date.
“Anti-Corruption Laws” shall mean all laws, rules and regulations of any jurisdiction applicable to the Company or its Subsidiaries from time to time concerning or relating to bribery or corruption, including, but not limited to, the Foreign Corrupt Practices Act of 1977 and the United Kingdom Xxxxxxx Xxx 0000, each as amended, and the rules and regulations thereunder.
“Applicable Margin” shall mean a percentage per annum equal to (i) in the case of Revolving Loans maintained as (A) Base Rate Loans, 0%, and (B) LIBOR Loans, 1.00%, and (ii) in the case of Swingline Loans, 0%.
5
“Applicable Value” shall mean, as of any date of determination and with respect to any Eligible Machinery and Equipment, (a) if the Administrative Agent has received an Acceptable Appraisal in respect of such Eligible Machinery and Equipment dated as of a date no more than 12 months prior to such date of determination, the Net Orderly Liquidation Value of such Eligible Machinery and Equipment and (b) otherwise, the Amortized Value of such Eligible Machinery and Equipment.
“Appraised Fair Market Value” shall mean, at any time, with respect to any Eligible Real Property, the fair market value of such Real Property, as determined pursuant to the most recent Real Property Appraisal of such Eligible Real Property.
“Arranger” shall mean each of Deutsche Bank Securities Inc., Bank of America, N.A., Barclays Bank PLC, Citibank, N.A., Xxxxxxx Xxxxx Bank USA and Xxxxxx Xxxxxxx Senior Funding Inc.
“Asset Sale” shall mean any sale, transfer or other disposition by the Company or any of its Subsidiaries to any Person (including by way of redemption by such Person and whether effected pursuant to a Division or otherwise) other than to a Credit Party of any asset (including any capital stock or other securities of, or Equity Interests in, another Person).
“Assignment and Assumption Agreement” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit L (appropriately completed) or such other form reasonably acceptable to the Administrative Agent and the Company.
“Attributes Buyer” shall mean that Person separately identified in writing by the Company to the Administrative Agent.
“Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing, Notices of Conversion/Continuation and similar notices, any person or persons that has or have been authorized by the board of directors (or equivalent governing body) of the applicable Borrower to deliver such notices pursuant to this Agreement and that has or have appropriate signature cards or certificates of incumbency on file with the Administrative Agent, the Swingline Lender or the respective Issuing Lender, (ii) delivering financial information and officer’s certificates pursuant to this Agreement, the chief financial officer; the vice president, finance; the treasurer or the principal accounting officer of the Company, and (iii) any other matter in connection with this Agreement or any other Credit Document, any officer (or a person or persons so designated by any two officers) of the applicable Credit Party.
“Available” shall mean, with respect to cash and Cash Equivalents, that either (i) such cash and Cash Equivalents are owned by the Company or any of its Domestic Subsidiaries or (ii) such cash and Cash Equivalents are owned by a Foreign Subsidiary and are able to be repatriated to the Company or one or more of its Domestic Subsidiaries; provided that with respect to this clause (ii), such cash and Cash Equivalents shall be calculated net of any costs (including taxes) that would be incurred in respect of such repatriation (as reasonably determined by the Company).
“Available Currency” shall mean U.S. Dollars, Euros and any Acceptable Foreign Currency.
“Available Currency Equivalent” shall mean, for any amount of any Available Currency (other than U.S. Dollars), at the time of determination thereof, (a) if such amount is expressed in such Available Currency, such amount and (b) if such amount is expressed in U.S. Dollars, the equivalent of such amount in such Available Currency determined by using the rate of exchange for the purchase of such Available Currency with U.S. Dollars last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Reuters source on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange
6
for the purchase of such Available Currency with U.S. Dollars, as provided by such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by the Administrative Agent in its sole discretion (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in U.S. Dollars as determined by the Administrative Agent using any method of determination it deems appropriate in its sole discretion).
“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (b)(v) of Section 2.10.
“Availability” at any time shall mean the lesser of (i) the Total Borrowing Base at such time and (ii) the Total Revolving Loan Commitment at such time.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.
“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” shall have the meaning provided in Section 11.05.
“Bankruptcy Event” shall mean, with respect to any Person, such Person becomes the subject of an Insolvency Proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Base Rate” shall mean, at any time, the highest of (i) the Prime Lending Rate at such time, (ii) ½ of 1% per annum in excess of the overnight Federal Funds Rate at such time, and (iii) the LIBO Rate for a LIBOR Loan denominated in U.S. Dollars with a one month Interest Period commencing on such day plus 1.00%. For purposes of this definition, the LIBO Rate shall be determined using the LIBO Rate as otherwise determined by the Administrative Agent in accordance with the definition of LIBO Rate, except that (x) if a given day is a Business Day, such determination shall be made on such day (rather than two Business Days prior to the commencement of an Interest Period) or (y) if a given day is not a Business Day, the LIBO Rate for such day shall be the rate determined by the Administrative Agent
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pursuant to preceding clause (x) for the most recent Business Day preceding such day. Any change in the Base Rate due to a change in the Prime Lending Rate, the Federal Funds Rate or such LIBO Rate shall be effective as of the opening of business on the day of such change in the Prime Lending Rate, the Federal Funds Rate or such LIBO Rate, respectively; provided, that if the Base Rate is less than zero, such rate shall be deemed to be zero for purposes hereof.
“Base Rate Loan” shall mean (i) each Swingline Loan and (ii) each U.S. Dollar Denominated Revolving Loan designated or deemed designated as a Base Rate Loan by the relevant Borrower of such U.S. Dollar Denominated Revolving Loan at the time of the incurrence thereof or conversion thereto.
“Basket-Related Permitted Indebtedness” shall mean any Indebtedness incurred by the Company and its Subsidiaries (which Indebtedness may be guaranteed pursuant to a SolarCity Guarantee) that is not Ratio-Related Permitted Indebtedness up to an aggregate outstanding principal amount of $3,000,000,000.
“Benchmark” shall mean, initially, the Relevant Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b)(i) or (ii) of Section 2.10.
“Benchmark Replacement” shall mean, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an currency other than U.S. Dollars, “Benchmark Replacement” shall mean the alternative set forth in (c) below:
(a) the sum of: (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;
(b) the sum of: (i) Daily Simple SOFR and (ii) the related Benchmark Replacement Adjustment;
(c) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the U.S. Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Available Currency at such time and (ii) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (a), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, solely with respect to a Loan denominated in U.S. Dollars, notwithstanding anything to the contrary in this Agreement or in any other Credit Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment, as set forth in clause (a) of this definition (subject to the first proviso above).
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If the Benchmark Replacement as determined pursuant to clause (a), (b) or (c) above would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Credit Documents.
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(a) for purposes of clauses (a) and (b) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(i) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;
(ii) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(b) for purposes of clause (c) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the U.S. Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Available Currency at such time;
provided that, in the case of clause (a) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent, in consultation with the Company, decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market
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practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).
“Benchmark Replacement Date” shall mean, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or
(c) in the case of a Term SOFR Transition Event, the date that is 30 days after the date a Term SOFR Notice is provided to the Lenders and the U.S. Borrower pursuant to Section 2.10(b)(ii); or
(d) in the case of an Early Opt-in Election, the sixth Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” shall mean, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such
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component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” shall mean, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.10 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.10.
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”
“BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Borrower” and “Borrowers” shall have the meaning provided in the first paragraph of this Agreement.
“Borrower Obligations” shall mean the Dutch Borrower Obligations and/or the UK Borrower Obligations and/or the U.S. Borrower Obligations, as applicable.
“Borrowing” shall mean the borrowing by a Borrower of one Type of Revolving Loan from all the Lenders, or from the Swingline Lender in the case of Swingline Loans, on a given date (or resulting from a conversion or conversions on such date) having in the case of LIBOR Loans the same Interest Period, provided that Base Rate Loans incurred pursuant to Section 2.10(bc) shall be considered part of the related Borrowing of LIBOR Loans.
“Borrowing Base” shall mean the Dutch Borrowing Base, the UK Borrowing Base, the U.S. Borrowing Base and/or the Total Borrowing Base, as applicable.
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“Borrowing Base Certificate” shall have the meaning provided in Section 9.01(h).
“Business” shall mean any corporation, limited liability company, partnership or other business entity (or the adjectival form thereof, where appropriate) or the equivalent of the foregoing in any foreign jurisdiction.
“Business Day” shall mean (i) for all purposes other than as covered by clauses (ii), (iii) and, (iv) and (v) below, any day except Saturday, Sunday and any day which shall be in New York, New York, a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close, (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, LIBOR Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between banks in U.S. dDollar deposits in the London interbank market, (iii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Euro Denominated Loans, any day which is a Business Day described in clause (i) above and is also a TARGET Day and, (iv) with respect to all notices and determinations in connection with, and payments of principal and interest on, Loans made to a Dutch Borrower or Letters of Credit issued to a Dutch Borrower, any day which is a Business Day described in clause (i) above and which is also a day which is not a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in Amsterdam, the Netherlands or London, England. and (v) with respect to all notices and determinations in connection with, and payments of principal and interest on, Loans made to a UK Borrower or Letters of Credit issued to a UK Borrower, any day which is a Business Day described in clause (i) above and which is also a day which is not a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in London, England.
“Calculation Period” shall mean, with respect to any event expressly required to be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended prior to the date of such event for which financial statements have been delivered to the Lenders pursuant to this Agreement.
“Capital Expenditures” shall mean, with respect to any Person, all cash expenditures by such Person which should be capitalized in accordance with GAAP.
“Capitalized Lease Obligations” shall mean, with respect to any Person, all rental obligations of such Person which, under GAAP, are or will be required to be capitalized on the books of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with such principles; provided that Capitalized Lease Obligations shall not include (i) any obligations in respect of leases that would be treated as operating leases in accordance with GAAP as in effect on the Tenth Amendment Effective Date and (ii) any obligations in respect of operating leases that are capitalized as a result of build-to-suit lease accounting rules.
“Cash Contribution” shall mean, as of any date, the sum of the Dutch Cash Contribution to the Dutch Borrowing Base and the U.S. Cash Contribution to the U.S. Borrowing Base.
“Cash Equivalents” shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than 24 months from the date of acquisition, (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 12 months from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Xxxxx’x, (iii) U.S. Dollar-denominated demand deposits or
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time deposits, certificates of deposit and bankers acceptances of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Xxxxx’x with maturities of not more than 12 months from the date of acquisition by such Person, (iv) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (iii) above, (v) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Xxxxx’x and in each case maturing not more than 12 months after the date of acquisition by such Person, (vi) investments in money market funds regulated under Rule 2a-7 of the Investment Company Act of 1940, (vii) securities of the types described in clause (ii) above having maturities of not more than 24 months from the date of acquisition thereof so long as such securities are fully guaranteed for both principal and interest by an irrevocable letter of credit issued by a commercial bank with a minimum credit rating of Aa3 from Xxxxx’x or AA- from Standard & Poor’s and at least $500,000,000 in consolidated total assets, (viii) in the case of any Foreign Subsidiary of the Company, substantially similar investments of the type described in clauses (i) though (vii) above denominated in foreign currencies and from similarly capitalized and rated foreign banks or other Persons in the jurisdiction in which such Foreign Subsidiary is organized, and (ix) any other investments permitted by the Company’s investment policy as such policy is in effect, and as disclosed to the Administrative Agent, prior to the First Amendment Effective Date, together with any amendments, restatements, supplements or other modifications thereto that the Administrative Agent shall have consented to for purposes of this definition (which consent will not be unreasonably withheld or delayed).
“Cash Flow Revolving Indebtedness” shall have the meaning provided in Section 10.04(q).
“Cash Flow Revolving Documents” shall mean, on and after the execution and delivery thereof, each loan agreement, credit agreement, guaranty, security agreement and other document relating to the incurrence or issuance of any Cash Flow Revolving Indebtedness, as the same may be amended, modified, restated, renewed, extended and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Cash Management Control Agreement” shall mean (i) (x) in respect of a Deposit Account located in the United States, a “control agreement” in form and substance reasonably acceptable to the Administrative Agent and containing terms regarding the treatment of all cash and other amounts on deposit in the respective Deposit Account governed by such Cash Management Control Agreement consistent with the requirements of Section 5.03 and (y) in respect of a Deposit Account located outside of the United States, an agreement in form and substance reasonably satisfactory to the Administrative Agent perfecting the Lien of the Administrative Agent in the amounts on deposit therein and containing terms regarding the treatment of all cash and other amounts on deposit in the respective Deposit Account governed by such Cash Management Control Agreement consistent with the requirements of Section 5.03 and (ii) (x) in respect of a securities account located in the United States, a “control agreement” in form and substance reasonably acceptable to the Administrative Agent and containing terms regarding the treatment of all securities and other amounts on deposit in the respective securities account governed by such Cash Management Control Agreement and (y) in respect of a securities account located outside of the United States, an agreement in form and substance reasonably satisfactory to the Administrative Agent perfecting the Lien of the Administrative Agent in the securities and other amounts on deposit therein.
“Cash Management Reserve” shall mean a reserve established by the Administrative Agent in connection with treasury, depositary or cash management services (including, overnight overdraft services) provided to the Company and its Subsidiaries, and automated clearinghouse transfers of funds,
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as adjusted from time to time by the Administrative Agent in its Permitted Discretion to reasonably reflect anticipated obligations under such services then provided or outstanding.
“Change of Control” shall mean (i) the Company shall at any time cease to own, directly or indirectly, 100% of the Equity Interests of each other Borrower, (ii) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted Holder, is or shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 35% or more of the Voting Stock of the Company or (iii) a “change of control” or similar event (which, in the case of Permitted Convertible Notes, shall include any “fundamental change”, “make-whole fundamental change” or other similar event risk provision) shall occur as provided in any Permitted Convertible Notes Document or any Permitted Additional Indebtedness Document and in connection with such “change of control” or similar event, the Company shall be obligated to repurchase or offer to repurchase all of the affected Permitted Convertible Notes or Permitted Additional Indebtedness.
“Charging Agreements” shall mean electric vehicle charging station related agreements, including lease and license agreements and all associated real property and other rights provided in the applicable agreement; agreements and other rights related to customer accounts, payments and data; equipment lease agreements entered into with a customer pursuant to which such customer agrees to lease a Charging System, and all rights related thereto; and agreements to provide vehicle charging related services such as equipment installation, equipment maintenance or customer billing services.
“Charging Assets” shall mean Charging Systems, Charging Agreements, Equity Interests in Excluded Charging Subsidiaries and Vehicle Environmental Attributes.
“Charging Systems” shall mean all parts of an electric vehicle charging station, including charge posts, charging connectors, power electronics equipment, switchgear, conduit, wiring, metering equipment, concrete pads, signage, fences or visual barriers, mobile charging stations, canopies, solar panels, energy storage systems and other related equipment.
“Charging Working Capital Facility” shall mean a credit facility providing working capital or warehouse financing for the acquisition or development of Charging Assets.
