UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
June 10, 2015
Tesla Motors,
Inc.
(Exact name of registrant as specified in its charter)
|
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| Delaware |
|
001-34756 |
|
91-2197729 |
| (State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
3500 Deer Creek Road
Palo Alto, California 94304
(Address of principal executive offices, including zip code)
(650) 681-5000
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2):
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 |
Entry Into Material Definitive Agreement. |
On June 10, 2015 (the “Closing Date”),
Tesla Motors, Inc. (the “Company”) and its subsidiary Tesla Motors Netherlands B.V. (“Tesla B.V.” and together with the Company, collectively, the “Borrowers”), entered into an ABL Credit Agreement
(the “Credit Agreement”) with Deutsche Bank, Bank of America, Goldman Sachs, JPMorgan Chase, Morgan Stanley, Wells Fargo and Credit Suisse. The Credit Agreement provides for a senior secured asset-based revolving credit facility of
up to $500.0 million (the “Credit Facility”), which the Borrowers may draw upon from time to time. The Company may increase the total commitments under the Credit Facility by up to an additional $250.0 million, subject to certain
conditions, potentially increasing the Credit Facility to up to $750.0 million. In addition, the Credit Agreement provides for a $100.0 million letter of credit subfacility and a $40.0 million swingline loan subfacility. The proceeds of the loans
under the Credit Agreement may be used for working capital and general corporate purposes. The Credit Facility terminates, and all outstanding loans become due and payable, on June 10, 2020. There were no amounts outstanding under the Credit
Facility as of the Closing Date.
Availability under the Credit Facility will be based upon periodic borrowing base certifications valuing certain of the
Borrowers’ inventory, accounts receivable and equipment, as reduced by certain reserves. Outstanding borrowings accrue interest at floating rates plus an applicable margin of 1.0% for LIBOR rate loans, and 0.0% for base rate loans. The
commitment fee payable on the unused portion of the Credit Facility equals 0.25% per annum based on utilization of the Credit Facility.
On the
Closing Date, the Borrowers provided an unconditional guaranty of all amounts owing under the Credit Agreement and related credit documents. Certain material subsidiaries of the Borrowers are required to become parties to these guaranties. The
Borrowers have also granted security interests in their respective accounts, inventory, certain equipment, certain related assets, specified deposit accounts for the collection of accounts receivable, and certain other accounts to secure all
obligations of the Borrowers under the Credit Agreement and the related credit documents. Future subsidiary guarantors are also required to become a party to the applicable security agreements.
The Credit Agreement contains customary affirmative covenants, such as financial statement reporting requirements and delivery of borrowing base certificates.
The Credit Agreement also contains customary covenants that limit the ability of the Company and its subsidiaries to, among other things, pay dividends, incur debt, create liens and encumbrances, or redeem or repurchase stock. Under certain
circumstances, the Company is required to maintain a minimum fixed charge coverage ratio.
The Credit Agreement contains customary events of default, such
as the failure to pay obligations when due, initiation of bankruptcy or insolvency proceedings, defaults on certain other indebtedness, change of control, material breach of representations and warranties, and the failure to meet certain liquidity
conditions with respect to the Company’s convertible senior notes. Upon an event of default, the lenders may, subject to customary cure rights, require the immediate payment of all amounts outstanding and foreclose on collateral.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 above is incorporated herein by reference.
| Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits.
|
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|
| Exhibit
Number |
|
Description |
|
|
| 10.1 |
|
ABL Credit Agreement, dated as of June 10, 2015, by and among Tesla Motors, Inc., Tesla Motors Netherlands B.V., certain of Tesla Motors, Inc.’s and Tesla Motors Netherlands B.V.’s direct or indirect subsidiaries from time
to time party thereto, as borrowers, Wells Fargo Bank, National Association, as documentation agent, JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc. and Bank of America, N.A., as syndication agents, the lenders
from time to time party thereto, and Deutsche Bank AG New York Branch, as administrative agent and collateral agent. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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|
TESLA MOTORS, INC. |
|
|
| By: |
|
/s/ Deepak Ahuja |
|
|
Deepak Ahuja Chief Financial
Officer |
Date: June 12, 2015
Exhibit Index
|
|
|
| Exhibit
Number |
|
Description |
|
|
| 10.1 |
|
ABL Credit Agreement, dated as of June 10, 2015, by and among Tesla Motors, Inc., Tesla Motors Netherlands B.V., certain of Tesla Motors, Inc.’s and Tesla Motors Netherlands B.V.’s direct or indirect subsidiaries from
time to time party thereto, as borrowers, Wells Fargo Bank, National Association, as documentation agent, JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc. and Bank of America, N.A., as syndication agents, the
lenders from time to time party thereto, and Deutsche Bank AG New York Branch, as administrative agent and collateral agent. |
EXHIBIT 10.1
ABL CREDIT AGREEMENT
among
TESLA MOTORS, INC.,
TESLA MOTORS NETHERLANDS B.V.,
VARIOUS LENDERS,
DEUTSCHE BANK
AG NEW YORK BRANCH,
as ADMINISTRATIVE AGENT and COLLATERAL AGENT,
JPMORGAN CHASE BANK, N.A.,
GOLDMAN SACHS BANK USA,
MORGAN
STANLEY SENIOR FUNDING INC.
and
BANK OF AMERICA, N.A.,
as
SYNDICATION AGENTS,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as DOCUMENTATION AGENT
Dated as of
June 10, 2015
DEUTSCHE BANK SECURITIES INC.,
J.P. MORGAN SECURITIES LLC,
GOLDMAN SACHS BANK USA,
MORGAN
STANLEY SENIOR FUNDING INC.,
and
BANK OF AMERICA, N.A.,
as JOINT
LEAD ARRANGERS AND BOOKRUNNERS
TABLE OF CONTENTS
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Page |
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| SECTION 1. |
|
Definitions and Accounting Terms |
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1 |
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| 1.01. |
|
Defined Terms |
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1 |
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| 1.02. |
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Other Definitional Provisions |
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57 |
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| SECTION 2. |
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Amount and Terms of Credit |
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58 |
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| 2.01. |
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The Commitments |
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58 |
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| 2.02. |
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Minimum Amount of Each Borrowing |
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62 |
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| 2.03. |
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Notice of Borrowing |
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62 |
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| 2.04. |
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Disbursement of Funds |
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63 |
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| 2.05. |
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Notes |
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64 |
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| 2.06. |
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Conversions |
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64 |
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| 2.07. |
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Pro Rata Borrowings |
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65 |
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| 2.08. |
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Interest |
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65 |
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| 2.09. |
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Interest Periods |
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66 |
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| 2.10. |
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Increased Costs, Illegality, etc |
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67 |
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| 2.11. |
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Compensation |
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69 |
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| 2.12. |
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Lending Offices and Affiliate Lenders for Loans in Available Currency |
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70 |
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| 2.13. |
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Replacement of Lenders |
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70 |
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| 2.14. |
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Incremental Commitments |
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72 |
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| 2.15. |
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Defaulting Lenders |
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73 |
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| 2.16. |
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[Reserved] |
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75 |
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| 2.17. |
|
[Reserved] |
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75 |
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| 2.18. |
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The Company as Agent for Borrowers |
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75 |
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| 2.19. |
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Extension of Revolving Loan Commitments |
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76 |
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| SECTION 3. |
|
Letters of Credit |
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78 |
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| 3.01. |
|
Letters of Credit |
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78 |
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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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79 |
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| 3.03. |
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Letter of Credit Requests |
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80 |
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| 3.04. |
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Letter of Credit Participations |
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81 |
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| 3.05. |
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Agreement to Repay Letter of Credit Drawings |
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83 |
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i
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| 3.06. |
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Increased Costs |
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84 |
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| 3.07. |
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Extended Revolving Loan Commitments |
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85 |
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| 3.08. |
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Conflict |
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85 |
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| SECTION 4. |
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Commitment Commission; Fees; Reductions of Commitment |
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86 |
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| 4.01. |
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Fees |
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86 |
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| 4.02. |
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Voluntary Termination of Revolving Loan Commitments |
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87 |
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| 4.03. |
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Mandatory Reduction of Commitments |
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87 |
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| SECTION 5. |
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Prepayments; Payments; Taxes |
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88 |
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| 5.01. |
|
Voluntary Prepayments |
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88 |
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| 5.02. |
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Mandatory Repayments; Cash Collateralization |
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89 |
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| 5.03. |
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Method and Place of Payment |
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90 |
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| 5.04. |
|
Net Payments |
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94 |
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| SECTION 6. |
|
Conditions Precedent to Credit Events on the Effective Date |
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97 |
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| 6.01. |
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Effective Date; Notes |
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97 |
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| 6.02. |
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Officer’s Certificate |
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98 |
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| 6.03. |
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Opinions of Counsel |
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98 |
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| 6.04. |
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Company Documents; Proceedings; etc |
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98 |
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| 6.05. |
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Adverse Change; Approvals |
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98 |
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| 6.06. |
|
[Reserved] |
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99 |
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| 6.07. |
|
Guaranty |
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99 |
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| 6.08. |
|
[Reserved] |
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99 |
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| 6.09. |
|
Security Agreement |
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99 |
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| 6.10. |
|
Financial Statements |
|
|
100 |
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| 6.11. |
|
Solvency Certificate; Insurance Certificates |
|
|
100 |
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| 6.12. |
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Fees, Expenses |
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|
100 |
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| 6.13. |
|
Initial Borrowing Base Certificate; Outstanding Indebtedness |
|
|
100 |
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| 6.14. |
|
Appraisals; Field Examinations |
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|
100 |
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| 6.15. |
|
Patriot Act |
|
|
100 |
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| SECTION 7. |
|
Conditions Precedent to All Credit Events |
|
|
101 |
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| 7.01. |
|
No Default; Representations and Warranties |
|
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101 |
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| 7.02. |
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Notice of Borrowing; Letter of Credit Request |
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101 |
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| 7.03. |
|
Borrowing Limitations |
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|
102 |
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| 7.04. |
|
Collateralized Letters of Credit |
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102 |
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ii
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| SECTION 8. |
|
Representations and Warranties |
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|
102 |
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| 8.01. |
|
Company Status |
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|
102 |
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| 8.02. |
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Power and Authority |
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103 |
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| 8.03. |
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No Violation |
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103 |
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| 8.04. |
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Approvals |
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103 |
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| 8.05. |
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Financial Statements; Financial Condition; Undisclosed Liabilities |
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103 |
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| 8.06. |
|
Litigation |
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104 |
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| 8.07. |
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True and Complete Disclosure |
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104 |
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| 8.08. |
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Use of Proceeds; Margin Regulations |
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105 |
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| 8.09. |
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Tax Returns and Payments |
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105 |
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| 8.10. |
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Compliance with ERISA |
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105 |
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| 8.11. |
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Security Documents |
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107 |
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| 8.12. |
|
Properties |
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107 |
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| 8.13. |
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[Reserved] |
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107 |
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| 8.14. |
|
Subsidiaries |
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107 |
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| 8.15. |
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Compliance with Statutes, etc |
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108 |
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| 8.16. |
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Investment Company Act |
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108 |
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| 8.17. |
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Environmental Matters |
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108 |
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| 8.18. |
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Employment and Labor Relations |
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108 |
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| 8.19. |
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Intellectual Property, etc |
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109 |
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| 8.20. |
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Indebtedness |
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109 |
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| 8.21. |
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Insurance |
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110 |
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| 8.22. |
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Borrowing Base Calculation |
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110 |
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| 8.23. |
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Anti-Corruption Laws and Sanctions |
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110 |
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| 8.24. |
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No Default |
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110 |
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| 8.25. |
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Fiscal Unity |
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110 |
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| SECTION 9. |
|
Affirmative Covenants |
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110 |
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| 9.01. |
|
Information Covenants |
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110 |
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| 9.02. |
|
Books, Records and Inspections |
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114 |
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| 9.03. |
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Maintenance of Property; Insurance |
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114 |
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| 9.04. |
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Existence; Franchises |
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115 |
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| 9.05. |
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Compliance with Laws, etc |
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115 |
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| 9.06. |
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Compliance with Environmental Laws |
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115 |
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iii
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| 9.07. |
|
ERISA |
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116 |
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| 9.08. |
|
[Reserved] |
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|
117 |
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| 9.09. |
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Performance of Obligations |
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117 |
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| 9.10. |
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Payment of Taxes |
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117 |
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| 9.11. |
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Use of Proceeds |
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118 |
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| 9.12. |
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Additional Security; Further Assurances; Post-Closing Matters; Additional Borrowers; etc |
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118 |
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| 9.13. |
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Information Regarding Collateral |
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|
121 |
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| 9.14. |
|
COMI. |
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121 |
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| SECTION 10. |
|
Negative Covenants |
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|
122 |
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| 10.01. |
|
Liens |
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|
122 |
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| 10.02. |
|
Fundamental Changes |
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125 |
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| 10.03. |
|
Dividends |
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126 |
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| 10.04. |
|
Indebtedness |
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|
128 |
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| 10.05. |
|
[Reserved] |
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|
132 |
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| 10.06. |
|
Transactions with Affiliates |
|
|
132 |
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| 10.07. |
|
Fixed Charge Coverage Ratio |
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|
133 |
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| 10.08. |
|
Modifications of Certain Agreements; Limitations on Voluntary Payments, etc |
|
|
133 |
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| 10.09. |
|
Limitation on Certain Restrictions on Subsidiaries |
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|
135 |
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| 10.10. |
|
Limitations on Certain Issuances of Equity Interests |
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|
136 |
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| 10.11. |
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No Additional Accounts, etc |
|
|
136 |
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| 10.12. |
|
Use of Proceeds |
|
|
136 |
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| 10.13. |
|
Fiscal Unity |
|
|
136 |
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| SECTION 11. |
|
Events of Default |
|
|
137 |
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| 11.01. |
|
Payments |
|
|
137 |
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| 11.02. |
|
Representations, etc |
|
|
137 |
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| 11.03. |
|
Covenants |
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|
137 |
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| 11.04. |
|
Default Under Other Agreements |
|
|
137 |
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| 11.05. |
|
Bankruptcy, etc |
|
|
137 |
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| 11.06. |
|
ERISA |
|
|
138 |
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| 11.07. |
|
[Reserved] |
|
|
138 |
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| 11.08. |
|
Security Documents |
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|
138 |
|
iv
|
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| 11.09. |
|
Guaranties |
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|
139 |
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| 11.10. |
|
Judgments |
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|
139 |
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| 11.11. |
|
Change of Control |
|
|
139 |
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| 11.12. |
|
Intercreditor Agreement |
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|
139 |
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| 11.13. |
|
Convertible Notes Maturity Default |
|
|
139 |
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| SECTION 12. |
|
The Administrative Agent and the Collateral Agent |
|
|
140 |
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| 12.01. |
|
Appointment |
|
|
140 |
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| 12.02. |
|
Nature of Duties |
|
|
140 |
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| 12.03. |
|
Lack of Reliance on the Administrative Agent |
|
|
141 |
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| 12.04. |
|
Certain Rights of the Agents |
|
|
141 |
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| 12.05. |
|
Reliance |
|
|
142 |
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| 12.06. |
|
Indemnification |
|
|
142 |
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| 12.07. |
|
The Administrative Agent in its Individual Capacity |
|
|
142 |
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| 12.08. |
|
Holders |
|
|
142 |
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| 12.09. |
|
Resignation by the Administrative Agent |
|
|
142 |
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| 12.10. |
|
Collateral Matters |
|
|
143 |
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| 12.11. |
|
Delivery of Information |
|
|
144 |
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| 12.12. |
|
Dutch Parallel Debt |
|
|
145 |
|
|
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|
| SECTION 13. |
|
Miscellaneous |
|
|
146 |
|
|
|
|
| 13.01. |
|
Payment of Expenses, etc |
|
|
146 |
|
|
|
|
| 13.02. |
|
Right of Setoff |
|
|
147 |
|
|
|
|
| 13.03. |
|
Notices |
|
|
148 |
|
|
|
|
| 13.04. |
|
Benefit of Agreement; Assignments; Participations |
|
|
149 |
|
|
|
|
| 13.05. |
|
No Waiver; Remedies Cumulative |
|
|
151 |
|
|
|
|
| 13.06. |
|
Payments Pro Rata |
|
|
152 |
|
|
|
|
| 13.07. |
|
Calculations; Computations |
|
|
152 |
|
|
|
|
| 13.08. |
|
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL |
|
|
153 |
|
|
|
|
| 13.09. |
|
Counterparts |
|
|
154 |
|
|
|
|
| 13.10. |
|
Effectiveness |
|
|
155 |
|
|
|
|
| 13.11. |
|
Headings Descriptive |
|
|
155 |
|
|
|
|
| 13.12. |
|
Amendment or Waiver; etc |
|
|
155 |
|
|
|
|
| 13.13. |
|
Survival |
|
|
158 |
|
v
|
|
|
|
|
|
|
| 13.14. |
|
Domicile of Loans |
|
|
158 |
|
| 13.15. |
|
Register |
|
|
158 |
|
| 13.16. |
|
Confidentiality |
|
|
158 |
|
| 13.17. |
|
No Fiduciary Duty |
|
|
159 |
|
| 13.18. |
|
Patriot Act |
|
|
160 |
|
| 13.19. |
|
Waiver of Sovereign Immunity |
|
|
160 |
|
| 13.20. |
|
Judgment Currency |
|
|
160 |
|
| 13.21. |
|
OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC |
|
|
161 |
|
| 13.22. |
|
Interest Rate Limitation |
|
|
161 |
|
| SECTION 14. |
|
Nature of Obligations |
|
|
162 |
|
| 14.01. |
|
Nature of Obligations |
|
|
162 |
|
| 14.02. |
|
Independent Obligation |
|
|
162 |
|
| 14.03. |
|
Authorization |
|
|
162 |
|
| 14.04. |
|
Reliance |
|
|
163 |
|
| 14.05. |
|
Contribution; Subrogation |
|
|
163 |
|
| 14.06. |
|
Waiver |
|
|
163 |
|
| 14.07. |
|
Limitation on Dutch Borrower Obligations |
|
|
164 |
|
| 14.08. |
|
Rights and Obligations |
|
|
164 |
|
vi
|
|
|
| SCHEDULES: |
|
|
|
|
| Schedule 1.01(a) |
|
Lenders; Commitments |
| Schedule 13.03 |
|
Notice Addresses |
|
| EXHIBITS: |
|
|
| Exhibit A-1 |
|
Form of Notice of Borrowing |
| Exhibit A-2 |
|
Form of Notice of Conversion/Continuation |
| Exhibit B-1 |
|
Form of U.S. Borrower Revolving Note |
| Exhibit B-2 |
|
Form of Dutch Borrower Revolving Note |
| Exhibit B-3 |
|
Form of U.S. Borrower Swingline Note |
| Exhibit B-4 |
|
Form of Dutch Borrower Swingline Note |
| Exhibit C |
|
Form of Letter of Credit Request |
| Exhibit D-1 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit D-2 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit D-3 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit D-4 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit E-1 |
|
Form of Officer’s Certificate – Company |
| Exhibit E-2 |
|
Form of Officer’s Certificate – Credit Parties |
| Exhibit F |
|
Form of Incremental Commitment Agreement |
| Exhibit G-1 |
|
Form of Dutch Guaranty |
| Exhibit G-2 |
|
Form of U.S. Guaranty |
| Exhibit H |
|
[Reserved] |
| Exhibit I-1 |
|
Form of Dutch Inventory Security Agreement |
| Exhibit I-2 |
|
Form of Dutch Receivables Security Agreement |
| Exhibit I-3 |
|
Form of Dutch General Security Agreement |
| Exhibit I-4 |
|
Form of U.S. Security Agreement |
| Exhibit J |
|
Form of Solvency Certificate |
| Exhibit K |
|
Form of Compliance Certificate |
| Exhibit L |
|
Form of Assignment and Assumption Agreement |
| Exhibit M |
|
Form of Landlord Personal Property Collateral Access Agreement |
| Exhibit N |
|
Form of Joinder Agreement |
| Exhibit O |
|
Form of Borrowing Base Certificate |
ABL CREDIT AGREEMENT, dated as of June 10, 2015, among Tesla Motors, 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 the Dutch Borrowers, together with 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, JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley
Senior Funding Inc. and Bank of America, N.A., as Syndication Agents, and Wells Fargo Bank, National Association, as Documentation Agent. 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):
“2018 Convertible Notes” shall mean the
Company’s 1.50% convertible senior notes due June 1, 2018, issued pursuant to the 2018 Convertible Notes Indenture.