“Chattel Paper” shall mean “chattel paper” (as such term is defined in Article 9 of the UCC).
“Co-Documentation Agents” shall mean Société Générale and Xxxxx Fargo Bank, National Association, each in its capacity as a co-documentation agent for the Lenders hereunder and under the other Credit Documents.
“Code” shall mean the United States Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Unless otherwise provided herein, section references to the Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral” shall mean all property (whether real or personal) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document, including all Security Agreement Collateral, all Mortgaged Properties (if any) and all cash and Cash Equivalents delivered as collateral pursuant to Section 5.02 or 11; provided that in no event shall the term “Collateral” include any property, interest or other rights with respect to SolarCity or any of its Subsidiaries or any Equity Interests of SolarCity or any of its Subsidiaries.
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“Collateral Agent” shall mean DBNY in its capacity as collateral agent for the Secured Creditors pursuant to the Security Documents and shall include any successor to the Collateral Agent as provided in Section 12.09.
“Collateralized Letter of Credit” shall have the meaning provided in Section 3.02(b).
“Commingled Inventory” shall mean Inventory of any Borrower that is commingled (whether pursuant to a consignment, a toll manufacturing agreement or otherwise) with Inventory of another Person (other than a Borrower) at a location owned or leased by any Borrower to the extent that such Inventory of the applicable Borrower is not readily identifiable.
“Commitment Commission” shall have the meaning provided in Section 4.01(a).
“Commitment Commission Percentage” shall mean 0.25% per annum; provided that until the First Usage Date, the Commitment Commission Percentage shall be (i) 0% for the period from the Effective Date until the date 30 days thereafter, (ii) 0.125% per annum for the period from the date that is 30 days after the Effective Date until the date that is 60 days after the Effective Date and (iii) 0.25% thereafter. From and after any Extension with respect to any Extended Revolving Loan Commitments and Extended Loans, the Commitment Commission Percentage specified for such Extended Revolving Loan Commitments and Extended Loans shall be those set forth in the applicable definitive documentation thereof.
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company” shall have the meaning provided in the first paragraph of this Agreement.
“Company Common Stock” shall mean authorized shares of common stock of the Company.
“Company Factory” shall mean (i) the Fremont Factory, (ii) the Company’s manufacturing facility located in Lathrop, California, (iii) the Company’s manufacturing facility located at 0000 Xxxxxxxxx Xxxxxxx XX, Xxxxx Xxxxxx, Xxxxxxxx, (iv) the Company’s manufacturing facility located in Buffalo, New York, (v) the Company’s Gigafactory located at 0 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx and (vi) any other mManufacturing fFacilities established by the Company from time to time and located in the United States.
“Compliance Period” shall mean, subject to Section 3.02(b), any period commencing on the date on which (a)(i) Designated Cash is less than the Liquidity Threshold and (ii) Excess Availability is less than the greater of (x) 10% of Availability at such time or (y) $80,000,000 and (b) ending on the first date thereafter on which (i) Designated Cash is equal to or greater than the Liquidity Threshold or (ii) Excess Availability is greater than the greater of (x) 10% of Availability at such time and (y) $80,000,000 for 30 consecutive days.
“Consent Letter” shall mean that certain letter, dated as of April 28, 2017, between the Borrowers and the Required Lenders.
“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period (without giving effect to (w) any extraordinary gains or losses, (x) any non-cash income, (y) any gains or losses from sales of assets other than those assets sold in the ordinary course of business, or (z) any foreign currency gains or losses) adjusted by (A) adding thereto (in each case to the extent deducted in determining Consolidated Net Income for such period (other than clause (ix) below which need not be so
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deducted)), without duplication, the amount of (i) total interest expense (inclusive of amortization or write-off of deferred financing fees and other original issue discount and banking fees, charges and commissions (e.g., letter of credit issuance and facing fees (including Letter of Credit Fees and Facing Fees), commitment fees, issuance costs and other transactional costs)) of the Company and its Consolidated Subsidiaries determined on a consolidated basis for such period, (ii) provision for taxes based on income and foreign withholding taxes for the Company and its Consolidated Subsidiaries (including state, franchise, capital and similar taxes paid or accrued) determined on a consolidated basis for such period, (iii) all depreciation and amortization expense of the Company and its Consolidated Subsidiaries determined on a consolidated basis for such period, (iv) in the case of any period, the amount of all fees and expenses incurred in connection with the Transaction (including in connection with any amendments, restatements, modifications, waivers or consents to the Credit Documents) during such fiscal quarter, (v) any unusual or non-recurring cash charges, (vi) any cash restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, system establishment costs, excess pension charges, contract and lease termination costs and costs to consolidate facilities and relocate employees) for such period (a)(x) incurred in connection with an Acquisition consummated after the Effective Date or (y) otherwise incurred in connection with the Company’s and its Consolidated Subsidiaries’ operations in an aggregate amount for all cash charges added back pursuant to this clause (vi) not to exceed 15% of Consolidated EBITDA in any Test Period (calculated before giving effect to this clause (vi)), (vii) any expenses incurred in connection with any actual or proposed Investment, incurrence, amendment or repayment of Indebtedness, issuance of Equity Interests or acquisition or disposition, in each case, outside the ordinary course of business for such period, (viii) expenses incurred to the extent covered by indemnification provisions in any agreement in connection with an aAcquisition to the extent reimbursed in cash to the Company or any of its Consolidated Subsidiaries and such indemnification payments are not otherwise included in Consolidated Net Income, in each case, for such period, (ix) proceeds received by the Company or any of its Consolidated Subsidiaries from any business interruption insurance to the extent such proceeds are not otherwise included in such Consolidated Net Income for such period, (x) all other non-cash charges of the Company and its Consolidated Subsidiaries determined on a consolidated basis for such period, (xi) [RESERVED], and (xii) any expenses associated with stock based compensation and (B) subtracting therefrom (to the extent not otherwise deducted in determining Consolidated Net Income for such period) (i) the amount of all cash payments or cash charges made (or incurred) by the Company or any of its Consolidated Subsidiaries for such period on account of any non-cash charges added back to Consolidated EBITDA pursuant to preceding sub-clause (A)(x) in a previous period and (ii) any unusual or non-recurring cash gains. For the avoidance of doubt, it is understood and agreed that, to the extent any amounts are excluded from Consolidated Net Income by virtue of the proviso to the definition thereof contained herein, any add backs to Consolidated Net Income in determining Consolidated EBITDA as provided above shall be limited (or denied) in a fashion consistent with the proviso to the definition of Consolidated Net Income contained herein.
“Consolidated Interest Expense” shall mean, for any period, (i) the total consolidated cash interest expense of the Company and its Consolidated Subsidiaries (including all commissions, discounts and other commitment and banking fees and charges (e.g., fees with respect to Interest Rate Protection Agreements and Other Hedging Agreements, letter of credit issuance and facing fees (including Letter of Credit Fees and Facing Fees) and other transactional costs) for such period, adjusted to exclude (to the extent same would otherwise be included in the calculation above in this clause (i)) the amortization of any deferred financing costs for such period and any interest expense actually “paid in kind” or accreted during such period, plus (ii) without duplication, that portion of Capitalized Lease Obligations of the Company and its Consolidated Subsidiaries on a consolidated basis representing the interest factor for such period.
“Consolidated Net Income” shall mean, for any period, the net income (or loss) of the Company and its Consolidated Subsidiaries determined on a consolidated basis for such period (taken as a single
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accounting period) in accordance with GAAP (after any deduction for minority interests); provided that the following items shall be excluded in computing Consolidated Net Income (without duplication): (i) the net income (or loss) of any Person in which a Person or Persons other than the Company and its Wholly-Owned Subsidiaries has an Equity Interest or Equity Interests to the extent of such Equity Interests held by such Persons (provided that the net income (or loss) included in the Company’s financial statements as a result of variable interest entity accounting shall be excluded, except to the extent of dividends received by the Company or any of its Wholly-Owned Subsidiaries) and (ii) except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any Person accrued prior to the date it becomes a Consolidated Subsidiary or all or substantially all of the property or assets of such Person are acquired by a Consolidated Subsidiary.
“Consolidated Subsidiaries” shall mean, as of any date, all Subsidiaries of the Company and SolarCity and its Subsidiaries (determined without giving effect to the proviso in the definition of Subsidiary), in each case to the extent the accounts of such Person are consolidated with the accounts of the Company as of such date in accordance with the principles of consolidation reflected in the audited financial statements most recently delivered in accordance with Section 9.01(b).
“Consolidated Total Assets” shall mean, at any time of determination thereof, the aggregate amount of all assets of the Company and its Consolidated Subsidiaries as set forth in the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP.
“Consolidated Total Indebtedness” shall mean, at any time, the sum of (without duplication) (i) the principal amount (or accreted principal amount in the case of Indebtedness issued with original issue discount) of all Indebtedness of the Company and its Subsidiaries at such time of the type described in clauses (i), (ii),(iii), (iv) and (v) of the definition of Indebtedness and (ii) all Contingent Obligations of the Company and its Subsidiaries in respect of Indebtedness of any third Person of the type referred to in preceding clause; provided that the aggregate amount available to be drawn (i.e., unfunded amounts) under all letters of credit, bankers’ acceptances and bank guarantees issued for the account of the Company or any of its Subsidiaries (but excluding, for avoidance of doubt, all unpaid drawings or other matured monetary obligations owing in respect of such letters of credit, bankers’ acceptances and bank guarantees) shall not be included in any determination of “Consolidated Total Indebtedness”; provided further, that the aggregate amount of surety bonds, customs bonds and other similar bonds issued for the account of the Company or any of its Subsidiaries shall not be included in any determination of “Consolidated Total Indebtedness”.
“Contingent Obligation” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (solely for the purpose of this definition, “primary obligations”) of any other Person (solely for the purpose of this definition, the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of
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instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the lesser of (x) the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith and (y) the maximum amount for which the guaranteeing person may be liable pursuant to the terms of the instrument embodying such primary obligation.
“Controlled Securities Account” shall mean a securities account of a Credit Party subject to a Cash Management Control Agreement.
“Convertible Notes Maturity Default” shall mean the occurrence of any of the following events: (i) any of the Company’s 2021 Convertible Notes shall be outstanding on January 1, 2021 and the sum of Unrestricted and Available cash and Cash Equivalents of the Company and its Subsidiaries and Excess Availability as of such date is not in excess of the principal amount of 2021 Convertible Notes then outstanding plus $400,000,000 or (ii) any of the Company’s 2022 Convertible Notes are outstanding on January 15, 2022 and the sum of Unrestricted and Available cash and Cash Equivalents of the Company and its Subsidiaries and Excess Availability as of such date is not in excess of the principal amount of 2022 Convertible Notes then outstanding plus $400,000,000.
“Core Deposit Accounts” shall mean, collectively, the Core U.S. Deposit Accounts and, the Core Dutch Deposit Accounts and the Core UK Deposit Accounts.
“Core Dutch Deposit Account” shall have the meaning provided in Section 5.03(c).
“Core UK Deposit Account” shall have the meaning provided in Section 5.03(d).
“Core U.S. Deposit Account” shall have the meaning provided in Section 5.03(b).
“Corresponding Tenor” with respect to any Available Tenor shall mean, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Account” shall have the meaning provided in Section 5.03(fh).
“Covered Entity” shall mean any of the following:
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(i) |
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
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(ii) |
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
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(iii) |
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Covered Party” shall have the meaning provided in Section 13.26.
“Credit Documents” shall mean this Agreement, each Guaranty, each Security Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note, each
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Incremental Commitment Agreement, each Joinder Agreement, the Intercreditor Agreement and each other Security Document.
“Credit Event” shall mean the making of any Loan or the issuance, amendment, extension or renewal of any Letter of Credit (other than any amendment, extension or renewal that does not increase the maximum Stated Amount of such Letter of Credit).
“Credit Party” shall mean each U.S. Credit Party and, each Dutch Credit Party and each UK Credit Party.
“Customer Deposit Reserve” shall mean a reserve established by the Administrative Agent in connection with customer deposits in respect of motor vehicles that are in production (as recorded in final assembly work in process inventory), are Eligible Finished Goods Inventory or are Eligible In-Transit Inventory, as adjusted from time to time by the Administrative Agent in its Permitted Discretion.
“Customer Lease Agreement” shall mean a lease agreement entered into with a customer, pursuant to which such customer agrees to lease an Energy Storage System.
“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“DB Account” shall mean each DB Netherlands Account and each DB U.S. Account.
“DB Netherlands Account” shall have the meaning provided in Section 5.03(ef).
“DB UK Account” shall have the meaning provided in Section 5.03(g).
“DB U.S. Account” shall have the meaning provided in Section 5.03(de).
“DBNY” shall mean Deutsche Bank AG New York Branch, in its individual capacity, and any successor corporation by merger, consolidation or otherwise.
“Default” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.
“Default Right” shall have the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” shall mean any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund its portion of any Borrowing (including a Mandatory Borrowing), (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Lender Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Lender Party in writing (and such Lender Party has notified the Company or the Administrative Agent thereof in writing), or has made a public statement to the effect, that it does not intend or expect to comply with any of its
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funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent, an Issuing Lender or the Swingline Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the receipt by the Administrative Agent, the applicable Issuing Lender or the Swingline Lender, as applicable, of such certification in form and substance satisfactory to it and the Administrative Agent, (d) has, or has a direct or indirect parent company that has, become the subject of a Bankruptcy Event, or (e) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.
“Deposit Account” shall mean a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization.
“Designated Cash” shall mean, at any time, the U.S. Dollar Equivalent of the aggregate amount of U.S. Dollars and Cash Equivalents of the U.S. Borrowers and U.S. Guarantors that is (a) Unrestricted, (b) deposited in a Deposit Account or securities account located in the United States that is subject to a Cash Management Control Agreement in favor of the Administrative Agent, (c) subject to a First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors, (d) subject to no other Liens other than Permitted Cash Management Liens and (e) not Eligible U.S. Cash and Cash Equivalents.
“Dilution Percentage” shall mean the average of the rolling twelve month dilution percentages, calculated to the first decimal place, determined for the Company’s most recently completed twelve month period, which shall be measured at the end of the second month of each fiscal quarter of the Company most recently ended. The dilution percentage shall equal (a) in respect of the U.S. Borrowers, the proportion of (i) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos, and other dilutive items with respect to Accounts of the U.S. Borrowers for such twelve monthly period, divided by (ii) gross billings of the U.S. Borrowers for such twelve monthly period and (b) in respect of the Dutch Borrowers, the proportion of (i) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos, and other dilutive items with respect to Accounts of the Dutch Borrowers for such twelve monthly period, divided by (ii) gross xxxxxxxx of the Dutch Borrowers for such twelve monthly period.
“Dilution Reserve” shall mean a reserve against the applicable Borrowing Base in an amount equal to the percentage (calculated to the first decimal place) that the Dilution Percentage exceeds 5%.
“Disclosure Letter” shall mean the disclosure letter, dated as of the Effective Date, delivered by Company to the Administrative Agent for the benefit of the Lenders.
“Dividend” shall mean, with respect to any Person, that such Person has declared or paid a dividend or distribution or returned any equity capital to its stockholders, partners or members in their capacity as such or authorized or made any other distribution, payment or delivery of property (in each case other than common Equity Interests of such Person or Preferred Equity of such Person meeting the requirements of Qualified Preferred Stock) or cash to its stockholders, partners or members in their capacity as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its capital stock or any other Equity Interests outstanding on or after the Effective Date, or set aside any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the
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capital stock or any other Equity Interests of such Person outstanding on or after the Effective Date. Without limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person to any other Person (solely in such other Person’s capacity as an equity holder of such Person) with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing purposes. For the avoidance of doubt, no conversion or Net Share Settlement of Permitted Convertible Notes or the SolarCity Convertible Notes, nor the purchase, sale or performance of obligations under any Issuer Option shall constitute a Dividend.
“Dividing Person” shall have the meaning provided in the definition of Division.
“Division” shall mean the statutory division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement) pursuant to the applicable limited liability company statutes, which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State thereof or the District of Columbia (other than (i) any such Subsidiary where all or substantially all of its assets consist of Equity Interests of one or more Foreign Subsidiaries (for this purpose, determined without giving effect to this parenthetical) that are controlled foreign corporations as defined in Section 957 of the Code or intercompany obligations owed or treated as owed by one or more Foreign Subsidiaries that are controlled foreign corporations as defined in Section 957 of the Code and (ii) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary).
“Dominion Period” shall mean any period (a) commencing on the date on which (x) an Event of Default has occurred and is continuing or (y) Excess Availability is less than the greater of (i) 10% of Availability at such time and (ii) $80,000,000 for a period of five consecutive Business Days and (b) ending on the first date thereafter on which (1) no Event of Default exists and (2) in the case of a Dominion Period commencing as a result of clause (a)(y) above, Excess Availability has been equal to or greater than the greater of (i) 10% of Availability at such time and (ii) $80,000,000 for 30 consecutive days.
“Drawing” shall have the meaning provided in Section 3.05(b).
“DTTP Passport” shall have the meaning provided in Section 5.04(e)(iv).
“Dutch Borrower” and “Dutch Borrowers” shall have the meaning provided in the first paragraph of this Agreement.
“Dutch Borrower Loans” shall mean each Dutch Borrower Revolving Loan and each Dutch Borrower Swingline Loan.
“Dutch Borrower Obligations” shall mean all Obligations owing to the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender by any Dutch Borrower.
“Dutch Borrower Revolving Loan” shall have the meaning provided in Section 2.01(a).
“Dutch Borrower Revolving Note” shall have the meaning provided in Section 2.05(a).
“Dutch Borrower Swingline Loan” shall have the meaning provided in Section 2.01(b).
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“Dutch Borrower Swingline Note” shall have the meaning provided in Section 2.05(a).
“Dutch Borrowing Base” shall mean, as of any date of calculation, the amount calculated pursuant to the Borrowing Base Certificate most recently delivered to the Administrative Agent in accordance with Section 9.01(h) equal to, without duplication:
(i)100% of the U.S. Dollar Equivalent of Eligible Dutch Cash and Cash Equivalents (the “Dutch Cash Contribution”),
(ii)85% of Eligible Dutch Accounts,
(iii)85% of the then extant Net Orderly Liquidation Value of Eligible Dutch Vendor In-Transit Inventory,
(iv)85% of the then extant Net Orderly Liquidation Value of Eligible Dutch Raw Materials Inventory (other than Eligible Dutch Vendor In-Transit Inventory),
(v)85% of the then extant Net Orderly Liquidation Value of Eligible Dutch WIP Inventory,
(vi)85% of the then extant Net Orderly Liquidation Value of Eligible Dutch Service Parts Inventory;,
(vii)85% of the then extant Net Orderly Liquidation Value of Eligible Dutch Finished Goods Inventory, and
(viii)85% of the then extant Net Orderly Liquidation Value of Eligible Dutch In-Transit Inventory,; minus
(b)the sum (without duplication) of any Reserves (including the Dutch Priority Payables Reserve and without duplication of any Inventory Reserve) then established by the Administrative Agent with respect to the Dutch Borrowing Base;
provided, however, that (i) Eligible Dutch Inventory shall only be included in the Dutch Borrowing Base to the extent that the Administrative Agent shall have received an Acceptable Appraisal in respect of such Eligible Dutch Inventory and (ii) the Eligible Inventory included in the Borrowing Base pursuant to clauses (a)(iii) through (viii) above shall be calculated net of any applicable Inventory Reserves. The Administrative Agent shall have the right (but no obligation) to review such computations and if, in its Permitted Discretion, such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right to correct any such errors in such manner as it shall determine in its Permitted Discretion and the Administrative Agent will notify the Company promptly after making any such correction.
“Dutch Cash Contribution” shall have the meaning provided in the definition of Dutch Borrowing Base.
“Dutch Civil Code” shall mean the Dutch Civil Code (Burgerlijk Wetboek).
“Dutch Collection Banks” shall have the meaning provided in Section 5.03(c).
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“Dutch Corresponding Debt” shall mean the Obligations of a Dutch Credit Party under or in connection with the Credit Documents.
“Dutch Credit Parties” shall mean each Dutch Borrower and each Dutch Subsidiary Guarantor.
“Dutch General Security Agreement” shall mean the Dutch Security Agreement, dated as of the Effective Date, in the form of Exhibit I-3, as amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Dutch Guarantors” shall mean and include each Dutch Borrower (in its capacity as a guarantor under the Dutch Guaranty) and each Dutch Subsidiary Guarantor.
“Dutch Guaranty” shall mean the Dutch Guaranty, dated as of the Effective Date, in the form of Exhibit G-1, as amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Dutch Insolvency Law” shall mean any of Faillissementswet, Insolventieverordening (EC) 1346/2000 and Invorderingswet 1990, each as now and hereafter in effect, and any successors to such statutes and any proceeding under applicable corporate law seeking an arrangement or compromise of any debts of the corporation, or a stay of proceedings to enforce any claims of the corporation’s creditors against it.
“Dutch Inventory Security Agreement” shall mean the Security Agreement (Inventory), dated as of the Effective Date, in the form of Exhibit I-1, as amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Dutch Parallel Debt” shall have the meaning provided in Section 12.12(a).
“Dutch Priority Payables” shall mean, at any time, with respect to any Credit Party which has employees in the Netherlands or otherwise carries on business in the Netherlands or which leases, sells or otherwise owns goods in the Netherlands or has Accounts with Account Debtors located in the Netherlands, the aggregate amount of any liabilities of such Credit Party which are secured by a security interest, pledge, lien, charge, right or claim on any Collateral or the holder of which enjoys a right, in each case, pursuant to any applicable law, rule or regulation and which trust, security interest, pledge, lien, charge, right or claim ranks or is capable of ranking in priority to or pari passu with one or more of the Liens granted in the Security Documents.
“Dutch Priority Payables Reserve” shall mean, on any date of determination for the Dutch Borrowing Base, a reserve established from time to time by the Administrative Agent in its Permitted Discretion in such amount as the Administrative Agent may reasonably determine in respect of Dutch Priority Payables of the Dutch Credit Parties.
“Dutch Receivables Security Agreement” shall mean the Security Agreement (Receivables), dated as of the Effective Date, in the form of Exhibit I-2, as amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Dutch Retention of Title Reserve” shall mean, on any date of determination for the Dutch Borrowing Base, a reserve established from time to time by the Administrative Agent in its Permitted Discretion for amounts of any claims preferred by law which rank or are capable of ranking senior to the Obligations.
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“Dutch Security Agreements” shall mean the Dutch Inventory Security Agreement, the Dutch Receivables Security Agreement and the Dutch General Security Agreement.
“Dutch Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated, organized, or established in the Netherlands or any province or territory thereof.
“Dutch Subsidiary Guarantor” shall mean each Wholly-Owned Dutch Subsidiary of Tesla B.V. (other than any Dutch Borrower, any Securitization Subsidiary, any Excluded Energy Storage Subsidiary, any Excluded Charging Subsidiary, any Tesla Finance Subsidiary and any Immaterial Subsidiary), whether existing on the Effective Date or established, created or acquired after the Effective Date, in each case unless and until such time as the respective Wholly-Owned Dutch Subsidiary is released from all of its obligations under the Security Documents to which it is a party in accordance with the terms and provisions thereof.
“Early Opt-in Election” shall mean:
(a) in the case of Loans denominated in U.S. Dollars, the occurrence of:
(i)a notification by the Administrative Agent to (or the request by the U.S. Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(ii)the joint election by the Administrative Agent and the U.S. Borrower to trigger a fallback from LIBO Rate and the provision by the Administrative Agent of written notice of such election to the Lenders; and
(b) in the case of Loans denominated in any Available Currency (other than U.S. Dollars), the occurrence of:
(i) (x) a determination by the Administrative Agent or (y) a notification by the Required Lenders to the Administrative Agent (with a copy to the U.S. Borrower) that the Required Lenders have determined that syndicated credit facilities denominated in the applicable Available Currency being executed at such time, or that include language similar to that contained in Section 2.10 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Relevant Rate, and
(ii) (x) the election by the Administrative Agent or (y) the election by the Required Lenders, in either case, in consultation with the Company, to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the U.S. Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
“ECP” shall have the meaning set forth in the definition of Excluded Swap Obligation.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any
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entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” shall have the meaning provided in Section 13.1013.11. For avoidance of doubt, the Effective Date occurred on June 10, 2015.
“Eligible Accounts” shall mean each Account (other than Rental Accounts and Accounts in respect of the sale of solar panels or solar shingles) created by any of the Borrowers other than the UK Borrowers in the ordinary course of its business, that arises out of its sale of goods or its rendition of services or that is a Permitted Bank Financing Account, that complies in all material respects with each of the representations and warranties respecting Eligible Accounts made in the Credit Documents, that are reflected in the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 9.01(h) and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, however, that such criteria may only be revised or any new criteria for Eligible Accounts may only be established by the Administrative Agent in its Permitted Discretion based on either (i) an event, condition or other circumstance arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent the Administrative Agent has no written notice thereof from a Borrower prior to the date hereof, in either cause under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the value or collectability of the Accounts as determined by the Administrative Agent in its Permitted Discretion. In determining the amount to be included, Eligible Accounts shall be calculated net of unapplied cash, any and all returns, accrued rebates, discounts (which may, at the Administrative Agent’s option in its Permitted Discretion, be calculated on shortest terms), credits or allowances of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time. Eligible Accounts shall not include the following:
(a)Accounts which either (x) are more than 90 days past due or (y) are unpaid more than 120 days after the original invoice date; provided that a Permitted Bank Financing Account shall not be eligible if it is (i) more than 30 days past due or (ii) unpaid more than 45 days after the original invoice date; provided further that an Account in respect of sales of Environmental Attributes shall not be eligible if (x) such Account (or a portion thereof) is more than 90 days past due or (y) such Account (or a portion thereof) is unpaid more than 150 days after the original invoice date;
(b)Accounts owed by an Account Debtor where 50% or more of the total amount of all Accounts owed by that Account Debtor are deemed ineligible under clause (a)(x) above or clause (i) of the proviso to clause (a) above;
(c)Accounts with respect to which the Account Debtor is (i) an Affiliate of any Credit Party (other than any Affiliate set forth on Schedule 1.01(e) to the Disclosure Letter) or (ii) an employee or agent (other than bona fide resellers) of any Credit Party;
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(d)Accounts arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a xxxx and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional (although the portion (if any) of the Accounts in excess of the amount at any time and from time to time subject to a Reserve for returns in the ordinary course of business may be deemed Eligible Accounts);
(e)Accounts that are not payable in U.S. Dollars, provided that Eligible Accounts of any Dutch Borrower also may be payable in or Euros;
(f)Accounts with respect to which the Account Debtor is a Person other than a Governmental Authority unless: (i) the Account Debtor (A) is a natural person with a billing address in the United States or an Acceptable Jurisdiction, (B) maintains its Chief Executive Office in the United States or an Acceptable Jurisdiction, or (C) is organized under the laws of the United States or an Acceptable Jurisdiction or any state, province, territory or other subdivision thereof; (ii) the Account is supported by an irrevocable letter of credit satisfactory to the Administrative Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent, or (iii) such Account is subject to credit insurance payable to the Administrative Agent issued by an insurer and on terms and in an amount (net of any applicable deductibles) deemed acceptable to the Administrative Agent in its Permitted Discretion; provided that this clause (f) shall not exclude any Accounts (other than Permitted Bank Financing Accounts) of a Permitted Foreign Account Debtor that would otherwise constitute Eligible Accounts;
(g)Accounts with respect to which the Account Debtor is the government of any country or sovereign state other than the United States, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless the Account is supported by an irrevocable letter of credit satisfactory to the Administrative Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent;
(h)Accounts with respect to which the Account Debtor is the federal government of the United States or any department, agency or instrumentality of the United States (exclusive of Accounts with respect to which the applicable Borrower has complied, to the reasonable satisfaction of the Administrative Agent, with the Assignment of Claims Act of 1940 (31 USC Section 3727));
(i)Accounts with respect to which the Account Debtor is any state government of the United States or any department, agency, municipality or political subdivision thereof (exclusive, however, of Accounts with respect to which the applicable Borrower has complied, to the reasonable satisfaction of the Administrative Agent, with the state law (if any) that is the substantial equivalent of the Assignment of Claims Act of 1940 (31 USC Section 3727)), unless the Account is supported by an irrevocable letter of credit satisfactory to the Administrative Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent;
(j)(i) Accounts with respect to which the Account Debtor is a creditor of any Credit Party or any Subsidiary of a Credit Party and such Account Debtor has asserted in writing a right
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of setoff, or has disputed its obligation to pay all or any portion of the Account, to the extent of such claim, right of setoff, or dispute, (ii) Accounts which are subject to a rebate that has been earned but not taken or a chargeback, to the extent of such rebate or chargeback, (iii) that portion of Accounts that constitute service charges, late fees or finance charges and (iv) Accounts less than 120 days past the original invoice date related to invoices that have been partially paid unless the Company reasonably believes in good faith that such Accounts will be fully paid and such Accounts are not otherwise excluded from being Eligible Accounts;
(k)Accounts with respect to an Account Debtor (other than any Account Debtor that has an Investment Grade Rating) whose total obligations owing to the Borrowers exceed 2025% (such percentage, as applied to a particular Account Debtor, being subject to reduction or increase by the Administrative Agent, in each case in its Permitted Discretion, if the creditworthiness of such Account Debtor deteriorates or is otherwise unacceptable to the Administrative Agent) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, however, that, in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit; provided that the foregoing percentage shall be (x) in respect of any Specified Account Debtor, the foregoing percentage shall be the percentage set forth on Schedule 1.01(c) to the Disclosure Letter with respect to such Specified Account Debtor (as such Schedule may be updated from time to time in the Permitted Discretion of the Administrative Agent with written notice to the Company) and, (y) in respect of any Account Debtor that has an Investment Grade Rating, the foregoing percentage shall be 50% (with such percentage being subject to reduction by the Administrative Agent in its Permitted Discretion) and (z) in respect of any Account Debtor that has a rating equal to or between Ba3 to Ba1 (or the equivalent) by Xxxxx’x and BB- to BB+ (or the equivalent) by S&P (or the equivalent rating by any other securities rating organization nationally recognized in the United States), the foregoing percentage shall be 40% (with such percentage being subject to reduction by the Administrative Agent in its Permitted Discretion as set forth in the immediately preceding parenthetical).;
(l)Accounts (w) with respect to which (i) an Insolvency Proceeding has been commenced by or against the Account Debtor (or, to the knowledge of a Responsible Officer of any Borrower, a controlling Affiliate thereof) or (ii) the Account Debtor (or, to the knowledge of a Responsible Officer of any Borrower, such controlling Affiliate) has failed, has suspended or ceased doing business, or, to the knowledge of a Responsible Officer of any Borrower, is liquidating, dissolving or winding up its affairs or (iii) the applicable Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process, (x) the collection of which the Administrative Agent, in its Permitted Discretion, believes to be doubtful by reason of the Account Debtor’s financial condition, upon notice thereof to the Company, or (y) which have been placed with a collection agency;
(m)Accounts that are not subject to a valid and perfected First Priority Lien in favor of the Collateral Agent pursuant to a Security Document;
(n)Accounts with respect to which the services giving rise to such Account have not been performed, invoiced and/or billed to the Account Debtor; provided that the foregoing shall not exclude any Account in respect of the sale of a motor vehicle solely because a de minimis portion of such Account relates to future services to be provided in respect of such motor vehicle;
(o)Accounts that represent the right to receive progress payments or other advance xxxxxxxx that are due prior to the completion of performance by the applicable Borrower of the
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subject contract for goods or services; provided that the foregoing shall not exclude any Account in respect of the sale of a motor vehicle solely because a de minimis portion of such Account relates to future services to be provided in respect of such motor vehicle;
(p)Accounts with respect to which any return, rejection or repression of any of the merchandise giving rise to such Account has occurred;
(q)Accounts with respect to which the sale to the respective Account Debtor is “cash on delivery”;
(r)Accounts that are evidenced by Chattel Paper or an instrument of any kind or have been reduced to a judgment;
(s)Accounts with respect to which the applicable Borrower has made any agreement with any Account Debtor for any deduction therefrom (but only to the extent of such deductions from time to time), except for discounts or allowances made in the ordinary course of business for prompt payment and except for volume discounts, all of which discounts or allowances are reflected in the calculation of the face value of each respective invoice related thereto and except for returns, rebates or credits reflected in the calculation of the face value of each such amount;
(t)Accounts that are not payable to a U.S. Borrower or a Dutch Borrower, as applicable;
(u)Accounts to the extent representing unapplied cash balances; or
(v)Accounts that are otherwise unacceptable to the Administrative Agent in its Permitted Discretion.