“2018 Convertible Notes Documents” shall mean the 2018 Convertible Notes and the 2018 Convertible Notes Indenture.
“2018 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 First Supplemental Indenture, dated as of May 22, 2013, 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 2018 Convertible Notes in accordance with the terms hereof and thereof.
“2019 Convertible
Notes” shall mean the Company’s 0.25% convertible senior notes due March 1, 2019, issued pursuant to the 2019 Convertible Notes Indenture.
“2019 Convertible Notes Documents” shall mean the 2019 Convertible Notes and the 2019 Convertible Notes Indenture.
“2019 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 Second Supplemental Indenture, dated as of March 5, 2014, 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 2019 Convertible Notes in accordance with the terms hereof and thereof.
“2021 Convertible Notes” shall mean the Company’s 1.25% convertible senior
notes due March 1, 2021, issued pursuant to the 2021 Convertible Notes Indenture.
“2021 Convertible Notes
Documents” shall mean the 2021 Convertible Notes and the 2021 Convertible Notes Indenture.
“2021 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 Third Supplemental Indenture, dated as of March 5, 2014, 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 2021 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).
“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, all cash and Cash
Equivalents subject to a Cash Management Control Agreement, Accounts, Pledged Equipment, Inventory (other than Gigafactory Assets), assets (other than intellectual property) related to 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) and (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).
“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.
2
“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, 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 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.
“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).
3
“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
Documentation Agent.
“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).
“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.
“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.
“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 Bribery Act 2010, 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%.
4
“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.
“Arranger” shall mean each of Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Goldman Sachs Bank USA, Morgan
Stanley Senior Funding Inc. and Bank of America, N.A., in each case in its capacity as a joint lead arranger and bookrunner for the credit facilities hereunder and any successor thereto.
“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) 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.
“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 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.
“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.
“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
5
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) 1⁄2 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 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.
“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 have the meaning provided in the definition of Permitted Ratio Indebtedness.
“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 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(b) shall be considered part of the related Borrowing of LIBOR Loans.
“Borrowing Base” shall mean the
Dutch Borrowing Base, the U.S. Borrowing Base and/or the Total Borrowing Base, as applicable.
“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.
6
“Business Day” shall mean (i) for all purposes other than as covered by
clauses (ii), (iii) and (iv) 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. dollar 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.
“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 any obligations in respect of operating leases that are capitalized as a result of build-to-suit lease accounting rules.
“Cash Credit” shall mean an amount equal to $500,000,000.
“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 Moody’s, (iii) U.S. Dollar-denominated demand deposits or 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 Moody’s 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 Moody’s 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
7
Moody’s 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 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, 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.
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“Chattel Paper” shall mean “chattel paper” (as such term is defined in
Article 9 of the UCC).
“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.
“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 5640 Executive Parkway SE, Grand Rapids, Michigan, and (iv) any other automotive manufacturing facilities established by the Company from time to time and
located in the United States (excluding any Gigafactory).
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“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) $20,000,000 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) $20,000,000 for 30
consecutive days.
“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), 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 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 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 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 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 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 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 acquisition to the extent reimbursed in cash to the Company or any of its 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 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 Subsidiaries determined on a consolidated basis for such period, (xi) gross profit deferred due to lease or sell-through accounting, 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 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.
Notwithstanding the
foregoing, (1) Consolidated EBITDA shall be determined (A) for the Test Period ending with the fiscal quarter ending March 31, 2015, by multiplying Consolidated EBITDA for such fiscal quarter by 4, (B) for the Test Period ending
with the fiscal quarter ending June 30, 2015, by multiplying Consolidated EBITDA for the two fiscal quarters then ended by 2, (C) for the Test Period ending with the fiscal quarter ending September 30, 2015, by multiplying
Consolidated EBITDA for the
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three fiscal quarters then ended by 1.33 and (D) thereafter, as of any date of determination, by determining Consolidated EBITDA for the Test Period most recently ended and
(2) notwithstanding the foregoing and solely for the purposes of calculating the Total Leverage Ratio of the Company for purposes of Sections 10.04(d) and 10.04(n) and solely for any such calculation in respect of any Test Period ended on or
prior to December 31, 2016, Consolidated EBITDA for such Test Period shall be Consolidated EBITDA for the two most recently ended fiscal quarters for which financial statements are available multiplied by 2.
“Consolidated Interest Expense” shall mean, for any period, (i) the total consolidated cash interest expense of the
Company and its 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 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 Subsidiaries determined on a consolidated basis for such period (taken as a single 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 Subsidiary or all or substantially all of the property or assets of such Person are acquired by a Subsidiary.
“Consolidated Total Assets” shall mean, at any time of determination thereof, the aggregate amount of all assets of the
Company and its Subsidiaries as set forth in the most recent consolidated balance sheet of the Company and its 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, bank guarantees, surety bonds and similar obligations 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, bank guarantees, surety bonds, appeal bonds and similar obligations) 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
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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 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 2018 Convertible Notes shall be outstanding on April 1, 2018 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 2018 Convertible Notes then outstanding plus $400,000,000 or (ii) any of the Company’s 2019 Convertible Notes are
outstanding on January 1, 2019 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 2019 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.
“Core Dutch Deposit Account” shall have the meaning provided in Section 5.03(c).
“Core U.S. Deposit Account” shall have the meaning provided in Section 5.03(b).
“Credit Account” shall have the meaning provided in Section 5.03(f).
“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 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.
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“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.
“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(e).
“DB U.S. Account” shall have the meaning provided in Section 5.03(d).
“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.
“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 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, or (d) has become the subject of a Bankruptcy Event.
“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.
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“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 billings 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 (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 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, nor performance of obligations under any Issuer Option
shall constitute a Dividend.
“Documentation Agent” shall mean Wells Fargo Bank, National Association, in its capacity as
documentation agent for the Lenders hereunder and under the other Credit Documents.
“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).
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“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) $20,000,000 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) $20,000,000 for 30 consecutive days.
“Drawing” shall have the
meaning provided in Section 3.05(b).
“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).
“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:
(a) the sum of
(i) 100% of the U.S. Dollar Equivalent of Eligible Dutch Cash and Cash Equivalents,
(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,
(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
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(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. Notwithstanding the foregoing, to the extent that an Acceptable Field Examination in respect of Accounts of the Dutch Borrowers is not provided to the Administrative Agent on or prior to the Effective Date, the advance rate in respect of
Eligible Dutch Accounts shall be 70% until the earlier of (x) receipt of an Acceptable Field Examination in respect thereof and (y) the 90th day after the Effective Date (it being understood that if an Acceptable Field Examination in
respect thereof is not provided on or prior to the 90th day after the Effective Date, after such 90th day the advance rate in respect of Eligible Dutch Accounts shall be 0% until receipt of such Acceptable Field Examination).
“Dutch Civil Code” shall mean the Dutch Civil Code (Burgerlijk Wetboek).
“Dutch Collection Banks” shall have the meaning provided in Section 5.03(c).
“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.
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“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.
“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 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.
“ECP” shall have the meaning set forth in the definition of Excluded
Swap Obligation.
“Effective Date” shall have the meaning provided in Section 13.10.
“Eligible Accounts” shall mean each Account created by any of the 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
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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 15 days past due or (ii) unpaid more than 30 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;
(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 bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional (other than, for the avoidance of doubt, a rental or lease basis 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 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
with respect to a Permitted Bank Financing Account, the only Acceptable Jurisdictions shall be Canada and the Netherlands; provided further 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;
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(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 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 whose total obligations owing to the Borrowers exceed 20% (such percentage, as
applied to a particular Account Debtor, being subject to reduction 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 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, 40% (with such percentage being subject to reduction by the Administrative Agent
in its Permitted Discretion as set forth in the immediately preceding parenthetical).
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(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 billings that are due prior to the
completion of performance by the applicable Borrower of the 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 Dutch Borrower,
as applicable;
(u) Accounts to the extent representing unapplied cash balances; or
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(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, Euros or Cash Equivalents 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.
“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):
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(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 or from the United States to the Netherlands 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:
(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;
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(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;
(i) consists of any gross profit mark-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 or the Netherlands; 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 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;
(q) is out for delivery to the purchaser thereof or has been delivered to a common carrier for delivery to the
purchaser thereof;
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(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;
(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) consists of Gigafactory Assets;
(w) is Inventory in respect of which there is a related Eligible Account; or
(x) 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);
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(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 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.
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“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 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 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,
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(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 related to the manufacturing of
automobiles (as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion and consistent with past practices).
“Energy Storage Agreement” shall mean a battery services contract, a shared revenue and cost avoidance contract, a capacity
contract, demand response contract or similar agreement.
“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, wiring and other electrical devices, conduit, housings, hardware, remote monitoring equipment, connectors, meters, disconnects and other related devices.
“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 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.
“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.
“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.
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“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;
(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).
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“Euro Denominated Loans” shall mean each Loan denominated in Euros at the time
of the incurrence thereof.
“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 Energy Storage Subsidiaries” shall mean (i) those direct or indirect Subsidiaries of the Company (a) in
which the Company owns 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 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 2018 Convertible Notes, the 2019 Convertible Notes and the 2021
Convertible Notes.
“Existing Convertible Notes Documents” shall mean, collectively, the 2018 Convertible Notes
Documents, the 2019 Convertible Notes Documents and the 2021 Convertible Notes Documents.
“Existing Convertible Notes
Indentures” shall mean, collectively, the 2018 Convertible Notes Indenture, the 2019 Convertible Notes Indenture and the 2021 Convertible Notes Indenture.
“Existing Indebtedness” shall have the meaning provided in Section 8.20.
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“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 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 Initial 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.
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“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 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 the Initial Maturity Date; 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.
“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 and (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 (such Liens described in clauses (i), (ii) and
(iii) 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 Subsidiaries during such period minus (iii) the aggregate amount of all cash payments made
by the Company and its 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.
“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 Subsidiaries for such period (including the principal component of all obligations in respect of all Capitalized Lease Obligations, but excluding (x) the payment or Net
Share Settlement of any Permitted Convertible Notes at their respective final maturity date or upon conversion thereof and (y) 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
31
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)), plus (b) Consolidated Interest Expense of the Company and its Subsidiaries for such period payable in cash, plus (c) the Net RVG Repurchase Amount for such period.
“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 45500 Fremont Blvd., Fremont, California 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.
“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 13.07(a).
“Gigafactory” shall mean the Company’s Gigafactory located at Electric Avenue, McCarran,
Nevada and any other gigafactory established from time to time by the Company and designated by the Company as a “Gigafactory” in writing to the Administrative Agent, in each case including related facilities to the extent designated as a
“Gigafactory-related facility” in writing to the Administrative Agent.
“Gigafactory Assets” shall mean
Inventory of the Company or any of its Subsidiaries manufactured, and located, at a Gigafactory and Equipment of the Company or any of its Subsidiaries located at a Gigafactory.
32
“Governmental Authority” shall mean the government of the United States, the
Netherlands, 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.
“Guaranty” shall mean the U.S. Guaranty and the Dutch 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 either case, other than a Borrower) (x) that has not guaranteed any other Indebtedness of any Borrower, (y) whose consolidated total assets (as set forth in the most recent consolidated
balance sheet of the Company and its 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 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 Subsidiaries (as set forth in the most recent income statement of the Company and its 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(e).
“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 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).
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“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 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
34
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. 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).
“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 10, 2020.
“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.
“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) 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.
35
“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 Moody’s 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).
“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) JPMorgan
Chase Bank, N.A., (iii) Morgan Stanley Senior Funding Inc., (iv) Bank of America, N.A. and (v) any other Lender reasonably acceptable to the Administrative Agent and the Company which agrees to issue Letters of Credit hereunder;
provided that, if any Extension is effected in accordance with Section 2.19, then on the occurrence of the Initial Maturity Date, each Issuing Lender shall have the right to resign as such on, or on any date within 20 Business Days
after, the Initial Maturity Date, 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).
“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 13.20.
“Judgment Currency Conversion Date” shall have the meaning provided in Section 13.20.
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“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).
“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 13.04(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).
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“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) 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) as of the Specified Time on the Quotation Day for such Interest Period; provided that 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 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.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment for security, deposit arrangement, encumbrance, lien
(statutory or other), 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 $250,000,000.
“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.
“Mandatory Borrowing” shall have the meaning provided in
Section 2.01(c).
“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 $60,000,000 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
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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 (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 $60,000,000 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 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 Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP) constitute 5.0% or more of the consolidated total revenues of the Company and its Subsidiaries (as set
forth in the most recent income statement of the Company and its 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 13.22.
“Maximum Swingline Amount” shall mean $40,000,000.
“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 Moody’s Investors Service, Inc.
“Mortgage” shall mean any deed of trust, mortgage, deed to secure debt, or other document creating a Lien on Real Property.
“Mortgage Policy” shall mean a Lender’s title insurance policy (Form 1992).
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“Mortgaged Property” shall mean any Real Property owned or leased by any Credit
Party which is encumbered (or required to be encumbered) by a Mortgage 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 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 consisting of Permitted Company Stock, cash or a combination of cash and Permitted Company Stock.
“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, 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 5022 Gate Parkway, Suite 100, Jacksonville, FL
32256 (or such other office or person as the Administrative Agent may hereafter designate in writing as such to the other parties hereto).
“Obligation Currency” shall have the meaning provided in Section 13.20.
“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.
“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.
“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 under, or otherwise with respect to, any Credit Document, except any such
taxes that are imposed pursuant to an assignment made under Section 13.04(b).
“Participant” shall have the meaning
provided in Section 3.04(a).
“Participant Register” shall have the meaning provided in Section 13.04(e).
“Patriot Act” shall have the meaning provided in Section 13.18.
“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
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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 5022 Gate Parkway, Suite 100, Jacksonville, FL
32256 (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.
“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).
“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.
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“Permitted Bank Financing” shall mean a transaction in which (i) a bank
finances the purchase of a motor vehicle by a customer from a Borrower, (ii) such bank becomes the Account Debtor in respect of the relevant Account (such Account, a “Permitted Bank Financing Account”) and (iii) such bank
has no recourse to the Company or any of its Subsidiaries if the customer fails to pay the bank 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 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 and any Additional Convertible Notes Documents.
“Permitted Convertible Notes Indentures” shall mean, collectively, the 2018 Convertible Notes Indenture, the 2019 Convertible
Notes Indenture, the 2021 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 or reasonably could be expected to adversely affect in any material respect the value of any Eligible Accounts, Eligible Cash and Cash Equivalents, Eligible Inventory or Eligible Machinery
and Equipment, the enforceability or priority of the Collateral Agent’s Liens thereon or the amount which any Agent, the Lenders or any Issuing Lender would be likely to receive (after giving consideration to delays in payment and costs of
enforcement) in the liquidation of such Eligible Accounts, Eligible Cash and Cash Equivalents, Eligible Inventory or Eligible Machinery and Equipment or (b) will or reasonably could be expected to result in any collateral report or financial
information delivered to the Administrative Agent by any Person on behalf of any Borrower being incomplete, inaccurate or misleading in any material respect. In exercising such judgment, the Administrative Agent may consider, without duplication,
such factors already included in or tested by the definitions of Eligible Accounts, Eligible Cash and Cash Equivalents, Eligible Inventory or Eligible Machinery and Equipment, as well as any of the following: (i) changes after the Effective
Date in any material respect in demand for, pricing of, or product mix of Inventory; (ii) changes after the Effective Date in any material respect in any concentration of risk with respect to Accounts; and (iii) any other factors arising
after the Effective Date that change in any material respect the credit risk of lending to the Borrowers on the security of the Eligible Accounts, Eligible Cash and Cash Equivalents, Eligible Inventory or Eligible Machinery and Equipment.
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“Permitted Encumbrance” shall mean, with respect to any Mortgaged Property, such
exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto, all of which exceptions must be acceptable to the Administrative Agent in its reasonable discretion.
“Permitted Foreign Account Debtor” shall mean each of the Account Debtors listed on Schedule 1.01(b) to the Disclosure
Letter, which Schedule may be updated from time to time in the Permitted Discretion of the Administrative Agent with written notice to the Company.
“Permitted Holder” shall mean each of Elon Musk and his estate, spouse, siblings, ancestors, heirs, and lineal descendants,
and any spouses of such Persons, the legal representatives of any of the foregoing, and any bona fide trust of which one or more the foregoing are the principal beneficiaries or grantors, or any other Person that is controlled by any of the
foregoing.
“Permitted Liens” shall have the meaning provided in Section 10.01.
“Permitted Non-Credit Party Indebtedness” has the meaning provided in Section 10.04(o).
“Permitted Ratio Indebtedness” shall mean any Indebtedness incurred by the Company and its Subsidiaries if immediately after
giving effect to the incurrence of such Indebtedness on the date of such incurrence (a) the Company is in compliance, on a Pro Forma Basis, with a Total Leverage Ratio of less than 6.00:1.00 for the respective Calculation Period (any Permitted
Ratio Indebtedness incurred in accordance with this clause (a), “Ratio-Related Permitted Indebtedness”) or (b) the aggregate outstanding principal amount of all Permitted Ratio Indebtedness that is not Ratio-Related
Indebtedness (any Permitted Ratio Indebtedness incurred in accordance with this clause (b), “Basket-Related Permitted Indebtedness”) does not exceed $2,000,000,000.
“Permitted Securitization Facility” shall mean a financing facility established by a Securitization Subsidiary and one or
more of the Company or its Subsidiaries, whereby the Company or its Subsidiaries shall have sold or transferred accounts receivable, payment intangibles, chattel paper, payments, rights to future lease payments or residuals or similar rights to
payment or Energy Storage Assets to a Securitization Subsidiary; provided that (a) except as permitted in respect of indemnities by clause (b) of this proviso, no portion of the Indebtedness or any other obligation (contingent or
otherwise) under such Permitted Securitization Facility shall be guaranteed by the Company or any of its Subsidiaries (other than a Securitization Subsidiary), (b) there shall be no recourse or obligation to the Company or any of its
Subsidiaries (other than a Securitization Subsidiary) whatsoever other than pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with such Permitted Securitization Facility
that in the reasonable opinion of the Company are customary for securitization transactions and (c) none of the Company nor any of its Subsidiaries (other than the Securitization Subsidiary) shall have provided, either directly or indirectly,
any other credit support of any kind in connection with such Permitted Securitization Facility, other than as set forth in clause (b) of this definition.
“Person” shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company,
trust or other enterprise or any Governmental Authority.
“Physical Inventory Adjustment Reserve” shall mean a reserve
established by the Administrative Agent in respect of discrepancies that arise pertaining to Inventory quantities on hand between a Credit Party’s perpetual accounting system and the results of the most-recent physical inventory count at the
Fremont Factory.
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“Plan” shall mean an “employee benefit plan” as defined in
Section 3 of ERISA (other than a Multiemployer Plan) maintained or contributed to by the Company, any of its Subsidiaries, or any ERISA Affiliate or to which the Borrower, any of its Subsidiaries or an ERISA Affiliate has or may have an
obligation to contribute, and each such plan is or has been subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA for the five-year period immediately following the latest date on which the
Company, any of its Subsidiaries or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under Section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute
to, or otherwise to have liability with respect to) such plan.
“Pledged Equipment” shall mean all Equipment which is
subject to a First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors.
“Preferred
Equity”, as applied to the Equity Interests of any Person, shall mean Equity Interests of such Person (other than common Equity Interests of such Person) of any class or classes (however designed) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Equity Interests of any other class of such Person, and shall include any Qualified Preferred Stock.
“Prime Lending Rate” shall mean the rate which the Administrative Agent announces from time to time as its prime lending
rate, the Prime Lending Rate to change when and as such announced prime lending rate changes. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by the
Administrative Agent, which may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.
“Professional Lender” shall mean any person who does not form part of the public within the meaning of the Capital
Requirements Regulation (EU) No. 575/2013.
“Pro Forma Basis” shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation thereof after giving effect on a pro forma basis to (w) the incurrence of any Indebtedness (other than revolving Indebtedness, except to the extent same is incurred to
refinance or repay other outstanding Indebtedness, to finance an Acquisition or other Investment or to finance a Dividend) after the first day of the relevant Calculation Period or Test Period, as the case may be, as if such Indebtedness had been
incurred (and the proceeds thereof applied) on the first day of such Test Period or Calculation Period, as the case may be, (x) the permanent repayment of any Indebtedness (other than revolving Indebtedness, except to the extent accompanied by
a corresponding permanent commitment reduction) after the first day of the relevant Test Period or Calculation Period, as the case may be, as if such Indebtedness had been retired or repaid on the first day of such Test Period or Calculation Period,
as the case may be, (y) any Material Acquisition then being consummated as well as any other Material Acquisition if consummated after the first day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the
date of the respective Material Acquisition and (z) any Material Disposition then being consummated as well as any other Material Disposition if consummated after the first day of the relevant Test Period or Calculation Period, as the case may
be, and on or prior to the date of the respective Material Disposition, as the case may be, then being effected, with the following rules to apply in connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except to the extent same is incurred to refinance or repay
other outstanding Indebtedness, to finance Acquisitions or other Investments or to finance a Dividend) incurred or issued after the first day of the relevant Test Period or Calculation Period (whether incurred to finance an Acquisition, to refinance
or repay
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Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof applied) on the first day of such Test Period or Calculation Period, as the case may be, and
remain outstanding through the date of determination and (y) (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) permanently retired or redeemed after the first day of the
relevant Test Period or Calculation Period, as the case may be, shall be deemed to have been retired or redeemed on the first day of such Test Period or Calculation Period, as the case may be, and remain retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall be deemed to have borne
interest at (x) the rate applicable thereto, in the case of fixed rate indebtedness, or (y) the rates which would have been applicable thereto during the respective period when same was deemed outstanding, in the case of floating rate
Indebtedness (although interest expense with respect to any Indebtedness for periods while same was actually outstanding during the respective period shall be calculated using the actual rates applicable thereto while same was actually outstanding);
provided that all Indebtedness (whether actually outstanding or deemed outstanding) bearing interest at a floating rate of interest shall be tested on the basis of the rates applicable at the time the determination is made pursuant to said
provisions;
(iii) in making any determination of Consolidated EBITDA on a Pro Forma Basis, pro forma effect shall be given
to any Material Acquisition if effected during the respective Calculation Period or Test Period as if same had occurred on the first day of the respective Calculation Period or Test Period, as the case may be, and taking into account, in the case of
any Material Acquisition, factually supportable and identifiable cost savings and expenses which would otherwise be accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the Securities Act, as if such cost savings or
expenses were realized on the first day of the respective period; and
(iv) in making any determination of Consolidated
EBITDA on a Pro Forma Basis, pro forma effect shall be given to any Material Disposition if effected during the respective Calculation Period or Test Period as if same had occurred on the first day of the respective Calculation Period or Test
Period, as the case may be.
“Project” shall mean an Energy Storage System together with all associated real property
rights, rights under the applicable Host Customer Agreement, and all other related rights to the extent applicable thereto, including without limitation, all parts and manufacturers’ warranties and rights to access customer data.
“Qualified Preferred Stock” shall mean any Preferred Equity of the Company so long as the terms of any such Preferred Equity
(and the terms of any Equity Interests into which such Preferred Equity is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof) (x) do not contain any mandatory put, redemption, repayment,
sinking fund or other similar provision requiring such action prior to the date that is 91 days after the Initial Maturity Date (other than (i) upon payment in full of the Obligations (other than indemnification and other contingent obligations
not yet due and owing) or (ii) upon a “change in control” or asset sale or casualty or condemnation event; provided that any payment required pursuant to this clause (ii) is subordinated in right of payment to the
Obligations on terms reasonably satisfactory to the Administrative Agent), (y) do not require the cash payment of dividends or distributions that would otherwise be prohibited by the terms of this Agreement and (z) do not contain any
covenants (other than periodic reporting requirements) that are more restrictive, taken as a whole, than the covenants contained in this Agreement (as reasonably determined by the Company in good faith).
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“Quarterly Payment Date” shall mean the last Business Day of each March, June,
September and December occurring after the Effective Date.
“Quotation Day” shall mean, in respect of the determination
of the LIBO Rate for any Interest Period for any LIBOR Loan that is (i) a U.S. Dollar Denominated Revolving Loan or Foreign Currency Denominated Loan, the day on which quotations would ordinarily be given by prime banks in the London
interbank market for deposits in such currency for delivery on the first day of such Interest Period for such Interest Period or (ii) a Euro Denominated Loan, the day on which quotations would ordinarily be given by prime banks in the Brussels
interbank market for deposits in Euros for delivery on the first day of such Interest Period for such Interest Period ; provided, that in either case if quotations would ordinarily be given on more than one date, the Quotation Day for such
Interest Period shall be the last of such dates. On the date hereof, the Quotation Day in respect of any Interest Period for Dollars or Euros is customarily the day which is two Business Days prior to the first day of such Interest Period.
“RCRA” shall have the meaning provided in Section 8.17(c).
“Ratio-Related Permitted Indebtedness” shall have the meaning provided in the definition of Permitted Ratio Indebtedness.
“Real Property” of any Person shall mean all the right, title and interest of such Person in and to land (including any
improvements and fixtures thereon), including Leaseholds.
“Recovery Event” shall mean any event that gives rise to the
receipt by the Company or any of its Subsidiaries of any cash insurance proceeds or condemnation awards payable (i) by reason of theft, loss, physical destruction, damage, taking or any other similar event with respect to any property or assets
of the Company or any of its Subsidiaries or (ii) under any policy of insurance maintained by any of them.
“Reduced
Availability Period” shall mean any period (a) commencing on the date on which (i) Designated Cash is less than the Liquidity Threshold and (ii) the Fixed Charge Coverage Ratio for the most recently ended Test Period for
which financial statements are available is less than 1.00:1.00 and (b) ending on the first date thereafter on which (i) Designated Cash is equal to or greater than the Liquidity Threshold or (ii) the Fixed Charge Coverage Ratio for
the most recently ended Test Period for which financial statements are available is equal to or greater than 1.00:1.00.
“Register” shall have the meaning provided in Section 13.15.
“Regulation D” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion
thereof establishing reserve requirements.
“Regulation T” shall mean Regulation T of the Board as from time to time in
effect and any successor to all or a portion thereof.
“Regulation U” shall mean Regulation U of the Board as from time
to time in effect and any successor to all or a portion thereof.
“Regulation X” shall mean Regulation X of the Board as
from time to time in effect and any successor to all or a portion thereof.
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“Release” shall mean actively or passively disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like, into or upon any land or water or air, or otherwise entering into the environment.
“Rent Reserve” shall mean a reserve established by the Administrative Agent in respect of rent payments made by a Borrower
for each location at which Eligible Inventory or Eligible Machinery and Equipment is located (other than any such locations owned by a Borrower), unless such location is subject to a Landlord Personal Property Collateral Access Agreement (as
reported to the Administrative Agent by the Company from time to time as requested by the Administrative Agent), as adjusted from time to time by the Administrative Agent in its Permitted Discretion provided that a Rent Reserve established in
respect of any location shall not exceed three months’ rent for such location.
“Replaced Lender” shall have the
meaning provided in Section 2.13(a).
“Replacement Lender” shall have the meaning provided in Section 2.13(a).
“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to a Plan other than
those events as to which the 30-day notice period is waived under applicable regulations.
“Required Lenders” shall mean,
at any time, Non-Defaulting Lenders the sum of whose outstanding Revolving Loan Commitments at such time (or, after the termination thereof, outstanding Revolving Loans (for this purpose, using the U.S. Dollar Equivalent of amounts denominated
in Euros or any Acceptable Foreign Currency) and RL Percentages of (x) outstanding Swingline Loans at such time and (y) 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) represents at least a majority of the sum of the Total Revolving Loan Commitment in effect at such time less the Revolving Loan Commitments of all Defaulting Lenders at such time (or, after the
termination thereof, the sum of the total outstanding Revolving Loans (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency) of Non-Defaulting Lenders and the aggregate RL
Percentages of all Non-Defaulting Lenders of the total outstanding Swingline Loans and 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).
“Reserves” shall mean reserves, if any, established by the Administrative Agent from time to time hereunder in
its Permitted Discretion against the applicable Borrowing Base, including (i) Rent Reserves, (ii) Dutch Priority Payables Reserve, (iii) Dutch Retention of Title Reserve, (iv) Dilution Reserves, (v) the Customer Deposit
Reserve, (vi) reserves for Foreign Taxes, (vii) reserves for Sales Taxes, (viii) the Vendor Liabilities Reserve, (ix) reserves for Secured Hedging Agreements, (x) Cash Management Reserves, (xi) reserves for customs
charges and shipping charges related to any Inventory in transit and (xii) such other events, conditions or contingencies as to which the Administrative Agent, in its Permitted Discretion, determines reserves should be established from time to
time hereunder; provided, however, that the Administrative Agent may not implement reserves with respect to matters which are already specifically reflected as ineligible cash or Cash Equivalents, Accounts, Inventory or Equipment,
Inventory Reserves or criteria deducted in computing the Net Orderly Liquidation Value of Eligible Inventory or the Net Orderly Liquidation Value of Eligible Machinery and Equipment. The amount of any Reserves established by the Administrative Agent
shall have a reasonable relationship to the event, condition or other matter which is the basis for such Reserves as determined by the Administrative Agent in its Permitted Discretion. The applicable Reserve shall be promptly adjusted or released at
such time when the event, condition or circumstance that is the basis for such Reserve ceases to exist or is otherwise addressed, in each case, to the reasonable satisfaction of the Administrative Agent.
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The Administrative Agent shall notify the Company in writing at or before the time any such Reserve in a material
amount is to be established or increased, but a non-willful failure of the Administrative Agent to so notify the Company shall not be a breach of this Agreement and shall not cause such establishment or increase of a Reserve to be ineffective.
“Responsible Officer” shall mean the chief executive officer, the president, the chief operating officer, the chief financial
officer, the treasurer or any other senior or executive officer of a Person.
“Restricted” shall mean, when referring to
cash or Cash Equivalents of the Company or any of its Subsidiaries, that such cash or Cash Equivalents (i) appears (or would be required to appear) as “restricted” on a consolidated balance sheet of the Company or of any such
Subsidiary (unless such appearance is related to the Credit Documents or Liens created thereunder), (ii) are subject to any Lien in favor of any Person other than (x) the Collateral Agent for the benefit of the Secured Creditors and
(y) Permitted Liens under Sections 10.01(a), (p) and (s) or (iii) are not otherwise generally available for use by the Company or such Subsidiary.
“Returns” shall have the meaning provided in Section 8.09.
“Revolving Loan” shall have the meaning provided in Section 2.01(a).
“Revolving Loan Commitment” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule
1.01(a) directly below the column entitled “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. In addition, the Revolving Loan Commitment of each Lender shall include any
Extended Revolving Loan Commitment of such Lender.
“Revolving Note” shall have the meaning provided in
Section 2.05.
“RL Percentage” of any Lender at any time shall mean a fraction (expressed as a percentage) the
numerator of which is the Revolving Loan Commitment of such Lender at such time and the denominator of which is the Total Revolving Loan Commitment at such time, provided that if the RL Percentage of any Lender is to be determined after the
Total Revolving Loan Commitment has been terminated, then the RL Percentages of such Lender shall be determined immediately prior (and without giving effect) to such termination.
“S&P” shall mean Standard & Poor’s Financial Services LLC.
“Sales Taxes” shall mean any amounts which are due and owing to any Governmental Authority of the United States or any state
thereof in respect of sales taxes to the extent such amounts are collected or required to be collected by any Borrower from such Borrower’s customer to be remitted to such Governmental Authority.
“Sanctioned Country” shall mean a country or territory which is itself the subject or target of comprehensive countrywide or
territory-wide Sanctions (as of the Effective Date, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria).
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“Sanctioned Person” shall mean (a) any Person that is the target or subject
of Sanctions or listed in any Sanctions-related list of designated Persons maintained by the U.S. government (including the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State) or by the United
Nations Security Council, the European Union or any European Union member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the
foregoing clauses (a) or (b).
“Sanctions” shall mean economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations
Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant Governmental Authority.
“SEC” shall mean the U.S. Securities and Exchange Commission or any successor thereto.
“Second Priority” shall mean, with respect to any Lien purported to be created on any Collateral pursuant to the Security
Documents, that such Lien is prior in right to any other Lien thereon, other than (x) Liens permitted pursuant to Section 10.01(s) and (y) First Priority Priming Liens; provided that in no event shall any such First Priority
Priming Liens be permitted (on a consensual basis) to be junior and subordinate to any Permitted Liens as described in clause (x) above and senior in priority to the relevant Liens created pursuant to the Security Documents.
“Secured Creditors” shall have the meaning provided in the respective Security Documents.
“Secured Hedging Agreement” shall mean each Interest Rate Protection Agreement and/or Other Hedging Agreements entered into
with a Lender Counterparty, provided that (i) such Interest Rate Protection Agreement and/or Other Hedging Agreement expressly states that it constitutes a “Secured Hedging Agreement” for purposes of the Credit Agreement and
the other Credit Documents and (ii) the Company and the other parties thereto shall have delivered to the Collateral Agent a written notice specifying that such Interest Rate Protection Agreement and/or Other Hedging Agreement constitutes a
“Secured Hedging Agreement” for purposes of the Credit Agreement and the other Credit Documents; provided no such notice shall be required in respect of any Interest Rate Protection Agreement or Other Hedging Agreement entered into
with Deutsche Bank AG New York Branch or any of its Affiliates.