The Administrative Agent shall have the right to establish, modify or eliminate Reserves against Eligible Accounts (including for estimates, chargeback or other accrued liabilities or offsets to adjust for material claims, offsets, defenses or counterclaims or other material disputes with an Account Debtor) from time to time in its Permitted Discretion; provided that with respect to facts or events known to the Administrative Agent prior to the Effective Date, the Administrative Agent may impose new Reserves only to reflect a change in circumstances, events, conditions, contingencies or risks in respect of such facts or events.
“Eligible Cash and Cash Equivalents” shall mean currency consisting of U.S. Dollars or Euros or Sterling, or any other Cash Equivalents, in each case that is (a) Unrestricted, (b) deposited in a Deposit Account or securities account that is subject to a Cash Management Control Agreement in favor of the Administrative Agent, (c) subject to a First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors and (d) subject to no other Liens other than Permitted Cash Management Liens.
“Eligible Dutch Accounts” shall mean the Eligible Accounts owned by any Dutch Borrower.
“Eligible Dutch Cash and Cash Equivalents” shall mean the Eligible Cash and Cash Equivalents owned by any Dutch Borrower that is reflected in the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 9.01(h).
“Eligible Dutch Finished Goods Inventory” shall mean the Eligible Finished Goods Inventory owned by any Dutch Borrower.
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“Eligible Dutch In-Transit Inventory” shall mean the Eligible In-Transit Inventory owned by any Dutch Borrower.
“Eligible Dutch Inventory” shall mean Eligible Dutch Finished Goods Inventory, Eligible Dutch In-Transit Inventory, Eligible Dutch Raw Materials Inventory and Eligible Dutch WIP Inventory.
“Eligible Dutch Raw Materials Inventory” shall mean the Eligible Raw Materials Inventory owned by any Dutch Borrower.
“Eligible Dutch Service Parts Inventory” shall mean the Eligible Service Parts Inventory owned by any Dutch Borrower.
“Eligible Dutch Vendor In-Transit Inventory” shall mean the Eligible Vendor In-Transit Inventory owned by any Dutch Borrower.
“Eligible Dutch WIP Inventory” shall mean the Eligible WIP Inventory owned by any Dutch Borrower.
“Eligible Finished Goods Inventory” shall mean Eligible Inventory consisting of finished goods available for sale (as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion and consistent with past practices).
“Eligible In-Transit Inventory” shall mean all Eligible Inventory (other than Eligible Raw Materials Inventory):
(a)for which title remains with the applicable Borrower,
(b)which is fully insured in such amounts, with insurance companies and subject to such deductibles as are reasonably satisfactory to the Administrative Agent in its Permitted Discretion,
(c)which is (i) with respect to Inventory owned by a U.S. Borrower, in-transit in the United States and, (ii) with respect to Inventory owned by a Dutch Borrower, in-transit in the United States, in the Netherlands, in Belgium or from the United States to the Netherlands or Belgium; provided that any Inventory in Belgium or in-transit to Belgium shall only be Eligible Inventory if such Inventory is subject to a Perfected Belgian Lien and, and (iii) with respect to Inventory owned by a UK Borrower, in-transit in the United States, in-transit in England and Wales or from the United States, the Netherlands or Belgium to England and Wales; provided that (x) any Inventory in Belgium or in-transit to Belgium shall only be Eligible Inventory if such Inventory is subject to a Perfected Belgian Lien, (y) any Inventory in the United States or in-transit from the United States shall only be Eligible Inventory if such Inventory is subject to a Perfected U.S. Lien and (z) any Inventory in-transit from the Netherlands shall only be Eligible Inventory if such Inventory is subject to a Perfected Dutch Lien, and
(d)which otherwise would constitute Eligible Inventory.
“Eligible Inventory” shall mean all of the Inventory owned by any of the Borrowers (and for which the applicable Borrower has good title to such Inventory) that is reflected in the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 9.01(h), except any Inventory as to which any of the exclusionary criteria set forth below applies. Eligible Inventory shall not include any Inventory of a Borrower that:
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(a)is excess, obsolete, unsalable, shopworn, Used, seconds, damaged, unfit for sale or constitutes Material Review Board Inventory;
(b)is not subject to a First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors;
(c)is not owned by a Borrower free and clear of all Liens and rights of any other Person (including the rights of a purchaser that has made progress payments and the rights of a surety that has issued a bond to assure the applicable Borrower’s performance with respect to that Inventory), except the First Priority Lien in favor of the Collateral Agent, on behalf of the Secured Creditors, the junior Permitted Liens under Section 10.01(s) and First Priority Priming Liens (subject to Reserves established by the Administrative Agent in accordance with the provisions of this Agreement and in respect of such Permitted Liens);
(d)(i) is not located on premises owned, leased or rented by a Borrower, and in the case of leased or rented premises unless either (x) a reasonably satisfactory Landlord Personal Property Collateral Access Agreement has been delivered to the Administrative Agent or (y) Rent Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto or (ii) is stored with a bailee or warehouseman, unless either (x) a reasonably satisfactory and acknowledged bailee or warehouseman letter has been received by the Administrative Agent or (y) Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto, or (iii) is located at an owned location subject to a mortgage or other security interest in favor of a creditor other than the Collateral Agent or the junior Permitted Liens under Section 10.01(s) unless either (x) a Landlord Personal Property Collateral Access Agreement has been delivered to the Administrative Agent or (y) Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto; provided that the foregoing shall not exclude any Inventory of a Borrower that would otherwise constitute Eligible In-Transit Inventory or Eligible Vendor In-Transit Inventory;
(e)is placed on consignment unless Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto;
(f)is in transit; provided that the foregoing shall not exclude any Inventory of a Borrower that would otherwise constitute Eligible In-Transit Inventory or Eligible Vendor In-Transit Inventory;
(g)is covered by a negotiable document of title, unless, at the Administrative Agent’s request, such document has been delivered to the Collateral Agent or an agent thereof and such Borrower takes such other actions as the Administrative Agent reasonably requests in order to create a perfected First Priority security interest in favor of the Collateral Agent in such Inventory with all necessary endorsements, free and clear of all Liens except those in favor of the Collateral Agent on behalf of the Secured Creditors, the junior Permitted Liens under Section 10.01(s) and First Priority Priming Liens (subject to Reserves established by the Administrative Agent in accordance with the provisions of this Agreement and in respect of such Permitted Liens and the amount of any shipping fees, costs and expenses shall be reflected in Reserves); provided that the foregoing shall not exclude any Inventory of a Borrower that would otherwise constitute Eligible In-Transit Inventory or Eligible Vendor In-Transit Inventory;
(h)consists of goods that constitute spare parts (not intended for sale or consumer use), packaging and shipping materials, Merchandise, or supplies used or consumed in a U.S. Borrower’s business;
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(i)consists of any gross profit xxxx-up in connection with the sale and distribution thereof to any division of any Borrower or Subsidiary thereof;
(j)is manufactured, assembled or otherwise produced in violation of the Fair Labor Standards Act and subject to the “hot goods” provisions contained in Title 25 U.S.C. 215(a)(i);
(k)is not covered by casualty insurance required by the terms of this Agreement;
(l)consists of goods which have been returned or rejected by the buyer and are not in salable condition;
(m)breaches in any material respect any of the representations or warranties pertaining to such Inventory set forth in any Credit Document;
(n)does not conform in all material respects to all standards imposed by any governmental agency, division or department thereof which has regulatory authority over such goods or the use or sale thereof;
(o)is Commingled Inventory;
(p)(i) with respect to any Inventory owned by a U.S. Borrower, is located outside of the United States and, (ii) with respect to Inventory owned by a Dutch Borrower, is located outside of the United States, the Netherlands or Belgium; provided that the foregoing shall not exclude (x) any Inventory of a Dutch Borrower that is in transit from the United States to the Netherlands or Belgium that would otherwise constitute Eligible In-Transit Inventory and (y) any Inventory of a Borrower that is in transit to any Company Factory that would otherwise constitute Eligible Vendor In-Transit Inventory; provided further that any Inventory of a Dutch Borrower located in Belgium shall only be Eligible Inventory if it is subject to a Perfected Belgian Lien, and (iii) with respect to Inventory owned by a UK Borrower, is located outside of England and Wales, the United States, the Netherlands or Belgium; provided that the foregoing shall not exclude (x) any Inventory of a UK Borrower that is in transit from the United States, the Netherlands or Belgium to England and Wales that would otherwise constitute Eligible In-Transit Inventory and (y) any Inventory of a Borrower that is in transit to any Company Factory that would otherwise constitute Eligible Vendor In-Transit Inventory; provided further that any Inventory of a UK Borrower located in the United States, the Netherlands or Belgium shall only be Eligible Inventory if it is subject to a Perfected U.S. Lien, Perfected Dutch Lien or Perfected Belgian Lien, respectively;
(q)is out for delivery to the purchaser thereof or has been delivered to a common carrier for delivery to the purchaser thereof;
(r)is subject to a license agreement or other arrangement with a third party which, in the Administrative Agent’s Permitted Discretion, restricts the ability of the Administrative Agent or the Collateral Agent to exercise its rights under the Credit Documents with respect to such Inventory unless such third party has entered into an agreement in form and substance reasonably satisfactory to the Administrative Agent permitting the Administrative Agent or the Collateral Agent to exercise its rights with respect to such Inventory or the Administrative Agent has otherwise agreed to allow such Inventory to be eligible in the Administrative Agent’s Permitted Discretion;
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(s)consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available;
(t)consists of goods for which a certificate of title has been issued;
(u)is repriced down or the market value of which is lower than the cost thereof (to the extent of the amount of such write-down or reduction in market value);
(v)is Inventory consisting of solar panels or solar shingles;
(w)is Inventory in respect of which there is a related Eligible Account; or
(x)consists of Specified Tesla In-Transit Assets that were provided as collateral for Indebtedness incurred pursuant to Section 10.04(v);or
(xy)is otherwise unacceptable to the Administrative Agent in its Permitted Discretion.
The Administrative Agent shall have the right to establish, modify or eliminate Reserves against Eligible Inventory from time to time in its Permitted Discretion; provided that with respect to Reserves established on the Effective Date and facts or events known to the Administrative Agent prior to the Effective Date, the Administrative Agent may impose new Reserves only to reflect a change in circumstances, events, conditions, contingencies or risks in respect of such facts or events. The criteria for Eligible Inventory may only be revised or any new criteria for Eligible Inventory may only be established by the Administrative Agent in its Permitted Discretion based on either (i) an event, condition or other circumstance arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent the Administrative Agent has no notice thereof from a Borrower prior to the date hereof, in either cause under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Inventory as determined by the Administrative Agent in its Permitted Discretion.
“Eligible Machinery and Equipment” shall mean all of the Equipment owned by any of the U.S. Borrowers (and for which the applicable Borrower has good title to such Equipment) that is reflected in the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 9.01(h), except any Equipment as to which any of the exclusionary criteria set forth below applies. Eligible Machinery and Equipment shall not include any Equipment of the U.S. Borrowers that:
(a)is excess, obsolete, unsalable, shopworn, seconds, damaged or unfit for sale;
(b)is not subject to a First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors;
(c)is not owned by a U.S. Borrower free and clear of all Liens and rights of any other Person, except the First Priority Lien in favor of the Collateral Agent, on behalf of the Secured Creditors, the junior Permitted Liens under Section 10.01(s) and First Priority Priming Liens (subject to Reserves established by the Administrative Agent in accordance with the provisions of this Agreement and in respect of such Permitted Liens);
(d)(i) is not located on premises owned, leased or rented by a U.S. Borrower, and in the case of leased or rented premises unless either (x) a reasonably satisfactory Landlord Personal Property Collateral Access Agreement has been delivered to the Administrative Agent or (y) Rent
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Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto or (ii) is stored with a bailee or warehouseman, unless either (x) a reasonably satisfactory and acknowledged bailee or warehouseman letter has been received by the Administrative Agent or (y) Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto, or (iii) is located at an owned location subject to a mortgage or other security interest in favor of a creditor other than the Collateral Agent or the junior Permitted Liens under Section 10.01(s) unless either (x) a Landlord Personal Property Collateral Access Agreement has been delivered to the Administrative Agent or (y) Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto;
(e)is in transit;
(f)is not covered by casualty insurance required by the terms of this Agreement;
(g)breaches in any material respect any of the representations or warranties pertaining to such Equipment set forth in any Credit Document;
(h)is subject to a license agreement or other arrangement with a third party which, in the Administrative Agent’s Permitted Discretion, restricts the ability of the Administrative Agent or the Collateral Agent to exercise its rights under the Credit Documents with respect to such Equipment unless such third party has entered into an agreement in form and substance reasonably satisfactory to the Administrative Agent permitting the Administrative Agent or the Collateral Agent to exercise its rights with respect to such Equipment or the Administrative Agent has otherwise agreed to allow such Equipment to be eligible in the Administrative Agent’s Permitted Discretion;
(i)is located outside of the United States; or
(j)is otherwise unacceptable to the Administrative Agent in its Permitted Discretion.