“Securities Act” shall mean the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
“Securitization Related Assets” shall mean,
collectively, accounts receivable, payment intangibles, chattel paper, payments, rights to future lease payments or residuals or similar rights to payment, in each case relating to receivables subject to the Permitted Securitization Facility,
including interests in merchandise or goods, the sale or lease of which gave rise to such receivables, related contractual rights, guarantees, insurance proceeds, collections and proceeds of all of the foregoing and any Equity Interests in a
Securitization Subsidiary or Excluded Energy Storage Subsidiary.
“Securitization Subsidiary” shall mean a Wholly-Owned
Subsidiary of the Company that is a special purpose vehicle that has been established for the sole purpose of facilitating a financing under a Permitted Securitization Facility and that shall not engage in any activities other than in connection
with the Permitted Securitization Facility. For the avoidance of doubt, an Excluded Energy Storage Subsidiary may be a Securitization Subsidiary.
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“Security Agreement” shall mean and include each of the U.S. Security Agreement
and the Dutch Security Agreements.
“Security Agreement Collateral” shall mean all “Collateral” as defined in
any Security Agreement (or “Inventory” as defined in the Dutch Inventory Security Agreement).
“Security
Documents” shall mean and include each Security Agreement and, after the execution and delivery thereof, each Additional Security Document, each Mortgage, each Incremental Security Document and any other related document, agreement or grant
pursuant to which the Company or any of its Subsidiaries grants, perfects or continues a security interest in favor of the Collateral Agent for the benefit of the Secured Creditors (including any supplements, joinders or similar agreements to the
U.S. Security Agreement and any of the Dutch Security Agreements to add an additional Credit Party as a grantor or pledgor thereunder, and any agreement similar to a Dutch Security Agreement entered into by a Dutch Credit Party pursuant to which
such Dutch Credit Party grants, perfects or continues a security interest in favor of the Collateral Agent for the benefit of the Secured Creditors); provided that any cash collateral or other agreements entered into pursuant to the Letter of
Credit Back-Stop Arrangements shall constitute “Security Documents” solely for purposes of (x) Sections 8.03 and 10.01(d) and (y) the term “Credit Documents” as used in Sections 9.12(d), 10.04(a) and 13.01.
“Specified Account Debtor” shall mean each of the Account Debtors listed on Schedule 1.01(c) to the Disclosure Letter, which
Schedule may be updated from time to time in the Permitted Discretion of the Administrative Agent with written notice to the Company.
“Specified Time” shall mean 11:00 a.m., London time.
“Stated Amount” of each Letter of Credit shall mean, at any time, the maximum amount available to be drawn thereunder in each
case determined (x) as if any future automatic increases in the maximum amount available that are provided for in any such Letter of Credit had in fact occurred at such time and (y) without regard to whether any conditions to drawing could
then be met but after giving effect to all previous drawings made thereunder; provided that the “Stated Amount” of each Letter of Credit denominated in a currency other than U.S. Dollars shall be, on any date of calculation, the
U.S. Dollar Equivalent of the maximum amount available to be drawn in the respective currency thereunder (determined without regard to whether any conditions to drawing could then be met).
“Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person or (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at the time. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
“Subsidiary Guarantor” shall mean each U.S. Subsidiary Guarantor and each Dutch Subsidiary
Guarantor.
“Supermajority Lenders” shall mean those Non-Defaulting Lenders which would constitute the Required Lenders
under, and as defined in, this Agreement, if the reference to “a majority” contained therein were changed to “66 2⁄3%”.
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“Swap Obligation” shall mean, with respect to any Person, any Interest Rate
Protection Agreement or Other Hedging Agreement that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Expiry Date” shall mean that date which is five Business Days prior to the Final Maturity Date.
“Swingline Lender” shall mean the Administrative Agent, in its capacity as Swingline Lender hereunder.
“Swingline Loan” shall have the meaning provided in Section 2.01(b).
“Swingline Loan Exposure” shall mean, at any time, the aggregate principal amount of all Swingline Loans outstanding at such
time. The Swingline Loan Exposure of any Lender at any time shall be its RL Percentage of the aggregate Swingline Loan Exposure at such time.
“Swingline Note” shall have the meaning provided in Section 2.05(a).
“Syndication Agent” shall mean JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc. and Bank
of America, N.A., in each case in its capacity as a syndication agent for the Lenders hereunder and under the other Credit Documents.
“TARGET Day” shall mean any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET)
payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euros.
“Taxes” shall have the meaning provided in Section 5.04(a).
“Tesla B.V.” shall have the meaning provided in the first paragraph of this Agreement.
“Test Period” shall mean each period of four consecutive fiscal quarters of the Company then last ended, in each case taken
as one accounting period.
“Threshold Amount” shall mean $150,000,000.
“Total Borrowing Base” shall mean, as of any date of determination, the sum of the Dutch Borrowing Base and the U.S.
Borrowing Base, in each case, at such date.
“Total Leverage Ratio” shall mean, on any date of determination, the ratio
of (x) Consolidated Total Indebtedness on such date to (y) Consolidated EBITDA for the Test Period most recently ended on or prior to such date; provided that (i) for purposes of any calculation of the Total Leverage Ratio
pursuant to this Agreement, Consolidated EBITDA shall be determined on a Pro Forma Basis in accordance with the requirements of the definition of “Pro Forma Basis” contained herein.
“Total Revolving Loan Commitment” shall mean, at any time, the sum of the Revolving Loan Commitments of each of the Lenders
at such time. As of the Effective Date, the Total Revolving Loan Commitment is $500,000,000.
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“Transaction” shall mean, collectively, the execution and delivery by each
Credit Party of the Credit Documents to which it is a party on the Effective Date, the incurrence of Loans (if any) on the Effective Date and the use of proceeds thereof.
“Type” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base
Rate Loan or a LIBOR Loan.
“UCC” shall mean the Uniform Commercial Code as from time to time in effect in the relevant
jurisdiction.
“Unfinanced Capital Expenditures” shall mean, for any period, Capital Expenditures made by the Company and
its Subsidiaries during such period other than Capital Expenditures to the extent financed with the proceeds of any sale or issuance of Equity Interests, the proceeds of any asset sale (other than the sale of inventory in the ordinary course of
business), the proceeds of any Recovery Event or the proceeds of any incurrence of Indebtedness (other than the incurrence of any Loans); provided that Unfinanced Capital Expenditures shall be reduced (but in no event below zero) on a
dollar-for-dollar basis by the portion (if any) of the Cash Credit not used to reduce Unfinanced Capital Expenditures for a prior period.
“Unfunded Pension Liability” of any Plan shall mean the amount, if any, by which the value of the accumulated plan benefits
under such Plan determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the Fair Market Value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).
“United States”
and “U.S.” shall each mean the United States of America.
“Unpaid Drawing” shall have the meaning
provided in Section 3.05(a).
“Unrestricted” shall mean, when referring to cash or Cash Equivalents of the Company
or any of its Subsidiaries, that such cash or Cash Equivalents are not Restricted.
“Unutilized Revolving Loan
Commitment” shall mean, with respect to any Lender at any time, such Lender’s Revolving Loan Commitment at such time less the sum of (a) the aggregate outstanding principal amount of all Revolving Loans (taking the
U.S. Dollar Equivalent of any such Revolving Loans denominated in Euros or any Acceptable Foreign Currency) made by such Lender at such time and (b) such Lender’s RL Percentage of the 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. For the avoidance of doubt and solely for purposes of calculating the “Unutilized Revolving Loan Commitment”, the
Revolving Loan Commitment of any Lender shall not be reduced by outstanding Swingline Loans.
“Upper Strike Warrant”
shall mean any hedging agreement, entered into by the Company in connection with the issuance of Permitted Convertible Notes, pursuant to which the Company issues to the counterparty thereto warrants to acquire shares of Permitted Company Stock
(whether such warrant is settled in shares, cash or a combination thereof).
“U.S. Borrower” and “U.S.
Borrowers” shall have the meaning provided in the first paragraph of this Agreement.
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“U.S. Borrower Loans” shall mean each U.S. Borrower Revolving Loan and each U.S.
Borrower Swingline Loan.
“U.S. Borrower Obligations” shall mean all Obligations owing to the Administrative Agent, the
Collateral Agent, any Issuing Lender or any Lender by any U.S. Borrower.
“U.S. Borrower Revolving Loan” shall have the
meaning provided in Section 2.01(a).
“U.S. Borrower Revolving Note” shall have the meaning provided in
Section 2.05(a).
“U.S. Borrower Swingline Loan” shall have the meaning provided in Section 2.01(b).
“U.S. Borrower Swingline Note” shall have the meaning provided in Section 2.05(a).
“U.S. 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:
(a) the sum of
(i) 100% of the U.S. Dollar Equivalent of Eligible U.S. Cash and Cash Equivalents,
(ii) 85% of the Eligible U.S. Accounts,
(iii) 85% of the then extant Net Orderly Liquidation Value of Eligible U.S. Vendor In-Transit Inventory,
(iv) 85% of the then extant Net Orderly Liquidation Value of Eligible U.S. Raw Materials Inventory,
(v) 85% of the then extant Net Orderly Liquidation Value of Eligible U.S. WIP Inventory,
(vi) 85% of the then extant Net Orderly Liquidation Value of Eligible U.S. Service Parts Inventory,
(vii) 85% of the then extant Net Orderly Liquidation Value of Eligible U.S. Finished Goods Inventory,
(viii) 85% of the then extant Net Orderly Liquidation Value of Eligible U.S. In-Transit Inventory and
(ix) 85% of the Applicable Value of Eligible Machinery and Equipment, minus
(b) the sum (without duplication) of any Reserves then established by the Administrative Agent with respect to the U.S.
Borrowing Base;
provided, however, that (i) Eligible U.S. Inventory shall only be included in the U.S. Borrowing Base to the extent
that the Administrative Agent shall have received an Acceptable Appraisal in respect of such Eligible U.S. Inventory, (ii) Eligible Equipment and Machinery shall only be included in the U.S. Borrowing Base to the extent that the Administrative
Agent shall have received an Acceptable Appraisal
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in respect of such Eligible Equipment and Machinery (provided that no appraisal shall be required in respect of Equipment for which the consideration therefor was less than or equal to
$1,500,000 and, at the Permitted Discretion of the Administrative Agent no appraisal shall be required in respect of any Equipment for which the consideration therefor was in excess of $1,500,000, in each case to the extent there is an Acceptable
Existing Appraisal in respect thereof, in which case the Applicable Value thereof shall be based on a “desktop appraisal” (it being understood that once there is no longer an Acceptable Existing Appraisal in respect of such Equipment, the
Applicable Value thereof shall be determined pursuant to the definition of “Applicable Value”, provided that to the extent the Applicable Value cannot be determined pursuant to clause (a) of such definition, then for purposes
of determining the “Amortized Value” of such Equipment, the most recent Acceptable Appraisal shall be deemed to be the appraisal that was the most recent Acceptable Existing Appraisal in respect of such Equipment)), (iii) 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 and (iv) the aggregate amount included in the U.S. Borrowing Base pursuant to clause
(a)(ix) above shall not exceed 30% of the Total Borrowing Base. The Administrative Agent shall have the right (but not the 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. Notwithstanding the foregoing, to the extent that an Acceptable Field Examination in respect of Accounts of the U.S. Borrowers is not provided to the Administrative Agent on or prior to the Effective Date, the
advance rate in respect of Eligible U.S. Accounts shall be 70% until the earlier of (x) receipt of an Acceptable Field Examination in respect thereof and (y) the 90th day after the Effective Date (it being understood that if an Acceptable
Field Examination in respect thereof is not provided on or prior to the 90th day after the Effective Date, after such 90th day the advance rate in respect of Eligible U.S. Accounts shall be 0% until receipt of an Acceptable Field Examination).
“U.S. Collection Banks” shall have the meaning provided in Section 5.03(b).
“U.S. Corresponding Debt” shall mean the Obligations of a U.S. Credit Party under or in connection with the Credit Documents.
“U.S. Credit Parties” shall mean the Company, each other U.S. Borrower and each U.S. Subsidiary Guarantor.
“U.S. Dollar Denominated Revolving Loans” shall mean each Revolving Loan denominated in U.S. Dollars at the time of the
incurrence thereof.
“U.S. Dollar Equivalent” of an amount denominated in a currency other than U.S. Dollars shall mean,
at any time for the determination thereof, the amount of U.S. Dollars which could be purchased with the amount of such currency involved in such computation at the spot exchange rate therefor as quoted by the Administrative Agent as of 11:00 A.M.
(New York City time) on the date two Business Days prior to the date of any determination thereof (or, in the case of amount denominated in Sterling on the date of any determination thereof), for purchase on such date (or on the date of the
respective unreimbursed payment under a Letter of Credit denominated in a currency other than U.S. Dollars as provided in Sections 3.04(c) and 3.05(a), as the case may be); provided that for purposes of (x) determining compliance with
Sections 2.01(a), 2.01(b), 2.01(e), 3.02, 5.02(a), 7.01 and 7.03 and (y) calculating Fees pursuant to Section 4.01 (except Fees which are expressly required to be paid in a currency other than U.S. Dollars pursuant to Section 4.01),
the U.S. Dollar Equivalent of any amounts denominated in a currency other than U.S. Dollars shall be revalued on the date of each Credit Event using the spot exchange rates therefor as quoted on Bloomberg (or, if same does not provide such
55
exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent) on the immediately preceding Business Day, provided, however, that at any time, if the
Aggregate Exposure (for the purposes of the determination thereof, using the U.S. Dollar Equivalent as recalculated based on the spot exchange rate therefor as quoted on Bloomberg (or, if same does not provide such exchange rates, on such other
basis as is reasonably satisfactory to the Administrative Agent) on the respective date of determination pursuant to this exception) would exceed 85% of the Total Revolving Loan Commitment or any, then in the sole discretion of the Administrative
Agent or at the request of the Required Lenders, the U.S. Dollar Equivalent shall be reset based upon the spot exchange rates on such date as quoted on Bloomberg (or, if same does not provide such exchange rates, on such other basis as is
reasonably satisfactory to the Administrative Agent), which rates shall remain in effect until the date of a Credit Event or such earlier date, if any, as the rate is reset pursuant to this proviso. Notwithstanding anything to the contrary contained
in this definition, at any time that a Default or an Event of Default then exists, the Administrative Agent may revalue the U.S. Dollar Equivalent of any amounts outstanding under the Credit Documents in a currency other than U.S. Dollars on
any date in its sole discretion in accordance with the foregoing methodology.
“U.S. Dollars” and the sign
“$” shall each mean freely transferable lawful money of the United States.
“U.S. Guarantors” shall mean
and include each U.S. Borrower (in its capacity as a guarantor under the U.S. Guaranty) and each U.S. Subsidiary Guarantor.
“U.S.
Guaranty” shall mean the U.S. Guaranty, dated as of the Effective Date, in the form of Exhibit G-2, as amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof.
“U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30)
of the Code.
“U.S. Security Agreement” shall mean the U.S. Security Agreement, dated as of the Effective Date, in the
form of Exhibit I-4, as amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof.
“U.S. Subsidiary Guarantors” shall mean each Wholly-Owned Domestic Subsidiary of the Company (other than any U.S. Borrower,
any Securitization Subsidiary, any Excluded Energy Storage 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 Domestic Subsidiary is released from all of its obligations under the U.S. Guaranty and the Security Documents to which it is a party in accordance with the terms and provisions hereof and thereof.
“U.S. Tax Compliance Certificate” shall have the meaning provided in Section 5.04(e)(iii).
“Used” shall mean, with respect to any Inventory, that such Inventory was previously sold (other than to a Credit Party),
excluding remanufactured items.
“Vendor Liabilities Reserve” shall mean a reserve established by the Administrative
Agent in connection with the accounts payable balance owed to third-party vendors where Inventory of the Borrowers is physically located with such vendor.
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“Voting Stock” shall mean, as to any entity, all classes of Equity Interests of
such entity then outstanding and normally entitled to vote in the election of directors of such entity.
“Weekly Borrowing Base
Period” shall mean any period (a) commencing on the date on which (i) a Default or an Event of Default has occurred and is continuing or (ii) (A) Excess Availability is less than the greater of (1) 10% of
Availability as then in effect and (2) $20,000,000 for five consecutive Business Days and (B) Designated Cash is less than the Liquidity Threshold and (b) ending on the first date thereafter on which (i) no Default or Event of
Default exists and (ii) Excess Availability has been equal to or greater than the greater of (A) 10% of Availability as then in effect and (B) $20,000,000 for 30 consecutive days.
“Wholly-Owned Dutch Subsidiary” shall mean, as to any Person, any Dutch Subsidiary of such Person that is a Wholly-Owned
Subsidiary.
“Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Domestic Subsidiary of such Person that
is a Wholly-Owned Subsidiary.
“Wholly-Owned Foreign Subsidiary” shall mean, as to any Person, any Foreign Subsidiary of
such Person that is a Wholly-Owned Subsidiary.
“Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than, in the case of a Foreign Subsidiary of the Company with respect to the preceding clauses (i) and (ii), directors’
qualifying shares and/or other nominal amounts of shares required to be held by Persons other than the Company and its Subsidiaries under applicable law).
1.02. Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Credit Documents or any certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Credit Documents, and any certificate or other document made or delivered pursuant hereto or thereto,
(i) accounting terms not defined in Section 1.01 shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue, assume or become liable in respect of (and the words “incurred” and “incurrence” shall have correlative
meanings), (iv) unless the context otherwise requires, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, Equity Interests, securities, revenues, accounts, leasehold interests and contract rights, (v) the word “will” shall be construed to have the same meaning and effect as the word “shall”, and (vi) unless
the context otherwise requires, any reference herein (A) to any Person shall be construed to include such Person’s successors and assigns and (B) to the Company or any other Credit Party shall be construed to include the Company or
such Credit Party as debtor and debtor-in-possession and any receiver or trustee for the Company or any other Credit Party, as the case may be, in any insolvency or liquidation proceeding.
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(c) The words “hereof,” “herein” and “hereunder” and words of
similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(e) Where the context so requires, all references herein to a financing statement, continuation statement, amendment or termination statement
shall be deemed to refer also to the analogous documents used under applicable Dutch personal property security laws.
SECTION 2.
Amount and Terms of Credit.
2.01. The Commitments. (a) Subject to and upon the terms and conditions set forth herein,
each Lender severally agrees to make, at any time and from time to time on or after the Effective Date and prior to the Final Maturity Date, (x) a revolving loan or revolving loans to any U.S. Borrower (on a joint and several basis with the
other U.S. Borrowers) (each, a “U.S. Borrower Revolving Loan” and, collectively, the “U.S. Borrower Revolving Loans”), and (y) a revolving loan or revolving loans to any Dutch Borrower (on a joint and several
basis with the other Dutch Borrowers) (each, a “Dutch Borrower Revolving Loan” and, collectively, the “Dutch Borrower Revolving Loans” and, together with the U.S. Borrower Revolving Loans, each, a “Revolving
Loan” and, collectively, the “Revolving Loans”), which Revolving Loans:
(i) shall be made and
maintained in an Available Currency;
(ii) except as hereafter provided, shall, at the option of the applicable Borrower,
be incurred and maintained as, and/or converted into, Base Rate Loans (in the case of U.S. Dollar Denominated Revolving Loans only) or LIBOR Loans; provided that, except as otherwise specifically provided in Section 2.10(b), all
Revolving Loans comprising the same Borrowing shall at all times be of the same Type;
(iii) may be repaid and reborrowed
in accordance with the provisions hereof;
(iv) shall not be made (and shall not be required to be made) by any Lender in
any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Individual Exposure of
such Lender to exceed the amount of its Revolving Loan Commitment at such time;
(v) shall not be made (and shall not be
required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement)
would cause the Aggregate Exposure to exceed the Total Revolving Loan Commitment as then in effect;
(vi) except as
otherwise provided in Section 2.01(e), in the case of U.S. Borrower Revolving Loans, shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the
proceeds thereof on the date of incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate U.S. Borrower Exposure to exceed the U.S. Borrowing Base at such time;
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(vii) except as otherwise provided in Section 2.01(e), in the case of Dutch
Borrower Revolving Loans, shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of incurrence thereof to repay any
amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate Dutch Borrower Exposure to exceed the Dutch Borrowing Base at such time; and
(viii) shall not be made (and shall not be required to be made) by any Lender during a Reduced Availability Period in any
instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause Excess Availability to be less than
10% of Availability at such time.
(b) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to
make, at any time and from time to time on or after the Effective Date and prior to the Swingline Expiry Date, (x) a revolving loan or revolving loans to any U.S. Borrower (on a joint and several basis with the other U.S. Borrowers) (each, a
“U.S. Borrower Swingline Loan” and, collectively, the “U.S. Borrower Swingline Loans”) and (y) a revolving loan or revolving loans to any Dutch Borrower (on a joint and several basis with the other Dutch
Borrowers) (each, a “Dutch Borrower Swingline Loan” and, collectively, the “Dutch Borrower Swingline Loans” and, together with the U.S. Borrower Swingline Loans, each, a “Swingline Loan” and,
collectively, the “Swingline Loans”), which Swingline Loans:
(i) shall be made and maintained in U.S.
Dollars;
(ii) shall be incurred and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions hereof;
(iv) shall not be made (and shall not be required to be made) by the Swingline Lender in any instance where the incurrence
thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate Exposure to exceed the Total Revolving Loan
Commitment as then in effect;
(v) in the case of U.S. Borrower Swingline Loans, shall not be made (and shall not be
required to be made) by the Swingline Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of incurrence thereof to repay any amounts theretofore outstanding pursuant to this
Agreement) would cause the Aggregate U.S. Borrower Exposure to exceed the U.S. Borrowing Base at such time;
(vi) in the
case of Dutch Borrower Swingline Loans, shall not be made (and shall not be required to be made) by the Swingline Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of incurrence
thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate Dutch Borrower Exposure to exceed the Dutch Borrowing Base at such time;
(vii) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; and
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(viii) shall not be made (and shall not be required to be made) by the Swingline
Lender during a Reduced Availability Period in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of incurrence thereof to repay any amounts theretofore outstanding pursuant to this
Agreement) would cause Excess Availability to be less than 10% of Availability at such time.
Notwithstanding anything to the contrary
contained in this Section 2.01(b), the Swingline Lender shall not make any Swingline Loan after it has received written notice from any Borrower, any other Credit Party or the Required Lenders stating that a Default or an Event of Default
exists and is continuing until such time as the Swingline Lender shall have received written notice (A) of rescission of all such notices from the party or parties originally delivering such notice or notices or (B) of the waiver of such
Default or Event of Default by the Required Lenders.
(c) On any Business Day, the Swingline Lender or the Administrative Agent, as the
case may be, may, in its sole discretion give notice to the Lenders that the Swingline Lender’s outstanding Swingline Loans or the Administrative Agent’s outstanding Agent Advances, as the case may be, shall be funded with one or more
Borrowings of Revolving Loans to be made to, and maintained by, the relevant Borrower of the outstanding Swingline Loan or Agent Advance being funded by such Revolving Loan in U.S. Dollars (provided that such notice shall be deemed to have
been given no later than the fifth Business Day after the making of any Swingline Loan (if not given earlier) and shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 11.05 or
upon the exercise of any of the remedies provided in the last paragraph of Section 11), in which case one or more Borrowings of Revolving Loans in U.S. Dollars constituting Base Rate Loans (any such Borrowing, a “Mandatory
Borrowing”) shall be made on the immediately succeeding Business Day by all Lenders pro rata based on each such Lender’s RL Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to
the last paragraph of Section 11) and the proceeds thereof shall be applied directly by the Swingline Lender or the Administrative Agent, as the case may be, to repay the Swingline Lender or the Administrative Agent, as the case may be, for
such outstanding Swingline Loans or Agent Advances. Each Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Swingline Lender or the Administrative Agent, as the case may be, notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required
hereunder, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing, (v) the amount of any Borrowing Base or
the Total Revolving Loan Commitment at such time and (vi) during a Reduced Availability Period, Excess Availability after giving effect to such Loans. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower (including under any Dutch Insolvency Law)), then each Lender hereby agrees that it shall forthwith purchase (as of the
date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from any Borrower on or after such date and prior to such purchase) from the Swingline Lender or the Administrative Agent, as the case may be, such
participations in the outstanding Swingline Loans or Agent Advances, as the case may be, as shall be necessary to cause the Lenders to share in such Swingline Loans or Agent Advances, as the case may be, ratably based upon their respective RL
Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 11), provided that (x) all interest payable on the Swingline Loans or Agent Advances, as the case
may be, shall be for the account of the Swingline Lender or the Administrative Agent, as the case may be, until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased
participation, shall be payable
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to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the
Swingline Lender or the Administrative Agent, as the case may be, interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but
excluding the date of payment for such participation at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to such Revolving Loans denominated in U.S. Dollars, in each case maintained as Base Rate
Loans hereunder for each day thereafter.
(d) Notwithstanding anything to the contrary in Section 2.01(a) or (b) or elsewhere
in this Agreement, the Administrative Agent shall have the right to establish Reserves in such amounts, and with respect to such matters, but subject to the limitations contained in the definitions of “Reserves”, “Eligible
Accounts”, “Eligible Inventory” and “Eligible Machinery and Equipment” herein, as the Administrative Agent in its Permitted Discretion shall deem necessary or appropriate, against the U.S. Borrowing Base or the Dutch
Borrowing Base (which Reserves shall reduce the then existing applicable Borrowing Base in an amount equal to such Reserves).
(e) (i) In
the event that the Borrowers are unable to comply with any Borrowing Base limitations set forth in Section 2.01(a) or (b) or (ii) the Borrowers are unable to satisfy the conditions precedent to the making of Revolving Loans set forth
in Section 7, in either case, the Lenders, subject to the immediately succeeding proviso, hereby authorize the Administrative Agent, for the account of the Lenders, to make U.S. Borrower Revolving Loans to any U.S. Borrower (on a joint and
several basis with the other U.S. Borrowers) or Dutch Borrower Revolving Loans to any Dutch Borrower (on a joint and several basis with the other Dutch Borrowers) solely in the event that the Administrative Agent in its Permitted Discretion deems
necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of repayment of the Obligations, or (C) to pay any other amount chargeable to the Borrowers pursuant to the terms
of this Agreement and then due, including Expenses and Fees, which Revolving Loans may only be made in U.S. Dollars as Base Rate Loans (each, an “Agent Advance”) for a period commencing on the date the Administrative Agent first
receives a Notice of Borrowing requesting an Agent Advance until the earliest of (x) the 30th Business Day after such date, (y) the date the respective Borrowers are again able to comply with the applicable Borrowing Base limitations and
the conditions precedent to the making of Revolving Loans, or obtain an amendment or waiver with respect thereto and (z) the date the Required Lenders instruct the Administrative Agent to cease making Agent Advances (in each case, the
“Agent Advance Period”); provided that the Administrative Agent shall not make any Agent Advance to any U.S. Borrower or Dutch Borrower to the extent that at the time of the making of such Agent Advance, the amount of such
Agent Advance (I) when added to the aggregate outstanding amount of all other Agent Advances made to (x) the U.S. Borrowers at such time, would exceed 5% of the U.S. Borrowing Base at such time or (y) the Dutch Borrowers at such time,
would exceed 5% of the Dutch Borrowing Base at such time or (II) when added to the Aggregate Exposure as then in effect (immediately prior to the incurrence of such Agent Advance), would exceed the Total Revolving Loan Commitment at such time. Agent
Advances may be made by the Administrative Agent in its sole discretion and no Borrower shall have any right whatsoever to require that any Agent Advances be made. Agent Advances will be subject to periodic settlement with the Lenders pursuant to
Section 2.01(c).
(f) If the Initial Maturity Date shall have occurred at a time when Extended Revolving Loan Commitments are in
effect, then on the Initial Maturity Date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Initial
Maturity Date) or refinanced with a borrowing of an Extended Revolving Loan; provided that, if on the occurrence of the
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Initial Maturity Date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 3.07), there shall exist
sufficient unutilized Extended Revolving Loan Commitments so that the respective outstanding Swingline Loans could be incurred pursuant the Extended Revolving Loan Commitments which will remain in effect after the occurrence of the Initial Maturity
Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the Extended Revolving Loan Commitments and such Swingline Loans shall not
be so required to be repaid in full on the Initial Maturity Date.
2.02. Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Loans of a specific Type and currency shall not be less than the Minimum Borrowing Amount applicable to Loans made in such currency and of such Type. More than one Borrowing may occur on the same date, but at no time
shall there be outstanding more than ten Borrowings of LIBOR Loans (or such greater number of Borrowings of LIBOR Loans as may be agreed to from time to time by the Administrative Agent) in the aggregate for all LIBOR Loans.
2.03. Notice of Borrowing. (a) Whenever a Borrower desires to incur (x) LIBOR Loans hereunder, such Borrower shall give the
Administrative Agent written notice or telephonic notice promptly confirmed in writing to the Notice Office, which notice must be received by the Administrative Agent prior to 2:00 P.M. (New York City time) at least three Business Days’ (or
four Business Days’ in the case of Loans denominated in Euros or an Acceptable Foreign Currency) prior to the requested date of Borrowing of each such LIBOR Loan to be incurred hereunder, and (y) Base Rate Loans hereunder (including Agent
Advances, but excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory Borrowing), such Borrower shall give the Administrative Agent written notice or telephonic notice promptly confirmed in writing to the Notice Office, which
notice must be received by the Administrative Agent prior to 2:00 P.M. (New York City time) at least one Business Day prior to the requested date of Borrowing of each such Base Rate Loan to be incurred hereunder. Each such notice (each, a
“Notice of Borrowing”), except as otherwise expressly provided in Section 2.10, shall be irrevocable and shall be in writing, or by telephone promptly confirmed in writing, in the form of Exhibit A-1, appropriately completed to
specify: (i) the aggregate principal amount of the Revolving Loans to be incurred pursuant to such Borrowing (stated in the Available Currency in which such Revolving Loan is to be made), (ii) the date of such Borrowing (which shall be a
Business Day), (iii) whether the Revolving Loans made pursuant to such Borrowing constitute Agent Advances (it being understood that the Administrative Agent shall be under no obligation to make such Agent Advance), (iv) in the case of
U.S. Dollar Denominated Revolving Loans, whether the Revolving Loans being incurred pursuant to such Borrowing are to be initially maintained as Base Rate Loans or, to the extent permitted hereunder, LIBOR Loans and, if LIBOR Loans, the initial
Interest Period to be applicable thereto and (v) the applicable Borrowing Base at such time. Except in the case of Agent Advances, the Administrative Agent shall promptly give each Lender notice of such proposed Borrowing, of such Lender’s
proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever a Borrower desires to incur Swingline Loans hereunder, such Borrower shall give the Swingline Lender no later than 2:00 P.M.
(New York City time) on the date that a Swingline Loan is to be incurred, written notice or telephonic notice promptly confirmed in writing of each Swingline Loan to be incurred hereunder. Each such notice shall be irrevocable and specify in each
case (A) the date of Borrowing (which shall be a Business Day) and (B) the aggregate principal amount of the Swingline Loans to be incurred pursuant to such Borrowing.
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(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 2.01(c), with each Borrower irrevocably agreeing, by its incurrence of any Swingline Loan or Agent Advance, to the making of the Mandatory Borrowings as set forth in Section 2.01(c).
(c) Without in any way limiting the obligation of any Borrower to confirm in writing any telephonic notice of any Borrowing or prepayment of
Loans, the Administrative Agent or the Swingline Lender, as the case may be, may act without liability upon the basis of telephonic notice of such Borrowing or prepayment, as the case may be, believed by the Administrative Agent or the Swingline
Lender, as the case may be, in good faith to be from an Authorized Officer of such Borrower, prior to receipt of written confirmation. In each such case, such Borrower hereby waives the right to dispute the Administrative Agent’s or the
Swingline Lender’s record of the terms of such telephonic notice of such Borrowing or prepayment of Loans, as the case may be, absent manifest error.
2.04. Disbursement of Funds. No later than 3:00 P.M. (New York City time) on the date specified in each Notice of Borrowing (or
(x) in the case of Swingline Loans, no later than 4:00 P.M. (New York City time) on the date specified pursuant to Section 2.03(b) or (y) in the case of Mandatory Borrowings, no later than 3:00 P.M. (New York City time) on
the date specified in Section 2.01(c)), each Lender will make available its pro rata portion (determined in accordance with Section 2.07) of each such Borrowing requested to be made on such date (or in the case of Swingline Loans, the
Swingline Lender will make available the full amount thereof). All such amounts will be made available in U.S. Dollars (in the case of Loans denominated in U.S. Dollars), in Euros (in the case of Euro Denominated Loans) or in the applicable
Acceptable Foreign Currency (in the case of Foreign Currency Denominated Loans), as the case may be, and in immediately available funds at the Payment Office, and the Administrative Agent will, except in the case of Revolving Loans made pursuant to
a Mandatory Borrowing or as otherwise provided in the last sentence of Section 3.05(a), make available to the relevant Borrower or Borrowers to such account as the applicable Borrower or Borrowers may specify in writing to the Administrative
Agent prior to the requested Borrowing date, the aggregate of the amounts so made available by the Lenders; provided that, if, on the date of a Borrowing of Revolving Loans (other than a Mandatory Borrowing), there are Unpaid Drawings or
Swingline Loans then outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such Unpaid Drawings with respect to Letters of Credit, second, to the payment in full of any such Swingline
Loans, and third, to the relevant Borrower as otherwise provided above. Unless the Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender’s portion of any Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the relevant Borrower or Borrowers a corresponding amount. If such corresponding amount is not in fact made available to the Administrative
Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent shall promptly notify the relevant Borrower or Borrowers, and the relevant Borrower or Borrowers shall promptly (but in any event within one Business Day) pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover on demand from such Lender or the relevant Borrower or Borrowers, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was
made available by the Administrative Agent to the relevant Borrower or Borrowers until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, the overnight
Federal Funds Rate (or, in the case of Euro Denominated Loans or Foreign Currency Denominated Loans, the cost to the Administrative Agent of acquiring overnight funds in the applicable Foreign Currency) for the first three days and at the interest
rate
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otherwise applicable to such Loans for each day thereafter and (ii) if recovered from the relevant Borrower or Borrowers, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 2.08. Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which any Borrower may have against any Lender as a result of
any failure by such Lender to make Loans hereunder.
2.05. Notes. Each Borrower’s obligation to pay the principal of, and
interest on, the Loans made by each Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to Section 13.15 and shall, if requested by such Lender, also be evidenced (i) in the case of U.S. Borrower
Revolving Loans, by a promissory note duly executed and delivered by each U.S. Borrower substantially in the form of Exhibit B-1, with blanks appropriately completed in conformity herewith (each, a “U.S. Borrower Revolving Note”
and, collectively, the “U.S. Borrower Revolving Notes”), (ii) in the case of Dutch Borrower Revolving Loans, by a promissory note duly executed and delivered by each Dutch Borrower substantially in the form of Exhibit B-2, with
blanks appropriately completed in conformity herewith (each, a “Dutch Borrower Revolving Note” and, collectively, the “Dutch Borrower Revolving Notes” and, together with the U.S. Borrower Revolving Notes, the
“Revolving Notes”), (iii) in the case of U.S. Borrower Swingline Loans, by a promissory note duly executed and delivered by each U.S. Borrower substantially in the form of Exhibit B-3, with blanks appropriately completed in
conformity herewith (the “U.S. Borrower Swingline Note”), and (iv) in the case of Dutch Borrower Swingline Loans, by a promissory note duly executed and delivered by each Dutch Borrower substantially in the form of Exhibit B-4,
with blanks appropriately completed in conformity herewith (each, a “Dutch Borrower Swingline Note” and, together with the U.S. Borrower Swingline Note, the “Swingline Notes”).