The Administrative Agent shall have the right to establish, modify or eliminate Reserves against Eligible Machinery and Equipment from time to time in its Permitted Discretion; provided that with respect to facts or events known to the Administrative Agent prior to the Effective Date, the Administrative Agent may impose new Reserves only to reflect a change in circumstances, events, conditions, contingencies or risks in respect of such facts or events. The criteria for Eligible Machinery and Equipment may only be revised or any new criteria for Eligible Machinery and Equipment may only be established by the Administrative Agent in its Permitted Discretion based on either (i) an event, condition or other circumstance arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent the Administrative Agent has no notice thereof from a Borrower prior to the date hereof, in either cause under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Equipment as determined by the Administrative Agent in its Permitted Discretion.
“Eligible Raw Materials Inventory” shall mean all Eligible Inventory consisting of raw materials (as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion and consistent with past practices).
“Eligible Real Property” shall mean the Fremont Real Property; provided such Real Property meets each of the following criteria:
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(a)such Real Property is acceptable in the reasonable discretion of the Administrative Agent for inclusion in the U.S. Borrowing Base (and the Administrative Agent acknowledges that the Fremont Real Property is acceptable);
(b)such Real Property is wholly owned in fee simple by a U.S. Borrower free and clear of all Liens and rights of any other Person, except the First Priority Lien in favor of the Collateral Agent, on behalf of the Secured Creditors, the junior Permitted Liens under Section 10.01(s) and First Priority Priming Liens (subject to Reserves established by the Administrative Agent in accordance with the provisions of this Agreement and in respect of such Permitted Liens);
(c)such Real Property is covered by all insurance required by Section 9.03 hereof; and
(d)the Administrative Agent has received the following (collectively, the “Eligible Real Property Deliverables”):
(i)a Mortgage encumbering such Real Property creating a First Priority Lien in favor of the Collateral Agent, for the benefit of the Secured Creditors, duly executed and acknowledged by each Credit Party that is the owner or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a Lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage Lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to Collateral Agent;
(ii)a lender’s policy of title insurance (or marked up unconditional title insurance commitment having the effect of a policy of title insurance) issued by a nationally recognized and financially stable title insurance company reasonably acceptable to the Administrative Agent (the “Title Company”) insuring the Lien of such Mortgage as a valid First Priority Lien on the Mortgaged Property and fixtures described therein in an amount not less than the Appraised Fair Market Value of such Mortgaged Property and fixtures, which policy (or such marked up unconditional title insurance commitment) shall (x) to the extent necessary or commercially reasonable, include such co-insurance or reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (y) have been supplemented by such endorsements as shall be reasonably requested by the Collateral Agent (including, to the extent available in the local jurisdiction on commercially reasonable to terms and applicable to such Eligible Real Property, endorsements on matters relating to usury, first loss, revolving credit, zoning, contiguity, future advance, doing business, public road access (direct or indirect), same-as-survey, policy authentication, variable rate, environmental lien, subdivision, policy aggregation, mortgage recording tax, street address, separate tax lot, and so-called comprehensive coverage over covenants and restrictions), and (z) contain no exceptions to title other than Permitted Liens and Permitted Encumbrances (a “Title Policy”);
(iii)a survey of the applicable Mortgaged Property for which all necessary fees (where applicable) have been paid (a) prepared by a licensed, insured and qualified
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surveyor reasonably acceptable to the Collateral Agent, (b) dated or re-certificated not earlier than 60 days prior to the date of such delivery or such other date as may be reasonably satisfactory to the Collateral Agent in its reasonable discretion, (c) for Mortgaged Property situated in the United States, certified to the Administrative Agent, the Collateral Agent the Company, the applicable Credit Party (if any), and the Title Company issuing the Title Policy for such Mortgaged Property, which certification shall be the standard certification required by the Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, and may include additional parties reasonably acceptable to the Collateral Agent, (d) complying with current “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys,” jointly established and adopted by American Land Title Association, and the National Society of Professional Surveyors (except for such deviations as are acceptable to the Collateral Agent), and (e) depicting and describing all buildings and other improvements, any offsite improvements owned or utilized by the Company or applicable Credit Party which are material to use or operation of any facilities located on the Mortgaged Property, the location of any easements, parking spaces, rights of way, building setback lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to the Mortgaged Property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent (a “Real Property Survey”);
(iv)an appraisal report in respect of such Real Property performed by a licensed, insured and qualified third-party real property appraiser certified to, and in form, scope and substance reasonably satisfactory to, the Administrative Agent and in compliance with FIRREA (a “Real Property Appraisal”);
(v)(a) a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination for the Mortgaged Property; and (b) in the event any such Mortgaged Property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the applicable U.S. Borrower, (y) evidence of flood insurance with a financially sound and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and with terms required by the Flood Insurance Laws and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(vi)an environmental assessment report and any other required information regarding environmental matters in respect of such Mortgaged Property and such report and information shall be prepared by an environmental consultant acceptable to the Administrative Agent and shall be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion;
(vii)if reasonably requested by the Administrative Agent, a seismic report in respect of such Mortgaged Property performed by a licensed, insured and qualified third-party consultant in form, scope and substance reasonably satisfactory to the Administrative Agent;
(viii)customary favorable written opinions, addressed to the Collateral Agent and the Secured Creditors, of local counsel to the Credit Parties in each jurisdiction (i) where a Mortgaged Property is located and (ii) where the applicable Credit Party granting
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the Mortgage on said Mortgaged Property is organized, regarding the due authorization, execution, delivery, perfection and enforceability of each such Mortgage, the corporate formation, existence and good standing of the applicable Credit Party under the laws of its jurisdiction of formation, and such other matters as may be reasonably requested by the Administrative Agent, each in form and substance reasonably satisfactory to the Administrative Agent; and
(ix)such other documents as the Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent.
The Administrative Agent shall have the right to establish, modify or eliminate Reserves against Eligible Real Property from time to time in its Permitted Discretion; provided that with respect to facts or events known to the Administrative Agent prior to the Ninth Amendment Effective Date, the Administrative Agent may impose new Reserves only to reflect a change in circumstances, events, conditions, contingencies or risks in respect of such facts or events. The criteria for Eligible Real Property may only be revised or any new criteria for Eligible Real Property may only be established by the Administrative Agent in its Permitted Discretion based on either (i) an event, condition or other circumstance arising after the Ninth Amendment Effective Date, or (ii) an event, condition or other circumstance existing on the Ninth Amendment Effective Date to the extent the Administrative Agent has no notice thereof from a Borrower prior to the date hereof, in either cause under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Fair Market Value of the Real Property as determined by the Administrative Agent in its Permitted Discretion.
“Eligible Real Property Deliverables” shall have the meaning provided in the definition of “Eligible Real Property”.
“Eligible Service Parts Inventory” shall mean all Eligible Inventory consisting of service parts (as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion and consistent with past practices).
“Eligible Transferee” shall mean and include a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), but in any event excluding the Company and its Subsidiaries and Affiliates, any natural person and any person that at the time of determination is a Defaulting Lender.
“Eligible UK Finished Goods Inventory” shall mean the Eligible Finished Goods Inventory owned by any UK Borrower.
“Eligible UK In-Transit Inventory” shall mean the Eligible In-Transit Inventory owned by any UK Borrower.
“Eligible UK Inventory” shall mean Eligible UK Finished Goods Inventory, Eligible UK In-Transit Inventory, Eligible UK Raw Materials Inventory and Eligible UK WIP Inventory.
“Eligible UK Raw Materials Inventory” shall mean the Eligible Raw Materials Inventory owned by any UK Borrower.
“Eligible UK Service Parts Inventory” shall mean the Eligible Service Parts Inventory owned by any UK Borrower.
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“Eligible UK Vendor In-Transit Inventory” shall mean the Eligible Vendor In-Transit Inventory owned by any UK Borrower.
“Eligible UK WIP Inventory” shall mean the Eligible WIP Inventory owned by any UK Borrower.
“Eligible U.S. Accounts” shall mean the Eligible Accounts owned by any U.S. Borrower.
“Eligible U.S. Cash and Cash Equivalents” shall mean the Eligible Cash and Cash Equivalents owned by any U.S. Borrower that is reflected in the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 9.01(h).
“Eligible U.S. Finished Goods Inventory” shall mean the Eligible Finished Goods Inventory owned by any U.S. Borrower.
“Eligible U.S. In-Transit Inventory” shall mean the Eligible In-Transit Inventory owned by any U.S. Borrower.
“Eligible U.S. Inventory” shall mean all Eligible U.S. Finished Goods Inventory, Eligible U.S. In-Transit Inventory, Eligible U.S. Raw Materials Inventory and Eligible U.S. WIP Inventory.
“Eligible U.S. Raw Materials Inventory” shall mean the Eligible Raw Materials Inventory owned by any U.S. Borrower.
“Eligible U.S. Service Parts Inventory” shall mean the Eligible Service Parts Inventory owned by any U.S. Borrower.
“Eligible U.S. Vendor In-Transit Inventory” shall mean the Eligible Vendor In-Transit Inventory owned by any U.S. Borrower.
“Eligible U.S. WIP Inventory” shall mean the Eligible WIP Inventory owned by any U.S. Borrower.
“Eligible Vendor In-Transit Inventory” shall mean all Eligible Raw Materials Inventory:
(a)for which the purchase order is in the name of the applicable Borrower and title has passed to such Borrower,
(b)which have been shipped by FOB shipment (seller’s location),
(c)for which the applicable Borrower does not have actual possession,
(d)which is fully insured in such amounts, with insurance companies and subject to such deductibles as are satisfactory to the Administrative Agent in its Permitted Discretion,
(e)which is in-transit to any Company Factory and
(f)which otherwise would constitute Eligible Inventory.
“Eligible WIP Inventory” shall mean all Eligible Inventory consisting of work-in-process (as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion and consistent
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with past practices); provided that Eligible WIP Inventory shall not include Eligible Inventory consisting of work-in-process related to the manufacturing of solar panels or solar shingles.
“Energy Environmental Attribute” shall mean any credit, benefit, reduction, offset or allowance (such as so-called renewable energy certificates, green tags, green certificates, and renewable energy credits), howsoever entitled or named, resulting from, attributable to or associated with the storage or generation of energy, other than the actual electric energy produced, and that is capable of being measured, verified or calculated and in any case may be lawfully marketed to third parties. By way of illustration, Energy Environmental Attributes may result from: the generation system’s use of a particular renewable energy source; avoided NOx, SOx, CO2 or greenhouse gas emissions and other carbon credits and offsets; avoided water use or as otherwise specified under any applicable energy-related private or governmental program. Notwithstanding any of the foregoing in this definition or any other provision of the Tenth Amendment or the Credit Agreement, Energy Environmental Attributes shall not in any case include: (i) any of the foregoing obtained by, provided to, used by or necessary for the Company or any of its Subsidiaries to conduct any of its operations at any location (and shall not include any water rights or other rights or credits obtained pursuant to requirements of applicable law in order to site and develop any facility); or (ii) any production tax credits.
“Energy Storage Agreement” shall mean a battery services contract, a battery sale contract, a battery installation contract, a battery dispatch contract, a market participation contract involving batteries, a shared revenue and cost avoidance contract, a capacity contract, a tolling contract, demand response contract or similar agreement, a software contract pertaining to the dispatch or other management of batteries, or any agreement similar to the foregoing.
“Energy Storage Assets” shall mean Energy Storage Systems, Host Customer Agreements and Projects and Equity Interests in Excluded Energy Storage Subsidiaries.
“Energy Storage Systems” shall mean all parts of an energy storage system, including batteries, solar panels, inverters, wiring and other electrical devices, conduit, housings, hardware, remote monitoring equipment, connectors, meters, disconnects and other related devices, including associated balance of plant.
“Energy Storage Working Capital Facility” shall mean a credit facility providing working capital or warehouse financing for the acquisition or development of Energy Storage Assets prior to the sale or contribution of such Energy Storage Assets into a Permitted Securitization Facility.
“Environmental Attribute” shall mean an Energy Environmental Attribute or a Vehicle Environmental Attribute.
“Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations and/or proceedings relating in any way to any noncompliance with, or liability arising under, Environmental Law or to any permit issued, or any approval given, under any Environmental Law (hereafter, “Claims”), including (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief arising out of or relating to an alleged injury or threat of injury to human health, safety or the environment due to the presence of Hazardous Materials.
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“Environmental Law” shall mean any Federal, state, provincial, foreign or local statute, law (including principles of common law), rule, regulation, ordinance, code, directive, judgment, order or agreement, now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, in each case having the force and effect of law and relating to the protection of the environment, or of human health (as it relates to the exposure to environmental hazards) or to the presence, Release or threatened Release, or the manufacture, use, transportation, treatment, storage, disposal or recycling of Hazardous Materials, or the arrangement for any such activities.
“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any of its Subsidiaries directly or indirectly resulting from or based upon (a) any violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equipment” shall mean any “equipment” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York owned by any U.S. Borrower, and in any event, shall include, but shall not be limited to, all machinery, equipment, furnishings and fittings now or hereinafter owned by any U.S. Borrower and all additions, all accessions thereto, wherever located, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
“Equity Interests” of any Person shall mean any and all shares, rights to purchase, warrants, options, participation or other equivalents of or interest in (however designated) equity of such Person, including any common stock, preferred stock, any limited or general partnership interest and any limited liability company membership interest, but excluding, for the avoidance of doubt, any Permitted Convertible Notes or any SolarCity Convertible Notes.
“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) or Person that for purposes of Section 302 of ERISA or Section 412 of the Code would be deemed at any relevant time to be a single employer or otherwise aggregated with the Company or any of its Subsidiaries under Section 414 of the Code or Section 4001 of ERISA.