(a) Each Lender will note on its internal records the amount of each Loan made by it and each payment in respect thereof and prior to any
transfer of any of its Notes will endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make any such notation or any error in such notation shall not affect any Borrower’s obligations in
respect of such Loans.
(b) Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere in this
Agreement, Notes shall only be delivered to Lenders which at any time specifically request the delivery of such Notes. No failure of any Lender to request, obtain, maintain or produce a Note evidencing its Loans to any Borrower shall affect, or in
any manner impair, the obligations of any Borrower to pay the Loans (and all related Obligations) incurred by such Borrower which would otherwise be evidenced thereby in accordance with the requirements of this Agreement, and shall not in any way
affect the security or guaranties therefor provided pursuant to any Credit Document. Any Lender which does not have a Note evidencing its outstanding Loans shall in no event be required to make the notations otherwise described in preceding clause
(b). At any time when any Lender requests the delivery of a Note to evidence any of its Loans, each respective Borrower shall promptly execute and deliver to the respective Lender, at such Borrower’s expense, the requested Note in the
appropriate amount or amounts to evidence such Loans.
2.06. Conversions. Each Borrower shall have the option to convert, on any
Business Day, all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of U.S. Dollar Denominated Revolving Loans made to it pursuant to one or more Borrowings of one or more Types of U.S. Dollar
Denominated Revolving Loans into a Borrowing of another Type of U.S. Dollar Denominated Revolving Loan; provided that, (a) except as otherwise provided in Section 2.10(b), LIBOR Loans may be converted into Base Rate Loans only
on the last day of an Interest Period applicable to the Revolving Loans being converted unless the Borrowers pay any amounts due to the Lenders pursuant to Section 2.11 as a result of such conversion and no such partial conversion of
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LIBOR Loans shall reduce the outstanding principal amount of such LIBOR Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount applicable thereto, (b) Base Rate
Loans may not be converted into LIBOR Loans if any Event of Default is in existence on the proposed date of conversion and either the Administrative Agent or the Required Lenders have elected, upon notice to the Borrowers, to not permit such
conversion in its or their sole discretion, and (c) no conversion pursuant to this Section 2.06 shall result in a greater number of Borrowings of LIBOR Loans than is permitted under Section 2.02. Each such conversion shall be effected
by the relevant Borrower by giving the Administrative Agent at the Notice Office prior to 2:00 P.M. (New York City time) at least (i) in the case of conversions of Base Rate Loans into LIBOR Loans, three Business Days’ (or, with respect to
Loans denominated in Euros or an Acceptable Foreign Currency, four Business Days’) prior written notice or telephonic notice promptly confirmed in writing and (ii) in the case of conversions of LIBOR Loans into Base Rate Loans, one
Business Day’s prior written notice or telephonic notice promptly confirmed in writing (each, a “Notice of Conversion/Continuation”), in each case in the form of Exhibit A-2, appropriately completed to specify the
U.S. Dollar Denominated Revolving Loans to be so converted, the Borrowing or Borrowings pursuant to which such U.S. Dollar Denominated Revolving Loans were incurred and, if to be converted into LIBOR Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its U.S. Dollar Denominated Revolving Loans.
2.07. Pro Rata Borrowings. Except to the extent otherwise provided herein, all Borrowings of Revolving Loans under this Agreement shall
be incurred from the Lenders pro rata on the basis of their Revolving Loan Commitments, provided that all Mandatory Borrowings shall be incurred from the Lenders pro rata on the basis of their RL Percentages. It is understood that no Lender
shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make
its Loans hereunder.
2.08. Interest. (a) The U.S. Borrowers jointly and severally agree to pay interest in respect of the
unpaid principal amount of each U.S. Borrower Loan and (y) the Dutch Borrowers jointly and severally agree to pay interest in respect of the unpaid principal amount of each Dutch Borrower Loan, in each case as follows:
(A) in the case of a Base Rate Loan, from the date of Borrowing thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise), repayment or prepayment and (ii) the conversion of such Base Rate Loan to a LIBOR Loan pursuant to Section 2.06 or 2.09, as applicable, at a rate per annum which shall be equal to the sum of the relevant
Applicable Margin plus the Base Rate, each as in effect from time to time; and
(B) in the case of a LIBOR Loan, from the date of
Borrowing thereof until the earlier of (i) the maturity thereof (whether by acceleration or otherwise), repayment or prepayment and (ii) the conversion of such LIBOR Loan to a Base Rate Loan pursuant to Section 2.06, 2.09 or 2.10, as
applicable, at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as in effect from time to time during such Interest Period plus the LIBO Rate for such Interest
Period.
(b) Notwithstanding the foregoing, if any principal or interest on any Loan, any Letter of Credit fee or any other amount
payable by a Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to 2% in excess of the rate
applicable to Base Rate Loans from time to time. Interest that accrues under this Section 2.08(b) shall be payable on demand.
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(c) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan, (x) quarterly in arrears on each Quarterly Payment Date, (y) on the date of any repayment or prepayment in full of all outstanding Base Rate Loans or upon the termination of the Total Revolving Loan Commitment, and (z) at
maturity (whether by acceleration or otherwise) and, after such maturity, on demand and (ii) in respect of each LIBOR Loan, (x) on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first day of such Interest Period, (y) on the date of any repayment or prepayment (on the amount repaid or prepaid), or upon the termination of the Total Revolving Loan
Commitment, and (z) at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.
(d) Upon each Interest
Determination Date, the Administrative Agent shall determine the LIBO Rate for each Interest Period applicable to the respective LIBOR Loans and shall promptly notify the respective Borrowers and the Lenders thereof. Each such determination shall,
absent manifest error, be final and conclusive and binding on all parties hereto.
2.09. Interest Periods. At the time any Borrower
gives any Notice of Borrowing or Notice of Conversion/Continuation in respect of the making of, or conversion into, any LIBOR Loan (in the case of the initial Interest Period applicable thereto) or prior to 2:00 P.M. (New York City time) on the
third Business Day (or with respect to any Loan denominated in Euros or an Acceptable Foreign Currency, the fourth Business Day) prior to the expiration of an Interest Period applicable to such LIBOR Loan (in the case of any subsequent Interest
Period), such Borrower shall have the right to elect the interest period (each, an “Interest Period”) applicable to such LIBOR Loan, which Interest Period shall, at the option of such Borrower, be (x) a one, two, three or six
month period, or (y) with the consent of the Administrative Agent in its sole discretion, a period of less than one month or (z) to the extent agreed to by all Lenders, such other period; provided that (in each case):
(a) all LIBOR Loans comprising a Borrowing shall at all times have the same Interest Period;
(b) the initial Interest Period for any LIBOR Loan shall commence on the date of Borrowing of such LIBOR Loan (including the date of any
conversion thereto from a Base Rate Loan) and each Interest Period occurring thereafter in respect of such LIBOR Loan shall commence on the day on which the immediately preceding Interest Period applicable thereto expires;
(c) if any Interest Period for a LIBOR Loan begins on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;
(d) if any Interest Period
for a LIBOR Loan would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period for a LIBOR Loan would otherwise expire
on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;
(e) no Interest Period may be selected at any time when an Event of Default is then in existence if either the Administrative Agent or the
Required Lenders have elected, upon notice to the Borrowers, to not permit such selection in its or their sole discretion; and
(f) no
Interest Period in respect of any Borrowing shall be selected which extends beyond the Final Maturity Date.
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If by 2:00 P.M. (New York City time) on the third Business Day (or with respect to any Loan
denominated in Euros or an Acceptable Foreign Currency, the fourth Business Day) prior to the expiration of any Interest Period applicable to a Borrowing of LIBOR Loans, any Borrower has failed to elect, or is not permitted to elect, a new Interest
Period to be applicable to such LIBOR Loans as provided above, such Borrower shall be deemed to have elected (i) in respect of U.S. Dollar Denominated Revolving Loans to convert such LIBOR Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period and (ii) in respect of Loans denominated in Euros or an Acceptable Foreign Currency, a one-month Interest Period (provided that with respect to this clause (ii), if the Administrative Agent
or the Required Lenders have elected not to permit the selection of an Interest Period pursuant to clause (e) above, then on the expiration of the then-applicable Interest Period, such Loans shall be repaid).
2.10. Increased Costs, Illegality, etc. (a) In the event that any Lender shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the
London interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBO Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder
with respect to any LIBOR Loan because of any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, but not limited to: (A) any change that would subject the Administrative Agent or any Lender to any taxes (except for
Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (B) a change in official reserve requirements, but, in
all events, excluding reserves required under Regulation D to the extent included in the computation of the LIBO Rate or (C) any change that imposes on any Lender or the London interbank market any other condition, cost or expense (other than
taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) at
any time, that the making or continuance of any LIBOR Loan has been made (A) unlawful by any law or governmental rule, regulation or order, (B) impossible by compliance by any Lender in good faith with any governmental request (whether or
not having force of law) or (C) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the London interbank market.
then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to the affected Borrowers and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter (w) in the case of clause (i) above, LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by any Borrower with respect to LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by
such Borrower, (x) in the case of clause (ii) above, the U.S. Borrowers (jointly and severally with respect to U.S. Borrower Obligations)
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and the Dutch Borrowers (jointly and severally with respect to Dutch Borrower Obligations) agree to pay to such Lender, within 10 days after the Company’s receipt of such Lender’s
written request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the
respective Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto); provided that the Borrowers shall not be required to compensate any Lender pursuant to Section 2.10(ii) for
any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor;
provided, further, that, if the change giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof and (y) in
the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii), the affected Borrower may, and in
the case of a LIBOR Loan affected by the circumstances described in Section 2.10(a)(iii), such Borrower shall, either (i) if the affected LIBOR Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving
the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii), (ii) in respect of a LIBOR Loan
denominated in U.S. Dollars where the affected LIBOR Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such LIBOR Loan into a Base Rate Loan;
provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.10(b) or (iii) in respect of a LIBOR Loan denominated in Euros or an Acceptable Foreign
Currency, repay such Loan upon the expiration of the then-applicable Interest Period (or such earlier period as required by applicable law).
(c) If any Lender determines that after the Effective Date the introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the force of law) concerning capital adequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any Governmental Authority, central bank
or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender’s Revolving Loan
Commitment hereunder or its obligations hereunder, then the U.S. Borrowers (jointly and severally with respect to U.S. Borrower Obligations) and the Dutch Borrowers (jointly and severally with respect to Dutch Borrower Obligations) agree to pay to
such Lender, within 10 days after the Company’s receipt of such Lender’s written request therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or
such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital or required liquidity. In determining such additional amounts, each Lender will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding
on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Company, which notice shall show in reasonable detail the
basis for calculation of such additional amounts, although the failure to give any such notice shall not release or diminish the
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Borrowers’ obligations to pay additional amounts pursuant to this Section 2.10(c) upon the subsequent receipt of such notice; provided that the Borrowers shall not be required to
compensate any Lender pursuant to this Section 2.10(c) for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Company of the change giving rise to such increased costs or reductions and
of such Lender’s intention to claim compensation therefor; provided further, that, if the change giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to
include the period of retroactive effect thereof.
(d) Notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall
be deemed to be a change after the Effective Date in a requirement of law or governmental rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10 and
Section 3.06).
(e) Notwithstanding anything herein to the contrary, if the introduction of or any change in any applicable law or
governmental rule, regulation or order shall make it unlawful for any Lender to issue, make, maintain, fund or charge interest with respect to any extension of credit to a Dutch Borrower or to give effect to its obligations as contemplated by this
Agreement with respect to any extension of credit to a Dutch Borrower, then, upon written notice by such Lender (each such Lender providing such notice, an “Impacted Lender”) to the Company and the Administrative Agent:
(i) the obligations of the Lenders hereunder to make extensions of credit to such Dutch Borrower shall forthwith be
(x) suspended until each Impacted Lender notifies the Company and the Administrative Agent in writing that it is no longer unlawful for such Lender to issue, make, maintain, fund or charge interest with respect to any extension of credit to
such Dutch Borrower or (y) to the extent required by law, cancelled;
(ii) if it shall be unlawful for any Impacted
Lender to maintain or charge interest with respect to any outstanding Loan to such Dutch Borrower, such Dutch Borrower shall repay (or at its option and to the extent permitted by law, assign to the Company) (x) all outstanding Base Rate Loans
made to such Dutch Borrower within three Business Days or such earlier period as required by law and (y) all outstanding LIBOR Loans made to such Dutch Borrower on the last day of the then current Interest Periods with respect to such LIBOR
Loans or within such earlier period as required by law; and
(iii) if it shall be unlawful for any Impacted Lender to
maintain, charge interest or hold any participation with respect to any Letter of Credit issued on behalf of such Dutch Borrower, such Dutch Borrower shall cash collateralize in a manner reasonably satisfactory to the Administrative Agent and the
applicable Issuing Lender such Letter of Credit in an amount equal to 102% of such Lender’s RL Percentage of the Letter of Credit Outstandings (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any
Acceptable Foreign Currency) with respect to such Letter of Credit within three Business Days or within such earlier period as required by law.
2.11. Compensation. The U.S. Borrowers (on a joint and several basis with respect to U.S. Borrower Obligations) or the Dutch Borrowers
(on a joint and several basis with respect to Dutch Borrower Obligations), as the case may be, agree to compensate each Lender, upon its written request
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(which request shall set forth in reasonable detail the basis for requesting such compensation), for all losses, expenses and liabilities (including any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its LIBOR Loans but excluding loss of anticipated profits) which such Lender may sustain: (a) if for any reason (other than a default by such
Lender or the Administrative Agent) a Borrowing of, or conversion from or into, LIBOR Loans by the applicable Borrower does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not
withdrawn by the respective Borrower or Borrowers or deemed withdrawn pursuant to Section 2.10(a)); (b) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 2.10(b), 2.10(e),
Section 5.01, Section 5.02 or as a result of an acceleration of the Loans pursuant to Section 11 or an assignment pursuant to Section 2.13) or conversion of any of its LIBOR Loans occurs on a date which is not the last day of an
Interest Period or maturity date, as applicable, with respect thereto; (c) if any prepayment of any of its LIBOR Loans by the applicable Borrower is not made on any date specified in a notice of prepayment given by the respective Borrower or
Borrowers; or (d) as a consequence of (i) any other default by the respective Borrower or Borrowers to repay LIBOR Loans when required by the terms of this Agreement or any Note held by such Lender or (ii) any election made pursuant
to Section 2.10(b).
2.12. Lending Offices and Affiliate Lenders for Loans in Available Currency.
(a) Each Lender may at any time or from time to time designate, by written notice to the Administrative Agent to the extent not already
reflected on Schedule 13.03, one or more lending offices (which, for this purpose, may include Affiliates of the respective Lender) for the various Loans in the Available Currency made, and Letters of Credit participated in, by such Lender
(including by designating a separate lending office (or Affiliate) to act as such with respect to such Loans and Letter of Credit Outstandings); provided that, for designations made after the Effective Date, to the extent such designation
shall result in increased costs or taxes under Section 2.10, 3.06 or 5.04 in excess of those which would be charged in the absence of the designation of a different lending office (including a different Affiliate of the respective Lender), then
the Borrowers shall not be obligated to pay such excess increased costs or taxes (although if such designation results in increased costs or taxes, the Borrowers shall be obligated to pay the costs and taxes which would have applied in the absence
of such designation and any subsequent increased costs and taxes of the type described above resulting from changes after the date of the respective designation). Except as provided in the immediately preceding sentence, each lending office and
Affiliate of any Lender designated as provided above shall, for all purposes of this Agreement and the other Credit Documents, be treated in the same manner as the respective designating Lender (and shall be entitled to all indemnities and similar
provisions in respect of its acting as such hereunder).
(b) Each Lender agrees that on the occurrence of any event giving rise to the
operation of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06 or Section 5.04 with respect to such Lender, it will, if requested by the Company, use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans or Letters of Credit affected by such event; provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section. Nothing in this Section 2.12(b) shall affect or postpone any of the obligations of any Borrower or the right of any Lender
provided in Sections 2.10, 3.06 and 5.04.
2.13. Replacement of Lenders. (a) If any Lender becomes a Defaulting Lender or
an Impacted Lender, (b) upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06 or Section 5.04 with respect to any Lender which results in such Lender
requesting additional amounts from the Borrowers pursuant to any such Sections, (c) in the case
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of a refusal by a Lender to consent to a proposed change, waiver, discharge or termination with respect to this Agreement which has been approved by the Required Lenders as (and to the extent)
provided in Section 13.12(b) or (d) in the circumstances provided in Section 2.19(b), the Borrowers shall have the right, in accordance with Section 13.04(b), to replace such Lender (the “Replaced Lender”) with
one or more other Eligible Transferees (collectively, the “Replacement Lender”) and each of which shall be reasonably acceptable to the Administrative Agent, the Swingline Lender and each Issuing Lender; provided that:
(i) at the time of any replacement pursuant to this Section 2.13, the Replacement Lender shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to be paid by the Borrowers) pursuant to which the Replacement Lender shall acquire at par the entire Revolving
Loan Commitment and all outstanding Revolving Loans of, and all participations in Letters of Credit and Swingline Loans by, the Replaced Lender and, in connection therewith, shall pay to (i) the Replaced Lender in respect thereof an amount
equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Revolving Loans of the respective Replaced Lender, (B) an amount equal to all Unpaid Drawings that have been funded by (and not
reimbursed to) such Replaced Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to Section 4.01,
(ii) each Issuing Lender an amount equal to such Replaced Lender’s RL Percentage of any Unpaid Drawing relating to Letters of Credit issued by such Issuing Lender (which at such time remains an Unpaid Drawing) to the extent such amount was
not theretofore funded by such Replaced Lender and (iii) the Swingline Lender an amount equal to such Replaced Lender’s RL Percentage of any Mandatory Borrowing to the extent such amount was not theretofore funded by such Replaced Lender
to the Swingline Lender; and
(ii) all obligations of the Borrowers then owing to the Replaced Lender (other than those
specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid, but including all amounts, if any, owing under Section 2.11) shall be paid in full to such Replaced
Lender concurrently with such replacement.
(b) Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to
this Section 2.13, if the Replaced Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption Agreement necessary to reflect such replacement by the later of (a) the date on which the
assignee Lender executes and delivers such Assignment and Assumption Agreement and (b) the date as of which all obligations of the Borrowers owing to such Replaced Lender relating to the Loans and participations so assigned shall be paid in
full by the assignee Lender and/or the Borrowers to such Replaced Lender, then the Replaced Lender shall be deemed to have executed and delivered such Assignment and Assumption Agreement as of such later date, and any such Assignment and Assumption
Agreement so executed by the Replaced Lender shall be effective for purposes of this Section 2.13 and Section 13.04. Upon the execution (or deemed execution, as the case may be) of the respective Assignment and Assumption Agreement by the
parties thereto, the payment of amounts referred to in clauses (i) and (ii) above, recordation of the assignment on the Register by the Administrative Agent pursuant to Section 13.15 and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note or Notes executed by the relevant Borrowers, (x) the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (including Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such Replaced Lender and (y) the RL Percentages of the Lenders shall be automatically
adjusted at such time to give effect to such replacement.
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2.14. Incremental Commitments. (a) The Company shall have the right, in consultation
and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of the Administrative Agent or the Lenders (except, in either case, as otherwise provided in this
Section 2.14), to request at any time and from time to time after the Effective Date and prior to the Final Maturity Date that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders)
provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant
thereto; provided that (i) no Lender shall be obligated to provide an Incremental Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered
to the Administrative Agent, the Company and the other Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving
Loan Commitment (if any) or participate in any Letters of Credit or Swingline Loans in excess of its RL Percentage, in each case, as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14 (it
being understood and agreed that any Lender that does not agree to provide any such Incremental Commitment within ten Business Days after a request therefor (or such shorter period as may be provided in any such request for Incremental Commitments)
shall be deemed to have declined to provide any such Incremental Commitment except to the extent such Lender thereafter executes and delivers an Incremental Commitment Agreement in accordance with the terms hereof), (ii) any Lender (including
any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender; provided that any Lender (or Person who is an Eligible Transferee who will become a Lender)
providing Incremental Commitments shall require the consent of the Administrative Agent, each Issuing Lender and the Swingline Lender (which consents shall not be unreasonably withheld, conditioned or delayed), (iii) the aggregate amount of
each request (and provision therefor) for Incremental Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.14
(including Persons who are Eligible Transferees and will become Lenders) of at least $50,000,000 (or such lesser amount that is acceptable to the Administrative Agent), (iv) the aggregate amount of all Incremental Commitments permitted to be
provided pursuant to this Section 2.14 shall not exceed in the aggregate $250,000,000, (v) all Revolving Loans incurred pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be Obligations
under this Agreement and the other applicable Credit Documents and shall be secured by the relevant Security Documents, and guaranteed under the relevant Guaranties, on a pari passu basis with all other Loans (and related Obligations) secured
by each relevant Security Document and guaranteed under each relevant Guaranty, and (vi) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an
Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and make Revolving
Loans as provided in Section 2.01(a) and such Revolving Loans shall constitute Revolving Loans for all purposes of this Agreement and the other applicable Credit Documents.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, (I) the Company, each other Borrower,
each Subsidiary Guarantor, the Administrative Agent, the Swingline Lender and each Issuing Lender (if the consent of the Swingline Lender and each Issuing Lender is required pursuant to Section 2.14(a)(ii)) and each such Lender or other
Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement, appropriately
completed (with the effectiveness of the Incremental Commitment provided therein to occur on the date set forth in such Incremental Commitment Agreement, which date in any
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event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, (ii) all Incremental
Commitment Requirements have been satisfied, (iii) all conditions set forth in this Section 2.14 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall
have been satisfied) and (II) the Company, each other Borrower, each Subsidiary Guarantor, the Collateral Agent and each Incremental Lender (as applicable) shall execute and deliver to the Administrative Agent and the Collateral Agent such
additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments are secured by each relevant Security Document (the “Incremental Security
Documents”). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement and, at such time, Schedule 1.01(a) shall be deemed modified to reflect the Incremental Commitments of
such Incremental Lenders.
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or
Incremental Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute part of, and be added to, the Total Revolving Loan Commitment and each Incremental Lender shall constitute a Lender for all purposes of this
Agreement and each other applicable Credit Document.
(d) At the time of any provision of Incremental Commitments pursuant to this
Section 2.14, each Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders),
in each case to the extent necessary so that all of the Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total
Revolving Loan Commitment pursuant to this Section 2.14) and with the Borrowers being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing.
(e) At the time of any provision of Incremental Commitments pursuant to this Section 2.14, all dollar thresholds included in any
determination made with respect to Excess Availability and the dollar amount of the Liquidity Threshold shall be increased automatically in an amount equal to the percentage by which the Incremental Commitments increase the Total Revolving Loan
Commitment.
2.15. Defaulting Lenders. (a) Notwithstanding any provision of this Agreement or in the other Credit Documents to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender and if any Swingline Loan Exposure or Letter of Credit Exposure exists at the time a Lender becomes
a Defaulting Lender then:
(i) all or any part of such Swingline Loan Exposure and Letter of Credit Exposure shall be
reallocated among the Lenders that are Non-Defaulting Lenders in accordance with their respective RL Percentages (calculated without regard to any Defaulting Lender’s Revolving Loan Commitment) but only to the extent (x) the sum of the
Individual Exposures of all Lenders that are Non-Defaulting Lenders plus such Defaulting Lender’s Swingline Loan Exposure and Letter of Credit Exposure does not exceed the aggregate amount of all Non-Defaulting Lenders’ Revolving
Loan Commitments and (y) immediately following the reallocation to a Lender that is a Non-Defaulting Lender, the Individual Exposure of such Lender does not exceed its Revolving Loan Commitment at such time;
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(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the applicable Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Loan Exposure and (y) second, cash collateralize in a manner
reasonably satisfactory to the Administrative Agent and each applicable Issuing Lender such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in an aggregate amount
equal to 102% of such Defaulting Lender’s Letter of Credit Exposure for so long as such Letter of Credit Exposure is outstanding (the “Letter of Credit Back-Stop Arrangements”) (it being understood that, for purposes of
clarity, (x) such requirement shall terminate as to any Defaulting Lender upon the termination of Defaulting Lender status of the applicable Lender and (y) at the request of the Company, upon a determination by the Administrative Agent or
the respective Issuing Lender that there exists cash collateral in excess of 102% of such Defaulting Lender’s Letter of Credit Exposure, such excess cash collateral may be returned to the applicable Borrowers so long as no Default or Event of
Default then exists or would result therefrom);
(iii) if any portion of such Defaulting Lender’s Letter of Credit
Exposure is cash collateralized pursuant to clause (ii) above, the applicable Borrowers shall not be required to pay the Letter of Credit Fees for participation with respect to such portion of such Defaulting Lender’s Letter of Credit
Exposure so long as it is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is
reallocated pursuant to this Section 2.15(a), then the Letter of Credit Fees payable to the Lenders pursuant to Section 4.01(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ RL Percentages (calculated without
regard to any Defaulting Lender’s Revolving Loan Commitment) and the Defaulting Lender shall not be entitled to any Letter of Credit Fee; and
(v) if any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this
Section 2.15(a), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all Letter of Credit Fees payable under Section 4.01(b) with respect to such Defaulting Lender’s Letter of Credit
Exposure shall be payable to the applicable Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated.
(b) Notwithstanding anything to the contrary contained in Section 2.01(a) or Section 3, so long as any Lender is a Defaulting
Lender (i) the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by
the Revolving Loan Commitments of the Non-Defaulting Lenders and/or cash collateral has been provided by the applicable Borrowers in accordance with Section 2.15(a), and (ii) participating interests in any such newly issued or increased
Letter of Credit or newly made Swingline Loan shall be allocated among Lenders that are Non-Defaulting Lenders in a manner consistent with Section 2.15(a)(i) (and Defaulting Lenders shall not participate therein).
(c) Notwithstanding anything to the contrary contained herein, in Section 5.4 of the U.S. Security Agreement, Section 5.4 of the
Dutch General Security Agreement, Section 5.3 of the Dutch Inventory Security Agreement or Section 6.3 of the Dutch Receivables Security Agreement, any amount payable to a Defaulting Lender hereunder (whether on account of principal,
interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 13.02) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a
segregated non-interest bearing account and, subject to any requirements of applicable law, be applied at such time or times as may be determined by the Administrative Agent
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(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent
hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lenders or the Swingline Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash
collateralization of any participation in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent,
(iv) fourth, if so determined by the Administrative Agent, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, to the payment of any amounts owing
to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement,
(vi) sixth, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by the such Borrower
against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if such payment is (x) a prepayment of the principal amount of any Loans or repayments of Unpaid Drawings in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the
conditions set forth in Section 7 are satisfied or waived, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any
Loans, or Unpaid Drawings owed to, any Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to
this clause (c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d)
In the event that the Administrative Agent, the Company, each Issuing Lender and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the
Swingline Loan Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitments and on such date such Lender shall purchase at par such of the Revolving Loans of the
other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its RL Percentage and (ii) so long as no Default or Event of
Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the applicable Borrowers; provided that, except to the extent otherwise expressly agreed
to by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder against such Defaulting Lender arising from that Lender having been a
Defaulting Lender. If the Revolving Loan Commitments have been terminated, all Obligations have been paid in full and no Letters of Credit are outstanding, then all funds held as cash collateral pursuant to the Letter of Credit Back-Stop
Arrangements shall thereafter be promptly returned to the applicable Borrowers.
2.16. [Reserved].
2.17. [Reserved].
2.18.
The Company as Agent for Borrowers. Each Borrower hereby irrevocably appoints the Company as its agent and attorney-in-fact for all purposes under this Agreement and each other Credit Document, which appointment shall remain in full force and
effect unless and until the Administrative Agent shall have received prior written notice signed by the respective appointing Borrower that such appointment has been revoked. Each Borrower hereby irrevocably appoints and
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authorizes the Company (i) to provide the Administrative Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any Borrower and all other notices and
instructions under this Agreement or any other Credit Document and (ii) to take such action as the Company deems appropriate on its behalf to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this
Agreement and the other Credit Documents. It is understood that the handling of the Credit Account and the Collateral of the respective Borrowers in a combined fashion (i.e., the U.S. Borrowers in a combined fashion and the Dutch Borrowers in a
combined fashion), as more fully set forth herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most efficient and economical manner and at their request, and that
the Lenders shall not incur liability to any Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the handling of the Credit Account and the Collateral in a combined fashion since the successful
operation of each Borrower is dependent on the continued successful performance of the consolidated group.
2.19. Extension of
Revolving Loan Commitments. (a) Notwithstanding anything to the contrary in this Agreement, subject to the terms of this Section 2.19, the Company may extend the maturity date, and otherwise modify the terms of the Total Revolving Loan
Commitment, or any portion thereof (including by increasing the interest rate or fees payable in respect of any Loans and/or Revolving Loan Commitments or any portion thereof (and related outstandings) (the “Extension”) pursuant to
a written offer (the “Extension Offer”) made by the Company to all Lenders, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective outstanding Revolving Loans and unfunded Revolving
Loan Commitments) and on the same terms to each such Lender. In connection with the Extension, (i) the Company will provide notification to the Administrative Agent (for distribution to the Lenders), (ii) the Swingline Lender and
(iii) each Lender, acting in its sole and individual discretion, wishing to participate in the Extension shall, prior to the date (the “Notice Date”) specified in the notice (which shall be at least 10 Business Days after
delivery of the notice) given by the Administrative Agent to such Lender, provide the Administrative Agent with a written notice thereof in a form reasonably satisfactory to the Administrative Agent. Any Lender that does not respond to the Extension
Offer by the Notice Date shall be deemed to have rejected such Extension. The Administrative Agent shall promptly notify the Company of each Lender’s determination under this Section 2.19(a). The election of any Lender to agree to the
Extension shall not obligate any other Lender to so agree. After giving effect to the Extension, the Revolving Loan Commitments so extended shall cease to be a part of the tranche of the Revolving Loan Commitments they were a part of immediately
prior to the Extension and shall be a new tranche of Extended Revolving Loan Commitments hereunder.
(b) The Company shall have the right
to replace each Lender that shall have rejected (or be deemed to have rejected) the Extension under Section 2.19(a) with, and add as “Lenders” under this Agreement in place thereof, one or more Replacement Lenders as provided in
Section 2.13; provided that each of such Replacement Lenders shall enter into an Assignment and Assumption Agreement pursuant to which such Replacement Lender shall, effective as of a closing date selected by the Administrative Agent in
consultation with the Company (which shall occur on the same date as the effectiveness of the Extension as to the Lenders which have consented thereto pursuant to Section 2.19(a)), undertake the Revolving Loan Commitment of such Replaced Lender
(and, if any such Replacement Lender is already a Lender, its Revolving Loan Commitment shall be in addition to such Lender’s Revolving Loan Commitment hereunder on such date).
(c) The Extension shall be subject to the following:
(i) except as to interest rates, utilization fees, unused fees and final maturity, the Revolving Loan Commitment of any Lender
extended pursuant to the Extension (the “Extended Revolving Loan Commitment”), and the related outstandings, shall be a Revolving Loan Commitment (or related outstandings, as the case may be) with the same terms as the original
Revolving Loan
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Commitments (and related outstandings); provided that, subject to the provisions of Sections 3.07 and 2.01(f) to the extent dealing with Swingline Loans and Letters of Credit which mature
or expire after the Initial Maturity Date, all Swingline Loans and Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving Loan Commitments and/or Extended Revolving Loan Commitments in accordance with their RL
Percentages (and except as provided in Sections 3.07 and 2.01(f), without giving effect to changes thereto on the Initial Maturity Date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued) and all borrowings under
Revolving Loan Commitments and Extended Revolving Loan Commitments and repayments thereunder shall be made on a pro rata basis (except for (x) payments of interest and fees at different rates on Extended Revolving Loan Commitments (and related
outstandings) and (y) repayments required upon any Final Maturity Date of any tranche of Revolving Loan Commitments or Extended Revolving Loan Commitments);
(ii) if the aggregate principal amount of Revolving Loan Commitments in respect of which Lenders shall have accepted the
Extension Offer shall exceed the maximum aggregate principal amount of Revolving Loan Commitments offered to be extended by the Company pursuant to the Extension Offer, then the Revolving Loan Commitments of such Lenders shall be extended ratably up
to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted the Extension Offer;
(iii) all documentation in respect of the Extension shall be consistent with the foregoing, and all written communications by
the Company generally directed to the Lenders in connection therewith shall be in form consistent with the foregoing and otherwise reasonably satisfactory to the Administrative Agent; and
(iv) the Extension shall not become effective unless, on the proposed effective date of the Extension, (x) the Company
shall deliver to the Administrative Agent a certificate of an Authorized Officer of each Credit Party dated the applicable date of the Extension and executed by an Authorized Officer of such Credit Party certifying and attaching the resolutions
adopted by such Credit Party approving or consenting to such Extension and (y) the conditions set forth in Sections 7.01 and 7.03 shall be satisfied (with all references in such Section to any Credit Event being deemed to be references to the
Extension on the applicable date of the Extension) and the Administrative Agent shall have received a certificate to that effect dated the applicable date of the Extension and executed by an Authorized Officer of the Company.
(d) With respect to the Extension consummated by the Company pursuant to this Section 2.19, (i) the Extension shall not constitute
voluntary or mandatory payments or prepayments for purposes of this Agreement (including Section 5.01, 5.02, 5.03, 13.02 or 13.06), (ii) if the amount extended is less than the Maximum Letter of Credit Amount, the Maximum Letter of Credit
Amount shall be reduced upon the date that is five Business Days prior to the Initial Maturity Date (to the extent needed so that the Maximum Letter of Credit Amount does not exceed the aggregate Revolving Loan Commitments which would be in effect
after the Initial Maturity Date), and, if applicable, the Company shall cash collateralize obligations under any issued Letters of Credit with a termination date (taking into account any possible extensions thereof) later than five Business Days
prior to the Initial Maturity Date in an amount equal to 102% of the Stated Amount of such Letters of Credit that are in excess of the proposed reduced Maximum Letter of Credit Amount, and (iii) if the amount extended is less than the Maximum
Swingline Amount, the Maximum Swingline Amount shall be reduced upon the date that is five Business Days prior to the Initial Maturity Date (to the extent needed so that the Maximum Swingline Amount does not exceed the aggregate Revolving Loan
Commitments which
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would be in effect after the Initial Maturity Date), and, if applicable, the Company shall prepay any outstanding Swingline Loans in excess of the Maximum Swingline Amount that is then in effect.
The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.19 (including, for the avoidance of doubt, payment of any interest or fees in respect of any Extended Revolving
Loan Commitments on such terms as may be set forth in the Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Section 5.01, 5.02, 5.03, 13.02 or 13.06) or any other Credit Document that may otherwise
prohibit the Extension or any other transaction contemplated by this Section 2.19; provided that such consent shall not be deemed to be an acceptance of the Extension Offer.
(e) The Lenders hereby irrevocably authorize the Administrative Agent on behalf of all of the Lenders to enter into amendments to this
Agreement and the other Credit Documents with the Credit Parties as may be necessary in order establish new tranches in respect of Revolving Loan Commitments so extended and such amendments as may be necessary in connection with the establishment of
such new tranches, in each case on terms consistent with this Section 2.19 and without any requirement of additional consent by any Lender. Without limiting the foregoing, in connection with the Extension, the respective parties shall (at the
expense of the Credit Parties) amend (and the Administrative Agent is hereby authorized to amend) any Credit Document that has a maturity date prior to the Extended Final Maturity Date so that such maturity date is extended to the Extended Final
Maturity Date (or such later date as may be advised by local counsel to the Administrative Agent).
(f) In connection with the Extension,
the Company shall provide the Administrative Agent at least 10 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures, if any, as may be reasonably
established by, or reasonably acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.19.
SECTION 3. Letters of Credit.