“ERISA Event” shall mean any one or more of the following:
(a)any Reportable Event;
(b)the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan or the termination of any Plan under Section 4041(c) of ERISA;
(c)institution of proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan;
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(d)the failure to make a required contribution to any Plan that would result in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance; the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Plan; or a determination that any Plan is considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA; the Company, any of its Subsidiaries or any ERISA Affiliate incurring any liability under Section 436 of the Code, or a violation of Section 436 of the Code with respect to a Plan; or the failure to make any required contribution to a Multiemployer Plan pursuant to Sections 431 or 432 of the Code;
(e)engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to or relating to a Plan or assets of a Plan;
(f)the complete or partial withdrawal of the Company or any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan, the insolvency under Title IV of ERISA of any Multiemployer Plan; or the receipt by the Company or any of its Subsidiaries or any ERISA Affiliate, of any notice, or the receipt by any Multiemployer Plan from any of the Company, any of its Subsidiaries or any ERISA Affiliate of any notice, that a Multiemployer Plan is in endangered or critical status under Section 432 of the Code or Section 305 of ERISA; or
(g)the Company, any of its Subsidiaries or any ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA).
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Euro Denominated Loans” shall mean each Loan denominated in Euros at the time of the incurrence thereof.
“EURO Screen Rate” shall have the meaning provided in the definition of “LIBO Rate”.
“Euros” and the designation “€” shall mean the currency introduced on January 1, 1999 at the start of the third stage of European economic and monetary union pursuant to the Treaty on the European Union (expressed in euros).
“Event of Default” shall have the meaning provided in Section 11.
“Excess Availability” shall mean, as of any date of determination (but otherwise subject to Section 3.02(b)), the amount by which (a) Availability at such time exceeds (b) the Aggregate Exposure at such time.
“Excluded Accounts” shall mean all Deposit Accounts, securities accounts and commodities accounts established (or otherwise maintained) by the Company or any of its Subsidiaries other than Core Deposit Accounts, DB Accounts and Controlled Securities Accounts.
“Excluded Charging Subsidiaries” shall mean those direct or indirect subsidiaries of the Company (a) in which the Company owns, directly or indirectly, Equity Interests of less than fifty-one percent (51%), (b) that own, lease or finance (or own any Subsidiary that is formed for such purpose) no assets
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other than Charging Assets, (c) whose sole assets consist of Equity Interests in Excluded Charging Subsidiaries of the type described in the foregoing clause (b), or (d) created for or encumbered by transactions involving monetization of Vehicle Environmental Attributes.
“Excluded Energy Storage Subsidiaries” shall mean those direct or indirect Subsidiaries of the Company (a) in which the Company owns, directly or indirectly, Equity Interests of less than fifty-one percent (51%), (b) that own, lease or finance (or own any Subsidiary that is formed for such purpose) no assets other than Energy Storage Assets, (c) whose sole assets consist of Equity Interests in Excluded Energy Storage Subsidiaries of the type described in the foregoing clause (b), or (d) created for or encumbered by transactions involving monetization of credits, certificates or incentives.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, and only for so long as, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, as applicable, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation thereof) by virtue of such Guarantor’s failure to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (each, an “ECP”) at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.
“Excluded Taxes” shall have the meaning provided in Section 5.04(a).
“Existing Convertible Notes” shall mean, collectively, the 20182021 Convertible Notes, the 2019 Convertible Notes, the 20212022 Convertible Notes and the 20222024 Convertible Notes.
“Existing Convertible Notes Documents” shall mean, collectively, the 20182021 Convertible Notes Documents, the 2019 Convertible Notes Documents, the 20212022 Convertible Notes Documents and the 20222024 Convertible Notes Documents.
“Existing Convertible Notes Indentures” shall mean, collectively, the 20182021 Convertible Notes Indenture, the 2019 Convertible Notes Indenture, the 20212022 Convertible Notes Indenture and the 20222024 Convertible Notes Indenture.
“Existing Indebtedness” shall have the meaning provided in Section 8.20.mean the Indebtedness (including Contingent Obligations) of the Company and its Subsidiaries as of the Effective Date set forth on Schedule 8.20 to the Disclosure Letter and which is to remain outstanding after giving effect to the Transaction (excluding (i) the Obligations, (ii) the Existing Convertible Notes and (iii) any existing intercompany Indebtedness among the Company and its Subsidiaries).
“Expenses” shall mean all present and future reasonable and invoiced out of pocket expenses incurred by or on behalf of the Administrative Agent, the Collateral Agent or any Issuing Lender in connection with this Agreement, any other Credit Document or otherwise in its capacity as the Administrative Agent under this Agreement or the Collateral Agent under any Security Document or as an Issuing Lender under this Agreement, whether incurred heretofore or hereafter, which expenses shall include the expenses set forth in Section 13.01, the cost of record searches, the reasonable fees and expenses of attorneys and paralegals, all reasonable and invoiced costs and expenses incurred by the Administrative Agent and the Collateral Agent in opening bank accounts, depositing checks, electronically or otherwise receiving and transferring funds, and any other charges imposed on the
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Administrative Agent and/or the Collateral Agent due to insufficient funds of deposited checks and the standard fee of the Administrative Agent and the Collateral Agent relating thereto, collateral examination fees and expenses required to be paid hereunder by the Borrowers, reasonable fees and expenses of accountants and appraisers, reasonable fees and expenses of other consultants, experts or advisors employed or retained by the Administrative Agent or the Collateral Agent, fees and taxes related to the filing of financing statements, costs of preparing and recording any other Credit Documents, all expenses, costs and fees set forth in this Agreement and the other Credit Documents, all other fees and expenses required to be paid pursuant to any other letter agreement and all fees and expenses incurred in connection with releasing Collateral and the amendment or termination of any of the Credit Documents.
“Extended Final Maturity Date” shall mean, with respect to any Extended Loan or Extended Revolving Loan Commitment, the agreed upon date occurring after the 2023 ExtendedInitial Maturity Date as specified in the applicable definitive documentation thereof.
“Extended Loan” shall mean each Revolving Loan and each Swingline Loan pursuant to an Extended Revolving Loan Commitment.
“Extended Revolving Loan” shall mean each Revolving Loan pursuant to an Extended Revolving Loan Commitment.
“Extended Revolving Loan Commitment” shall have the meaning provided in Section 2.19(c)(i).
“Extension” shall have the meaning provided in Section 2.19(a).
“Extension Offer” shall have the meaning provided in Section 2.19(a).
“Facing Fee” shall have the meaning provided in Section 4.01(c).
“Fair Market Value” shall mean, with respect to any asset (including any Equity Interests of any Person), (i) the price thereof to the extent that the same is readily available on an active trading market or (ii) if such price is not so readily available, the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the board of directors or other governing body or, pursuant to a specific delegation of authority by such board of directors or governing body, a designated senior executive officer, of the Company or the Subsidiary of the Company selling such asset.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as enacted on the Effective Date (or any amended or successor provision that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements entered into in connection with the implementation of such Sections of the Code, and any fiscal or regulatory legislation or rules adopted pursuant to such intergovernmental agreements.
“Federal Funds Rate” shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent; provided that if
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the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fees” shall mean all amounts payable pursuant to or referred to in Section 4.01.
“Final Maturity Date” shall mean (a) with respect to any Revolving Loan Commitments (other than the 2023 Extended Revolving Loan Commitments and the Extended Revolving Loan Commitments) the Initial Maturity Date, (b) with respect to the 2023 Extended Revolving Loan Commitments, the 2023 Extended Maturity Date and (c); provided that, with respect to any Extended Revolving Loan Commitment, the Final Maturity Date with respect thereto instead shall be the Extended Final Maturity Date.
“FIRREA” shall mean the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended.
“First Amendment” shall mean the First Amendment to Amended and Restated ABL Credit Agreement, dated as of the First Amendment Effective Date, among the Company, Tesla B.V., Tesla UK, the lenders party thereto, the Collateral Agent and the Administrative Agent.
“First Amendment Effective Date” shall mean NovDecember 323, 20152020.
“First Priority” shall mean, with respect to any Lien purported to be created on any Collateral pursuant to any Security Document, that such Lien is prior in right to any other Lien thereon, other than (i) in respect of any Collateral (other than cash or Cash Equivalents), any Permitted Liens (excluding Permitted Liens under Section 10.01(s)) applicable to such Collateral arising by operation of law and which as a matter of law (and giving effect to any actions taken pursuant to the last paragraph of Section 10.01) have priority over the respective Liens on such Collateral created pursuant to the relevant Security Document, (ii) any Lien on property that would otherwise constitute Eligible Inventory but is subject to a lease that grants to the landlord thereunder a first priority perfected security interest in such property, (iii) in respect of any Eligible Machinery and Equipment, Liens permitted by (x) Section 10.01(b)(i) so long as any such Lien does not secure amounts overdue by more than 30 days and (y) Section 10.01(b)(ii) so long as adequate reserves in respect of GAAP have been reserved in respect thereof and (iv) in respect of any Eligible Real Property, Liens permitted by Sections 10.01(a), (b)(i), (b)(ii) (so long as adequate reserves in respect of GAAP have been reserved in respect thereof), (e), (h) and (k) (such Liens described in clauses (i), (ii), and (iii) and (iv) above, “First Priority Priming Liens”).
“First Priority Priming Liens” shall have the meaning provided in the definition of First Priority.
“First Usage Date” shall mean the first date on which the Aggregate Exposure is greater than zero.
“Fixed Charge Coverage Ratio” shall mean, for any period, the ratio of (a)(i) Consolidated EBITDA for such period minus (ii) the aggregate amount of all Unfinanced Capital Expenditures made by the Company and its Consolidated Subsidiaries during such period minus (iii) the aggregate amount of all cash payments made by the Company and its Consolidated Subsidiaries in respect of income taxes or income tax liabilities (net of cash income tax refunds) during such period minus (iv) the aggregate amount of all cash Dividends paid by the Company or any of its Subsidiaries to any Person other than the Company or any of its Subsidiaries as permitted under Section 10.03 for such period to (b) Fixed Charges for such period.
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“Fixed Charges” shall mean, for any period, the sum of (a) any amortization or other scheduled or mandatory principal payments made during such period on all Indebtedness of the Company and its Consolidated Subsidiaries for such period (including the principal component of all obligations in respect of all Capitalized Lease Obligations, but excluding (xw) the payment or Net Share Settlement of any Permitted Convertible Notes or any SolarCity Convertible Notes at their respective final maturity date or upon conversion thereof and, (yx) customary mandatory repayments associated with customary excess cash flow provisions and with asset sales, casualty and condemnation events, the incurrence of Indebtedness for borrowed money and the issuance of Equity Interests (but only to the extent made with the net cash proceeds from such asset sales, casualty and condemnation events, incurrences of Indebtedness and issuance of Equity Interests) and (y) payments in connection with the refinancing of Indebtedness) (for the avoidance of doubt, this clause (a) shall not apply to payments made under any working capital facility), plus (b) Consolidated Interest Expense of the Company and its Consolidated Subsidiaries for such period payable in cash, plus (c) the Net RVG Repurchase Amount for such period.
“Flood Insurance Laws” shall mean, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Currency” shall mean any currency other than U.S. Dollars which is (a) readily available and freely transferable and convertible into U.S. Dollars and (b) available in the London interbank deposit market.
“Foreign Currency Denominated Loans” shall mean each Loan denominated in an Acceptable Foreign Currency at the time of the incurrence thereof.
“Foreign Lender” shall mean any Lender that is not a U.S. Person.
“Foreign Pension Plan” shall mean any plan, fund (including any superannuation fund) or other similar program established or maintained outside the United States by the Company or any one or more of its Subsidiaries primarily for the benefit of employees of the Company or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“Foreign Subsidiary” of any Person shall mean any Subsidiary of such Person that is not a Domestic Subsidiary of such Person.
“Foreign Taxes” shall mean any tax imposed by EC Directive 2006/112/EC on the Common System of value added tax, and any national legislation implementing that directive (including the United Kingdom’s Value Added Tax Act 1994), together with any legislation supplemental thereto, and any other tax of a similar nature and all penalties, costs and interest related thereto (including any Canadian harmonized sales tax, goods and service tax or any other sales tax imposed by Canada or any province or territory thereof).
“Fremont Factory” shall mean the Company’s factory located at 00000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx and ancillary supporting locations located in the United States and designated by the Company as a “Fremont ancillary location” in writing to the Administrative Agent.
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“Fremont Real Property” shall mean the real property owned by the Company located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, and any other Real Property ancillary or related to the foregoing and owned by the Company or any Credit Party in Fremont, California.
“GAAP” shall mean generally accepted accounting principles in the United States as in effect from time to time; provided that determinations in accordance with GAAP for purposes of Section 10 and the calculation of the Fixed Charge Coverage Ratio and the Total Leverage Ratio, in each case including defined terms as used therein, are subject to Section 13.0713.08(a).
“Governmental Authority” shall mean the government of the United States, the Netherlands, Belgium, the United Kingdom, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantor” shall mean and include each U.S. Guarantor and, each Dutch Guarantor and each UK Guarantor.
“Guaranty” shall mean the U.S. Guaranty and, the Dutch Guaranty and the UK Guaranty.
“Hazardous Materials” shall mean any chemicals, materials, wastes, pollutants, contaminants, or substances in any form that is prohibited, limited or regulated pursuant to any Environmental Law by virtue of their toxic or otherwise deleterious characteristics, including any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, and radon gas.
“Host Customer Agreements” shall mean the Energy Storage Agreements and Customer Lease Agreements.
“Immaterial Subsidiary” shall mean, as of any date of determination, any Wholly-Owned Domestic Subsidiary of the Company or, any Wholly-Owned Dutch Subsidiary of Tesla B.V. (in eitheror any Wholly Owned UK Subsidiary of Tesla UK (in each case, other than a Borrower) (x) that has not guaranteed any other Indebtedness of any Borrower other than a guarantee by any Subsidiary that was created to satisfy state dealer requirements, (y) whose consolidated total assets (as set forth in the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP, but excluding intercompany assets), do not constitute more than 5.0% of the Consolidated Total Assets and (z) whose consolidated total revenues (as set forth in the most recent income statement of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP) do not constitute more than 5.0% of the consolidated total revenues of the Company and its Consolidated Subsidiaries (as set forth in the most recent income statement of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP).
“Impacted Lender” shall have the meaning provided in Section 2.10(ef).
“Impacted UK Lender” shall have the meaning provided in Section 2.10(g).
“Incremental Commitment” shall mean, for any Lender, any Revolving Loan Commitment provided by such Lender after the Effective Date in an Incremental Commitment Agreement delivered
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pursuant to Section 2.14; it being understood, however, that on each date upon which an Incremental Commitment of any Lender becomes effective, such Incremental Commitment of such Lender shall be added to (and thereafter become a part of) the Revolving Loan Commitment of such Lender for all purposes of this Agreement as contemplated by Section 2.14.
“Incremental Commitment Agreement” shall mean each Incremental Commitment Agreement in substantially the form of Exhibit F (appropriately completed, and with such modifications as may be reasonably satisfactory to the Administrative Agent) executed and delivered in accordance with Section 2.14.
“Incremental Commitment Date” shall mean each date upon which an Incremental Commitment under an Incremental Commitment Agreement becomes effective as provided in Section 2.14(b).
“Incremental Commitment Requirements” shall mean, with respect to any provision of an Incremental Commitment on a given Incremental Commitment Date, the satisfaction of each of the following conditions on the Incremental Commitment Date of the respective Incremental Commitment Agreement: (i) no Default or Event of Default exists or would exist after giving effect thereto; (ii) all of the representations and warranties contained in the Credit Documents shall be true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date) (it being understood that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or any similar language shall be true and correct in all respects as of such date); (iii) the delivery by the Company to the Administrative Agent of an acknowledgment, in form and substance reasonably satisfactory to the Administrative Agent and executed by each Credit Party, acknowledging that such Incremental Commitment and all Revolving Loans subsequently incurred, and Letters of Credit issued, as applicable, pursuant to such Incremental Commitment shall constitute Obligations and Guaranteed Obligations (as defined under each Guaranty) under the Credit Documents and secured on a pari passu basis with the applicable Obligations under the Security Documents; (iv) the delivery by each Credit Party to the Administrative Agent of such other officers’ certificates, board of director (or equivalent governing body) resolutions, evidence of good standing (to the extent available under applicable law) and opinions of counsel (which shall be substantially similar to such opinions of counsel delivered on the Effective Date) as the Administrative Agent shall reasonably request; (v) the Company shall have delivered a certificate executed by an Authorized Officer of the Company, certifying to such officer’s knowledge, compliance with the requirements of preceding clauses (i) and (ii); and (vi) the completion by each Credit Party of (x) such other conditions precedent that may be included in the respective Increased Commitment Agreement and (y) such other actions as the Administrative Agent may reasonably request in connection with such Incremental Commitment in order to create, continue or maintain the security interest of the Collateral Agent in the Collateral and the perfection thereof (including any amendments to the Security Documents and such other documents and assurances reasonably requested by the Administrative Agent to be delivered in connection therewith).
“Incremental Lender” shall have the meaning provided in Section 2.14(b).
“Incremental Security Documents” shall have the meaning provided in Section 2.14(b).
“Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness of such Person for borrowed money, (ii) for the deferred purchase price of property or services, (iii) obligations evidenced by notes, bonds, debentures and similar instruments, (iv) the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances and bank guarantees issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers’ acceptances and bank guarantees, (v) all Capitalized Lease Obligations of such Person and
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purchase money indebtedness, (vi) all Contingent Obligations of such Person in respect of Indebtedness set forth in another clause of this definition, (vii) obligations arising in connection with any Permitted Securitization Facility to the extent reflected as liabilities on the balance sheet of such Person prepared in accordance with GAAP and (viii) all obligations of the kind referred to in another clause of this definition secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by any Lien on property (including accounts and contract rights) owned or acquired by such Person, whether or not such Person has assumed or become liable for the payment of such obligation. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is directly liable therefor pursuant to applicable law, contract or organizational documents as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, Indebtedness shall not include (i) trade payables (so long as they are not more than 180 days past due), accrued expenses and deferred tax and other credits incurred by any Person in accordance with customary practices and in the ordinary course of business of such Person, (ii) any earn-out obligations until such obligation is past due, (iii) obligations incurred among the Credit Parties and their respective Subsidiaries in the ordinary course of business for the purchase of goods and services or, (iv) third party obligations included in the Company’s financial statements as a result of variable interest entity accounting and (v) payments for property or services in the ordinary course of business that are payable over a period not to exceed one year and at 0% interest. For purposes solely of (x) Sections 10.04 and 11.04, all obligations under any Interest Rate Protection Agreement or any Other Hedging Agreement (and with the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such obligations that would be payable by such Person at such time) shall be deemed to be Indebtedness and (y) Section 11.04, Qualified Preferred Stock that contains restrictive or financial covenants shall be deemed to be Indebtedness.
“Indemnified Person” shall have the meaning provided in Section 13.01(c).
“Indemnified Taxes” shall have the meaning provided in Section 5.04(a).
“Individual Exposure” of any Lender shall mean, at any time, the sum of (a) the aggregate principal amount of all Revolving Loans made by such Lender and then outstanding (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency), (b) such Lender’s RL Percentage of the aggregate principal amount of all Swingline Loans then outstanding, (c) such Lender’s RL Percentage of the aggregate amount of all Letter of Credit Outstandings (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency) at such time and (d) such Lender’s RL Percentage of the aggregate principal amount of all Agent Advances then outstanding.
“Initial Maturity Date” shall mean June 10July 1, 20202023.
“Initial Revolving Loan Commitments” shall mean Revolving Loan Commitments that mature on the Initial Maturity Date.
“Insolvency Proceeding” shall mean any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any state or foreign bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief, including any proceeding commenced by or against any Person under any Dutch Insolvency Law or UK Insolvency Law.
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“Insolvency Regulation” shall have the meaning provided in Section 8.01.
“Intercompany Debt” shall mean any Indebtedness, whether now existing or hereafter incurred, owed by the Company or any Subsidiary of the Company to the Company or any other Subsidiary of the Company.
“Intercompany Loans” shall mean any intercompany loans and advances between or among the Company and its Subsidiaries.
“Intercreditor Agreement” shall mean an intercreditor agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Collateral Agent, the U.S. Credit Parties, the Dutch Credit Parties (if applicable), the UK Credit Parties (if applicable) and each collateral agent or trustee for the holders of any Permitted Additional Secured Indebtedness, as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.
“Interest Determination Date” shall mean, with respect to any LIBOR Loan, the second Business Day prior to the commencement of any Interest Period relating to such LIBOR Loan.
“Interest Period” shall have the meaning provided in Section 2.09.
“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar agreement or arrangement.
“Inventory” shall mean “inventory” as such term is defined in Article 9 of the UCC.
“Inventory Reserves” shall mean the Physical Inventory Adjustment Reserve and the Locations Reserve.
“Investment” shall mean, with respect to the Company or any of its Subsidiaries, any of the following: lending money or credit or making advances to any other Person, or purchasing or acquiring any stock, obligations or securities of, or any other Equity Interest in, or making any capital contribution to, any other Person, or purchasing or owning a futures contract or otherwise becoming liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or holding any cash or Cash Equivalents.
“Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Xxxxx’x and BBB- (or the equivalent) by S&P (or the equivalent investment grade rating by any other securities rating organization nationally recognized in the United States).
“ISDA Definitions” shall mean the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Issuer Option” shall mean (a) any Note Hedge Option and (b) any Upper Strike Option.
“Issuing Lender” shall mean each of (i) DBNY (except as otherwise provided in Section 12.09), (ii) Xxxxxx Xxxxxxx Senior Funding Inc., (iii) Bank of America, N.A., (iv) Xxxxx Fargo Bank, National Association, (v) Citibank, N.A., (vi) Barclays Bank PLC and (vii) any other Lender reasonably acceptable to the Administrative Agent and the Company which agrees to issue Letters of Credit hereunder; provided
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that, (x) on the occurrence of the Initial Maturity Date, any Issuing Lender that does not have an Affiliate that is a Lender with 2023 Extended Revolving Loan Commitments shall have the right to resign as such on, or on any date within 20 Business Days after, the Initial Maturity Date and (y) if any Extension is effected in accordance with Section 2.19, then on the occurrence of the 2023 ExtendedInitial Maturity Date, each Issuing Lender shall have the right to resign as such on, or on any date within 20 Business Days after, the 2023 ExtendedInitial Maturity Date, in each of the cases in clause (x) and clause (y), upon not less than 30 days’ prior written notice thereof to the Company and the Administrative Agent and, in the event of any such resignation and upon the effectiveness thereof, the resigning Issuing Lender shall retain all of its rights hereunder and under the other Credit Documents as Issuing Lender with respect to all Letters of Credit theretofore issued by it (which Letters of Credit shall remain outstanding in accordance with the terms hereof until their respective expirations) but shall not be required to issue any further Letters of Credit hereunder. If at any time and for any reason (including as a result of resignations as contemplated by the last proviso to the preceding sentence), an Issuing Lender has resigned in such capacity in accordance with the preceding sentence and no Issuing Lenders exist at such time, then no Person shall be an Issuing Lender hereunder obligated to issue Letters of Credit unless and until (and only for so long as) a Lender (or Affiliate of a Lender) reasonably satisfactory to the Administrative Agent and the Company agrees to act as Issuing Lender hereunder. Any Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by one or more Affiliates of such Issuing Lender (and such Affiliate shall be deemed to be an “Issuing Lender” for all purposes of the Credit Documents). Notwithstanding anything to the contrary contained herein, Xxxxx Fargo Bank, National Association shall be an Issuing Lender solely with respect to Letters of Credit denominated in U.S. Dollars and shall be under no obligation to issue (and the Borrowers shall not request Xxxxx Fargo Bank, National Association to issue) any Letter of Credit denominated in a currency other than U.S. Dollars. Notwithstanding anything to the contrary contained herein, each of DBNY, Barclays Bank PLC and Xxxxxx Xxxxxxx Senior Funding Inc. shall be an Issuing Lender solely with respect to standby Letters of Credit and shall be under no obligation to issue trade Letters of Credit (and the Borrowers shall not request any of DBNY, Barclays Bank PLC or Xxxxxx Xxxxxxx Senior Funding Inc. to issue such trade Letters of Credit).
“Joinder Agreement” shall mean a Joinder Agreement substantially in the form of Exhibit N (appropriately completed).
“Judgment Currency” shall have the meaning provided in Section 13.2013.21.
“Judgment Currency Conversion Date” shall have the meaning provided in Section 13.2013.21.
“Landlord Personal Property Collateral Access Agreement” shall mean a Landlord Waiver and Consent Agreement substantially in the form of Exhibit M, with such amendments, modifications or supplements thereto, or such other form, in each case as may be reasonably acceptable to the Administrative Agent.
“L/C Supportable Obligations” shall mean (i) obligations (including Indebtedness) of the Company or any of its Subsidiaries with respect to workers compensation, surety bonds and other similar statutory obligations and (ii) such other obligations (including Indebtedness) of the Company or any of its Subsidiaries as are otherwise permitted to exist pursuant to the terms of this Agreement (other than obligations (including Indebtedness) in respect of (v) any Permitted Convertible Notes, (w) any Permitted Additional Indebtedness, (x) any Cash Flow Revolving Indebtedness, (y) any Indebtedness or other obligations that are contractually subordinated in right of payment to the Obligations and (z) any Equity Interests).
“Leaseholds” of any Person shall mean all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land (including all improvements and/or fixtures thereon).
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“Lender” shall mean each financial institution listed on Schedule 1.01(a), as well as any Person that becomes a “Lender” hereunder pursuant to Section 2.13, Section 2.14 or Section 13.0413.05(b). The term “Lender” shall include the Swingline Lender and the Issuing Lenders where applicable.
“Lender Counterparty” shall mean any counterparty to an Interest Rate Protection Agreement and/or Other Hedging Agreement that is (a) the Administrative Agent, a Lender or an affiliate of the Administrative Agent or a Lender or (b) the Administrative Agent, a Lender or an affiliate of the Administrative Agent or a Lender at the time such Person enters into such Interest Rate Protection Agreement and/or Other Hedging Agreement (even if the Administrative Agent or such Lender subsequently ceases to be the Administrative Agent or a Lender, as the case may be, under this Agreement for any reason, together with the Administrative Agent’s, such Lender’s or such affiliate’s successor and assigns), so long as the Administrative Agent, such Lender, such affiliate or such successor or assign participates in such Interest Rate Protection Agreement and/or Other Hedging Agreement.
“Lender Party” shall mean the Administrative Agent, the Issuing Lenders, the Swingline Lender or any other Lender.
“Letter of Credit” shall have the meaning provided in Section 3.01(a).
“Letter of Credit Back-Stop Arrangements” shall have the meaning provided in Section 2.15(a)(ii).
“Letter of Credit Exposure” shall mean, at any time, the aggregate amount of all Letter of Credit Outstandings at such time in respect of Letters of Credit. The Letter of Credit Exposure of any Lender at any time shall be its RL Percentage of the aggregate Letter of Credit Exposure at such time.
“Letter of Credit Fee” shall have the meaning provided in Section 4.01(b).
“Letter of Credit Outstandings” shall mean, at any time, the sum of (i) the Stated Amount of all outstanding Letters of Credit at such time and (ii) the aggregate amount of all Unpaid Drawings in respect of all Letters of Credit at such time.
“Letter of Credit Request” shall have the meaning provided in Section 3.03(a).
“LIBO Rate” shall mean, with respect to any Borrowing of LIBOR Loans for any Interest Period, the rate per annum determined by the Administrative Agent (a)(i) with respect to any U.S. Dollar Denominated Revolving Loan or Foreign Currency Denominated Loan, by reference to the Reuters Screen LIBOR01 for deposits in the relevant currency (or such other comparable page as may, in the reasonable opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) (the “LIBOR Screen Rate”) for a period equal to such Interest Period as of the Specified Time on the Quotation Day for such Interest Period and (ii) with respect to any Euro Denominated Loan, the interbank offered rate administered by the Banking Federation of the European Union (or any other Person which takes over the administration of such rate) for Euros for a period equal in length to such Interest Period as displayed on page EURIBOR01 of the Reuters screen (or such other comparable page as may, in the reasonable opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) (the “EURO Screen Rate”) as of the Specified Time on the Quotation Day for such Interest Period; provided that, subject to the last paragraph of Section 2.10(ab), to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in the relevant currency are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent as of the
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Specified Time on the Quotation Day for such Interest Period, divided by (b) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves required by applicable law) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D); provided, further, that if the LIBO Rate is less than zero, such rate shall be deemed to be zero for purposes hereof.
“LIBOR Loan” shall mean each (i) U.S. Dollar Denominated Revolving Loan designated as such by the applicable Borrower at the time of the incurrence thereof or conversion thereto and (ii) each Loan denominated in Euros or any Acceptable Foreign Currency.
“LIBOR Screen Rate” shall have the meaning provided in the definition of “LIBO Rate”.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment for security, deposit arrangement, encumbrance, lien (statutory or other), charge, preference, priority or other security agreement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing).
“Liquidity Threshold” shall mean an amount equal to 50% of the Total Revolving Loan Commitment then in effect.
“Loan” shall mean each Revolving Loan and each Swingline Loan.
“Locations Reserve” shall mean a reserve established by the Administrative Agent in respect of Inventory located at locations with less than $100,000 of total Inventory.
“LLC” means any Person that is a limited liability company under the laws of its jurisdiction of formation.
“Mandatory Borrowing” shall have the meaning provided in Section 2.01(c).
“Manufacturing Facility” shall mean any manufacturing facilities or Gigafactory facilities established by the Company or any of its Subsidiaries from time to time.
“Margin Stock” shall have the meaning provided in Regulation U.
“Material Acquisition” shall mean any Acquisition that involves the payment of consideration by the Company and its Subsidiaries in excess of the greater of $75,000,000 and 1.0% of Consolidated Total Assets.
“Material Adverse Effect” shall mean (a) a material adverse change in, or a material adverse effect on, the business, operations, property, assets, liabilities (actual or contingent) or financial condition of the Company and its Subsidiaries taken as a whole or (b) a material adverse effect (i) on the rights or remedies of the Lenders, the Administrative Agent or the Collateral Agent hereunder or under any other Credit Document, (ii) on the ability of the Credit Parties taken as a whole to perform their payment obligations to the Lenders, the Administrative Agent or the Collateral Agent hereunder or under any other Credit Document, or (iii) upon the legality, validity, binding effect or enforceability against any Credit Party of any Credit Document to which it is a party.
“Material Disposition” shall mean any disposition of (i) all or substantially all of the assets of, or the assets constituting a business, division or product line of, the Company or any of its Subsidiaries or
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(ii) 100% of the owned Equity Interests of any Subsidiary of the Company, which Subsidiary shall, as a result of such disposition of Equity Interests, cease to be a Subsidiary of the Company, in each case that yields gross proceeds to the Company and its Subsidiaries in excess of the greater of $75,000,000 and 1.0% of Consolidated Total Assets.
“Material Review Board Inventory” shall mean Inventory of any Borrower that has not passed inspection by the Company’s material review board or that such board has determined requires reworking, needs to be scrapped or is otherwise unfit.
“Material Subsidiary” shall mean, as of any date of determination, any Subsidiary of the Company (a) whose consolidated total assets (as set forth in the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP, but excluding intercompany assets) constitute 5.0% or more of the Consolidated Total Assets and (b) whose consolidated total revenues (as set forth in the most recent income statement of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP, but excluding intercompany revenues) constitute 5.0% or more of the consolidated total revenues of the Company and its Consolidated Subsidiaries (as set forth in the most recent income statement of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP).
“Maximum Letter of Credit Amount” shall have the meaning provided in Section 3.02(a).
“Maximum Rate” shall have the meaning provided in Section 13.2213.23.
“Maximum Swingline Amount” shall mean $50,000,000.
“Merchandise” shall mean apparel, personal accessories and other promotional merchandise items outside of the core business of the Company and its Subsidiaries.
“Minimum Borrowing Amount” shall mean (i) for Base Rate Loans (other than Swingline Loans), $500,000, (ii) for LIBOR Loans denominated in U.S. Dollars, $1,000,000, (iii) for LIBOR Loans denominated in Euros or any Acceptable Foreign Currency, the smallest amount of such currency that is an integral multiple of 1,000,000 units of currency and has a U.S. Dollar Equivalent in excess of $1,000,000, and (iv) for Swingline Loans, $100,000; provided that during a Dominion Period there shall be no Minimum Borrowing Amount with respect to clause (iv) above.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc.
“Mortgage” shall mean any deed of trust, mortgage, deed to secure debt, or other document entered into by the owner of a Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Creditors creating a Lien on such Mortgaged Property in such form as reasonably agreed between the BorrowerCompany and the Collateral Agent.
“Mortgaged Property” shall mean any Real Property owned or leased by any Credit Party which is encumbered (or required to be encumbered) pursuant to the terms of this Agreement or any Security Document.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA, which is contributed to (or to which there is or may be an obligation to contribute to) by the Company or any of its Subsidiaries or an ERISA Affiliate, and each such plan for the five-year period
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immediately following the latest date on which the Company, any of its Subsidiaries or an ERISA Affiliate contributed to or had an obligation to contribute to such plan.
“NAIC” shall mean the National Association of Insurance Commissioners.
“Net Orderly Liquidation Value” shall mean (a) with respect to Inventory, the “net orderly liquidation value” expected to be realized in respect of such Inventory at an orderly, negotiated sale held within a reasonable period of time, less the amount estimated for marshalling, reconditioning, carrying, and sales expenses designated to maximize the resale value of such Inventory, with such net orderly liquidation value determined from the most recent Acceptable Appraisal in respect of such Inventory and expressed as a percentage of the net book value of such Inventory; provided that in calculating the Net Orderly Liquidation Value in respect of Eligible WIP Inventory, Eligible Service Parts Inventory and Eligible Finished Goods Inventory, the Administrative Agent may elect for such percentage to be determined on a blended, product-line or other basis as it determines in its Permitted Discretion and (b) with respect to Equipment, the “net orderly liquidation value” expected to be realized in respect of such Equipment at an orderly, negotiated sale held within a reasonable period of time, less the amount estimated for marshalling, reconditioning, carrying, and sales expenses designated to maximize the resale value of such Equipment, as determined from the most recent Acceptable Appraisal in respect of such Equipment and expressed as a percentage of the net book value of such Equipment.
“Net RVG Repurchase Amount” shall mean, for any period, an amount (not less than zero) equal to the excess of (a) cash paid by the Company and its Subsidiaries during such period to settle guarantee obligations under resale value guarantee programs over (b) cash received by the Company and its Subsidiaries during such period in respect of the resale of cars repurchased pursuant to resale value guarantee programs.
“Net Share Settlement” shall mean any settlement upon conversion of Permitted Convertible Notes or any SolarCity Convertible Notes consisting of Permitted Company Stock, cash or a combination of cash and Permitted Company Stock.
“New B.V.” means Tesla International B.V., a company organized under the laws of the Netherlands and that is (or will be when formed) a Wholly-Owned Subsidiary of Tesla Motors Netherlands Coöperatief U.A.
“Ninth Amendment Effective Date” shall mean May 3, 2018.
“Non-Defaulting Lender” shall mean and include each Lender, other than a Defaulting Lender.
“Non-Wholly-Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.
“Note” shall mean each Dutch Borrower Revolving Note, each U.S. Borrower Revolving Note, each UK Borrower Revolving Note, the Dutch Borrower Swingline Note and the U.S. Borrower Swingline Note.
“Note Hedge Option” shall mean any hedging agreement (including, but not limited to, any bond hedge transaction or capped call transaction), entered into by the Company in connection with the issuance of Permitted Convertible Notes, pursuant to which the Company acquires an option requiring the counterparty thereto to deliver to the Company shares of Permitted Company Stock, the cash value of such shares or a combination thereof from time to time upon exercise of such option.
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“Notice Date” shall have the meaning provided in Section 2.19(a).
“Notice of Borrowing” shall have the meaning provided in Section 2.03(a).
“Notice of Conversion/Continuation” shall have the meaning provided in Section 2.06.
“Notice Office” shall mean the office of the Administrative Agent located at 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 (or such other office or person as the Administrative Agent may hereafter designate in writing as such to the other parties hereto).
“NYFRB” shall mean the Federal Reserve Bank of New York.
“Obligation Currency” shall have the meaning provided in Section 13.2013.21.
“Obligations” shall mean (x) the principal of, premium, if any, and interest on the Notes issued by, and the Loans made to, each Borrower under this Agreement, and all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit, and (y) all other payment obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due), liabilities and indebtedness owing by each Borrower and each other Credit Party to the Administrative Agent, the Collateral Agent, any Issuing Lender, the Swingline Lender or any Lender under this Agreement and each other Credit Document to which any Borrower or other Credit Party is a party (including all indemnities, expenses (including Expenses), Fees and interest thereon (including in each case any interest, Fees or expenses (including Expenses) accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided for in this Agreement or in such other Credit Document, whether or not such interest, Fees or expenses (including Expenses) are an allowed claim in any such proceeding)), whether now existing or hereafter incurred under, arising out of or in connection with each such Credit Document, and all guarantees of the foregoing amounts. Notwithstanding anything to the contrary contained herein or in any other Credit Document, in no event will Obligations include any obligations in respect of any Issuer Option or, for any Guarantor, its Excluded Swap Obligations.
“Original Credit Agreement” shall mean this Agreement, as in effect immediately prior to the Amendment and Restatement Effective Date.
“Original Lender” shall have the meaning provided in Section 5.04(e)(iv).
“Orphan SPV” shall mean a special purpose vehicle, which is not a Subsidiary of the Company, established for the sole purpose of facilitating a financing under a limited recourse financing transaction and that shall not engage in any activities other than in connection with such financing.
“Other Hedging Agreements” shall mean any foreign exchange contracts (including foreign exchange forward contracts and foreign exchange option contracts), currency swap agreements, commodity agreements or other similar contracts or arrangements, or arrangements designed to protect against fluctuations in currency values or commodity prices. For the avoidance of doubt, “Other Hedging Agreements” shall not include any agreements, contracts or arrangements with respect to SRECs or the purchase, sale, transfer, assignment or other disposition thereof.
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing, excise or similar taxes that arise from any payment made under, from the execution, delivery, performance, enforcement, or registration of, from the receipt or perfection of a security interest
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under, or otherwise with respect to, any Credit Document, except any such taxes that are imposed pursuant to an assignment made under Section 13.0413.05(b).
“Participant” shall have the meaning provided in Section 3.04(a).
“Participant Register” shall have the meaning provided in Section 13.0413.05(e).
“Patriot Act” shall have the meaning provided in Section 13.1813.19.
“Payment Conditions” shall mean that either of the following conditions are satisfied at the time of each action or proposed action and immediately after giving effect thereto: (a) there is no Default or Event of Default existing immediately before or after the action or proposed action and Designated Cash is equal to or in excess of the Liquidity Threshold, or (b) there is no Default or Event of Default existing immediately before or after the action or proposed action and either (i) the Company shall be in compliance with a Fixed Charge Coverage Ratio of not less than 1.00:1.00 for the Calculation Period then most recently ended on a Pro Forma Basis as if such action or proposed action had occurred on the first day of such Calculation Period or (ii) 30-Day Excess Availability and Excess Availability on the date of the action or proposed action (calculated after giving effect to the Borrowing of any Loans or issuance of any Letters of Credit in connection with the action or proposed action (and assuming that such Loans and Letters of Credit had remained outstanding throughout the applicable 30-day period (or such shorter period, if applicable) for which 30-Day Excess Availability is to be determined)) exceed 15% of the Availability at such time; provided that the Company shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Company certifying as to (i) compliance with the preceding clauses (a) or (b) and (ii) demonstrating (in reasonable detail) the calculations required by the preceding clause (b).
“Payment Office” shall mean the office of the Administrative Agent located at 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 (or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto).
“PBGC” shall mean the U.S. Pension Benefit Guaranty Corporation.
“Perfected Belgian Liens” shall mean, with respect to any Inventory, that such Inventory is subject to a First Priority perfected Lien under Belgian law.
“Perfected Dutch Liens” shall mean, with respect to any Inventory, that such Inventory is subject to a First Priority perfected Lien under the law of the Netherlands.
“Perfected U.S. Liens” shall mean, with respect to any Inventory, that such Inventory is subject to a First Priority perfected Lien under New York law.
“Permitted Additional Indebtedness” shall mean Permitted Additional Unsecured Indebtedness and Permitted Additional Secured Indebtedness.
“Permitted Additional Indebtedness Documents” shall mean Permitted Additional Unsecured Indebtedness Documents and Permitted Additional Secured Indebtedness Documents.
“Permitted Additional Secured Indebtedness” shall have the meaning provided in Section 10.04(n).
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“Permitted Additional Secured Indebtedness Documents” shall mean (a) on and after the execution and delivery thereof, each note, indenture, purchase agreement, loan agreement, credit agreement, guaranty, security agreement, pledge agreement, mortgage, other security document and other document relating to the incurrence or issuance of any Permitted Additional Secured Indebtedness, as the same may be amended, modified, restated, renewed, extended and/or supplemented from time to time in accordance with the terms hereof and thereof and (b) if secured, the Cash Flow Revolving Documents.
“Permitted Additional Secured Indebtedness Priority Collateral” shall mean all Collateral other than ABL Priority Collateral.
“Permitted Additional Unsecured Indebtedness” have the meaning provided in Section 10.04(n).
“Permitted Additional Unsecured Indebtedness Documents” shall mean, (a) on and after the execution and delivery thereof, each note, indenture, purchase agreement, loan agreement, credit agreement, guaranty and other document relating to the incurrence or issuance of any Permitted Additional Unsecured Indebtedness, as the same may be amended, modified, restated, renewed, extended and/or supplemented from time to time in accordance with the terms hereof and thereof and (b) if unsecured, the Cash Flow Revolving Documents.
“Permitted Bank Financing Account” shall have the meaning provided in the definition of Permitted Bank Financing.
“Permitted Bank Financing” shall mean a transaction in which (i) a bank or other financial institution finances the purchase of a motor vehicle by a customer from a Borrower, (ii) such bank or other financial institution becomes the Account Debtor in respect of the relevant Account (such Account, a “Permitted Bank Financing Account”) and (iii) such bank or other financial institution has no recourse to the Company or any of its Subsidiaries if the customer fails to pay the bank or other financial institution in respect of financing such purchase.
“Permitted Cash Management Liens” shall mean, with respect to any cash or Cash Equivalents credited to a Deposit Account or securities account, (a) Liens with respect to (i) all amounts due to the applicable depositary bank or securities intermediary, as applicable, in respect of customary fees and expenses for the routine maintenance and operation of such Deposit Account or securities account, as applicable, (ii) the face amount of any checks which have been credited to such Deposit Account but are subsequently returned unpaid because of uncollected or insufficient funds, or (iii) other returned items or mistakes made in crediting such Deposit Account, (b) any other Liens permitted under the Cash Management Control Agreement for such Deposit Account or securities account, as applicable, (c) Liens created by the Security Documents and the other Credit Documents, (d) tax Liens permitted by Section 10.01(a)(i) and (e) the junior Permitted Liens under Section 10.01(s).
“Permitted Company Stock” shall mean Company Common Stock and Qualified Preferred Stock.
“Permitted Convertible Notes” shall mean, collectively, the 2018 Convertible Notes, the 2019 Convertible Notes, the 2021 Convertible Notes, the 2022 Convertible Notes, the 2024 Convertible Notes and any Additional Convertible Notes.
“Permitted Convertible Notes Documents” shall mean, collectively, the 2018 Convertible Notes Documents, the 2019 Convertible Notes Documents, the 2021 Convertible Notes Documents, the 2022 Convertible Notes Documents, the 2024 Convertible Notes and any Additional Convertible Notes Documents.
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“Permitted Convertible Notes Indentures” shall mean, collectively, the 2018 Convertible Notes Indenture, the 2019 Convertible Notes Indenture, the 2021 Convertible Notes Indenture, the 2022 Convertible Notes Indenture, the 2024 Convertible Notes Indenture and any Additional Convertible Notes Indenture.
“Permitted Discretion” shall mean the commercially reasonable judgment of the Administrative Agent exercised in good faith in accordance with customary business practices for comparable asset-based lending transactions, as to any factor which the Administrative Agent reasonably determines: (a) will