3.01. Letters of Credit. (a) Subject to and upon the terms and conditions set forth herein, a Borrower may request that an Issuing
Lender issue, at any time and from time to time on and after the Effective Date and prior to the Final Maturity Date, (i) in the case of a request for a Letter of Credit by a U.S. Borrower, for the joint and several account of the U.S.
Borrowers, and (ii) in the case of a request for a Letter of Credit by a Dutch Borrower, for the joint and several account of the Dutch Borrowers, for the benefit of (x) any holder (or any trustee, agent or other similar representative for
any such holders) of L/C Supportable Obligations, an irrevocable standby letter of credit, in a form customarily used by such Issuing Lender or in such other form as is reasonably acceptable to such Issuing Lender, and (y) sellers of goods to
the Company or any of its Subsidiaries, an irrevocable trade letter of credit, in a form customarily used by such Issuing Lender or in such other form as has been approved by such Issuing Lender (each such letter of credit, a “Letter of
Credit” and, collectively, the “Letters of Credit”) (although (i) without limiting the joint and several nature of the U.S. Borrowers’ or the Dutch Borrowers’ obligations, as the case may be, in respect of
the Letters of Credit, any particular Letter of Credit may name only one or more of the U.S. Borrowers or the Dutch Borrowers, as the case may be, as the applicant or obligor therein and, at the direction of such respective Borrower(s), may be
issued for the benefit of, or on behalf of, one or more Wholly-Owned Subsidiaries of the Company and (ii) no Issuing Lender shall be obligated to confirm that any Letter of Credit is issued only for the benefit of a beneficiary set forth in
clauses (x) or (y) above or a Wholly-Owned Subsidiary of the Company).
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(b) Subject to and upon the terms and conditions set forth herein, each Issuing Lender agrees
that it will, at any time and from time to time on and after the Effective Date and prior to the Final Maturity Date, following its receipt of the respective Letter of Credit Request, issue for (i) in the case of a request for a Letter of
Credit by a U.S. Borrower, for the joint and several account of the U.S. Borrowers, and (ii) in the case of a request for a Letter of Credit by a Dutch Borrower, for the joint and several account of the Dutch Borrowers, one or more Letters of
Credit as are permitted to remain outstanding hereunder without giving rise to a Default or an Event of Default; provided that no Issuing Lender shall be under any obligation to issue trade Letters of Credit if such Issuing Lender has
provided the Company notice that it is unable to issue trade Letters of Credit; provided further that no Issuing Lender shall be under any obligation to issue any Letter of Credit of the types described above if at the time of such
issuance:
(i) (x) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to
enjoin or restrain such Issuing Lender from issuing such Letter of Credit or any requirement of law applicable to such Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Lender with respect to such
Letter of Credit any restriction or reserve or capital requirement (for which such Issuing Lender is not otherwise compensated hereunder) not in effect with respect to such Issuing Lender on the date hereof, (y) the issuance of such Letter of
Credit shall contradict any internal policy of such Issuing Lender, or (z) any unreimbursed loss, cost or expense which was not applicable or in effect with respect to such Issuing Lender as of the date hereof and which such Issuing Lender
reasonably and in good faith deems material to it; or
(ii) such Issuing Lender shall have received from any Borrower, any
other Credit Party or the Required Lenders prior to the issuance of such Letter of Credit notice of the type described in the second sentence of Section 3.03(b).
3.02. Maximum Letter of Credit Outstandings; Currencies; Final Maturities; Collateralized Letters of Credit. (a) Notwithstanding
anything to the contrary contained in this Agreement:
(i) no Letter of Credit shall be issued (or required to be issued)
if the Stated Amount of such Letter of Credit, when added to the Letter of Credit Outstandings (calculated (x) using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign Currency, and (y) exclusive of
Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of Credit) at such time would exceed $100,000,000 (the “Maximum Letter of Credit Amount”); provided that no Issuing Lender
shall be required to issue any Letter of Credit if the Stated Amount of such Letter of Credit, when added to the Letter of Credit Outstandings (calculated (1) using the U.S. Dollar Equivalent of amounts denominated in Euros or any
Acceptable Foreign Currency and (2) exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of Credit) in respect of Letters of Credit issued by such Issuing Lender at such time would
exceed of $35,000,000.
(ii) no Letter of Credit shall be issued (or required to be issued) at any time when the Aggregate
Exposure exceeds (or would after giving effect to such issuance exceed) the Total Revolving Loan Commitment at such time;
(iii) no Letter of Credit shall be issued (or required to be issued) for the account of a U.S. Borrower at any time when the
Aggregate U.S. Borrower Exposure exceeds (or would after giving effect to such issuance exceed) the U.S. Borrowing Base at such time;
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(iv) no Letter of Credit shall be issued (or required to be issued) for the
account of a Dutch Borrower at any time when the Aggregate Dutch Borrower Exposure exceeds (or would after giving effect to such issuance exceed) the Dutch Borrowing Base at such time;
(v) no Letter of Credit shall be issued (or required to be issued) during a Reduced Availability Period when Excess
Availability is less than (or would after giving effect to such issuance be less than) 10% of Availability at such time;
(vi) each Letter of Credit issued at the request of a Borrower shall be denominated in an Available Currency; and
(vii) each Letter of Credit shall by its terms terminate on or before the earlier of (i) the date which occurs 12 months
after the date of the issuance thereof or such longer period as may be acceptable to the respective Issuing Lender (although any such standby Letter of Credit may be extendible for successive periods of up to 12 months, but, in each case, not beyond
the fifth Business Day prior to the Final Maturity Date (but, for this purpose, determined without giving effect to the proviso contained in the definition of Initial Maturity Date), unless cash collateralized, prior to the extension of such Letter
of Credit, in an amount equal to 102% of the Stated Amount of such Letter of Credit in a manner reasonably acceptable to the respective Issuing Lender) and (ii) five Business Days prior to the Final Maturity Date (but, for this purpose,
determined without giving effect to the proviso contained in the definition of Initial Maturity Date) unless cash collateralized, prior to the issuance of such Letter of Credit, in an amount equal to 102% of the Stated Amount of such Letter of
Credit in a manner reasonably acceptable to the respective Issuing Lender.
(b) At any time, and from time to time, upon notice to the
Administrative Agent, the Company shall be permitted, if no Loans are then outstanding, to provide cash collateral in respect of any or all of the then outstanding Letters of Credit (each such Letter of Credit, a “Collateralized Letter of
Credit”) in an amount equal to 102% of the Stated Amount of such Letters of Credit in a manner reasonably acceptable to the Administrative Agent and the respective Issuing Lender and, solely for purposes of determining whether a Compliance
Period exists at such time, the undrawn Stated Amount of such Collateralized Letters of Credit shall be excluded from the calculation of Letter of Credit Outstandings for purposes of calculating the Aggregate Exposure and Excess Availability at such
time. At any time that no Default or Event of Default has occurred and is continuing, the Company may request that the cash collateral provided in respect of the Collateralized Letters of Credit be released and, upon such release, such Letters of
Credit will again be included in the calculation of Letter of Credit Outstandings for all purposes of calculating the Aggregate Exposure and Excess Availability. Furthermore, to the extent that any Borrower thereafter desires to incur Loans
hereunder or have additional Letters of Credit issued hereunder (or increase the Stated Amount of any then outstanding Letter of Credit) as permitted by Section 7.04, all Collateralized Letters of Credit will again be included in the
calculation of Letter of Credit Outstandings for all purposes of calculating the Aggregate Exposure and Excess Availability.
3.03.
Letter of Credit Requests. (a) Whenever a Borrower desires that a Letter of Credit be issued for (i) in the case of a request for a Letter of Credit by a U.S. Borrower, for the joint and several account of the U.S. Borrowers, and
(ii) in the case of a request for a Letter of Credit by a Dutch Borrower, for the joint and several account of the Dutch Borrowers, such Borrower shall give the respective Issuing Lender (with a copy to the Administrative Agent) at least two
Business Days’ (or such shorter period as is acceptable to such Issuing Lender) written notice thereof (including by way of facsimile or electronic mail). Each notice shall be in the form of Exhibit C, appropriately completed (each, a
“Letter of Credit Request”), and shall be accompanied by the respective Issuing Lender’s customary application and documentation, if any, to the extent required by such Issuing Lender.
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(b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by such requesting Borrower to the Lenders that such Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.02 or 3.03. Unless the respective Issuing Lender has received notice from the
Administrative Agent, any Borrower, any other Credit Party or the Required Lenders before it issues a Letter of Credit that one or more of the conditions specified in Section 6 or 7 are not then satisfied, or that the issuance of such Letter of
Credit would violate Section 3.02 or 3.03, then such Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested Letter of Credit for the account of such Borrower in accordance with such Issuing
Lender’s usual and customary practices. Upon the issuance of or modification or amendment to any standby Letter of Credit, each Issuing Lender shall promptly notify the Borrower to be named as account party therein and the Administrative Agent,
in writing of such issuance, modification or amendment and such notice shall be accompanied by a copy of such Letter of Credit or the respective modification or amendment thereto, as the case may be. Promptly after receipt of such notice the
Administrative Agent shall notify the Participants, in writing, of such issuance, modification or amendment. On the first Business Day of each week, each Issuing Lender shall furnish the Administrative Agent with a written (including via facsimile)
report of the daily aggregate outstandings of trade Letters of Credit issued by such Issuing Lender for the immediately preceding week.
3.04. Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such
Issuing Lender shall be deemed to have sold and transferred to each Lender, and each such Lender (in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and
received from such Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Participant’s RL Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations
of the U.S. Borrowers or the Dutch Borrowers, as the case may be, under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders
pursuant to Section 2.13, 2.14, 2.15 or 13.04(b), it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this
Section 3.04 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether
to pay under any Letter of Credit, no Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they
appear to substantially comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit issued by it shall not create for such Issuing
Lender any resulting liability to any Borrower, any other Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined
by a court of competent jurisdiction in a final and non-appealable decision).
(c) In the event that an Issuing Lender makes any payment
under any Letter of Credit issued by it and the U.S. Borrowers or the Dutch Borrowers, as applicable, shall not have reimbursed such amount in full to such Issuing Lender pursuant to Section 3.05(a), such Issuing Lender shall promptly notify
the Administrative Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to such Issuing Lender the amount of such Participant’s RL Percentage of such unreimbursed
payment in U.S. Dollars (or, in the
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case of any unreimbursed payment made in Euros or an Acceptable Foreign Currency, such currency) and in same day funds. If the Administrative Agent so notifies, prior to 2:00 P.M. (New York City
time) on any Business Day, any Participant required to fund a payment under a Letter of Credit, such Participant shall make available to the respective Issuing Lender in U.S. Dollars (or, in the case of any unreimbursed payment made in Euros or an
Acceptable Foreign Currency, such currency) such Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its RL Percentage of the amount of
such payment available to the respective Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such
Issuing Lender at the overnight Federal Funds Rate (or, in the case of any unreimbursed payment made in a currency other than U.S. Dollars, at the respective Issuing Lender’s customary rate for interbank advances) for the first three days and
at the interest rate applicable to U.S. Dollar Denominated Revolving Loans that are maintained as Base Rate Loans for each day thereafter. The failure of any Participant to make available to an Issuing Lender its RL Percentage of any payment
under any Letter of Credit issued by such Issuing Lender shall not relieve any other Participant of its obligation hereunder to make available to such Issuing Lender its RL Percentage of any payment under any Letter of Credit on the date required,
as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to such Issuing Lender such other Participant’s RL Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Lender shall pay to each such Participant which has paid its RL Percentage thereof, in U.S. Dollars (or, in the case of any unreimbursed payment made in Euros or an Acceptable Foreign
Currency, such currency) and in same day funds, an amount equal to such Participant’s share (based upon the proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the
principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(e)
Upon the request of any Participant, each Issuing Lender shall furnish to such Participant copies of any standby Letter of Credit issued by it and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each Issuing Lender with respect to Letters of Credit shall be irrevocable and
not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which the Company or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Participant, or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Company or any Subsidiary of the Company and the beneficiary named in any such Letter of
Credit);
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(iii) any draft, certificate or any other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default, or the failure of any of the other conditions
specified in Section 6 or 7 to be satisfied.
3.05. Agreement to Repay Letter of Credit Drawings. (a) (i) Each U.S.
Borrower, in the case of a Letter of Credit issued for the account of a U.S. Borrower, hereby jointly and severally agrees, and (ii) each Dutch Borrower, in the case of a Letter of Credit issued for the account of a Dutch Borrower, hereby
jointly and severally agrees, in each case, to reimburse each Issuing Lender, by making payment to the Administrative Agent, for the account of the applicable Issuing Bank, in U.S. Dollars (or, in the case of any unreimbursed payment made in Euros
or an Acceptable Foreign Currency, such currency) in immediately available funds at the Payment Office, for any payment or disbursement made by such Issuing Lender under any Letter of Credit issued by it for the account of any U.S. Borrower or any
Dutch Borrower, as applicable (each such amount, so paid until reimbursed by such U.S. Borrower or such Dutch Borrower, as applicable, an “Unpaid Drawing”), not later than one Business Day following receipt by any U.S. Borrower or
any Dutch Borrower, as the case may be, of notice of such payment or disbursement (provided that no such notice shall be required to be given if a Default or an Event of Default under Section 11.05 shall have occurred and be continuing,
in which case the Unpaid Drawing shall be due and payable immediately without presentment, demand, protest or notice of any kind (all of which are hereby waived by the Borrowers to the extent permitted by applicable law)), with interest on the
amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior to 2:00 P.M. (New York City time) on the date of such payment or disbursement from and including the date paid or disbursed to but excluding the date such Issuing
Lender was reimbursed by any U.S. Borrower or any Dutch Borrower, as applicable, at a rate per annum equal to the Base Rate as in effect from time to time plus the Applicable Margin as in effect from time to time for U.S. Dollar
Denominated Revolving Loans that are maintained as Base Rate Loans; provided, however, to the extent such amounts are not reimbursed prior to 2:00 P.M. (New York City time) on the third Business Day following the receipt by any U.S.
Borrower or any Dutch Borrower, as applicable, of notice of such payment or disbursement or following the occurrence of a Default or an Event of Default under Section 11.05, interest shall thereafter accrue on the amounts so paid or disbursed
by such Issuing Lender (and until reimbursed by any U.S. Borrower or any Dutch Borrower, as applicable) at a rate per annum equal to the Base Rate as in effect from time to time plus the Applicable Margin for U.S. Dollar Denominated
Revolving Loans that are maintained as Base Rate Loans as in effect from time to time plus 2%, with such interest to be payable on demand. Amounts paid to the Administrative Agent in accordance with the immediately preceding sentence shall be
promptly disbursed to the applicable Issuing Lender. Each Issuing Lender shall give the applicable U.S. Borrowers or Dutch Borrowers, as the case may be, prompt written notice of each Drawing under any Letter of Credit issued by it for the account
of such U.S. Borrowers or Dutch Borrowers, as the case may be; provided that the failure to give any such notice shall in no way affect, impair or diminish the obligations of any such Borrower to reimburse such Unpaid Drawing. Each Drawing
under any Letter of Credit shall (unless (x) the Company notifies the Administrative Agent in writing to the contrary, (y) the Borrowers are unable to satisfy the conditions precedent to the making of Revolving Loans set forth in
Section 7, or (z) (i) with respect to Drawings under Letters of Credit issued for the account of any U.S. Borrower, the Aggregate U.S. Borrower Exposure at such time exceeds 100% (or, during an Agent Advance Period, 105%) of the U.S.
Borrowing Base at such time, (ii) with respect to Drawings under Letters of Credit issued for the account of any Dutch Borrower, the Aggregate Dutch Borrower Exposure at such time exceeds the 100% (or, during an Agent Advance Period, 105%) of
the
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Dutch Borrowing Base at such time, (iii) the Aggregate Exposure at such time exceeds the Total Revolving Loan Commitment at such time or (iv) during a Reduced Availability Period,
Excess Availability is less than 10% of Availability at such time, in which case the procedures specified above in this Section 3.05 and in Section 3.04 for funding by the Participants shall apply) constitute a request by the applicable
Borrower to the Administrative Agent for a Borrowing of Revolving Loans pursuant to Section 2.03(a) constituting Base Rate Loans (or, at the option of the Administrative Agent and the Swingline Lender in their sole discretion, a Borrowing of
Swingline Loans pursuant to Section 2.03(b)) in the amount of such Drawing, and the date with respect to such Borrowing shall be the date of payment of the relevant Drawing (it being understood that, in each such case, the Administrative Agent
shall notify the Lenders (or the Swingline Lender, as applicable) thereof and the Lenders (or the Swingline Lender, as applicable) shall make available to the Administrative Agent their pro rata portion of such Borrowing (or, in the case of
Swingline Loans, the Swingline Lender will make available the full amount thereof) and the proceeds thereof shall be applied to reimburse the respective Issuing Lender for such Drawing).
(b) The joint and several obligations of the U.S. Borrowers, in the case of a Letter of Credit issued for the account of a U.S. Borrower, or
the Dutch Borrowers, in the case of a Letter of Credit issued for the account of a Dutch Borrower, as the case may be, under this Section 3.05 to reimburse each Issuing Lender with respect to drafts, demands and other presentations for payment
under Letters of Credit issued by it (each, a “Drawing”) (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Company, any other Borrower or any other Subsidiary of the Company may have or have had against any Lender (including in its capacity as an Issuing Lender or as a Participant), including any defense based upon the failure of any
drawing under a Letter of Credit to conform to the terms of the Letter of Credit or any nonapplication or misapplication by the beneficiary of the proceeds of such Drawing; provided that the foregoing shall not be construed to excuse the
Issuing Lender from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Lender’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
(c) If any Lender becomes a Defaulting Lender at any time that any Letter of Credit is outstanding, the U.S. Borrowers or the Dutch
Borrowers, as applicable, shall enter into Letter of Credit Back-Stop Arrangements with the relevant Issuing Lender or Issuing Lenders no later than two Business Days after the date such Lender becomes a Defaulting Lender to the extent required by
Section 2.15(a).
3.06. Increased Costs. If at any time after the Effective Date, the introduction of or any change in any
applicable law, rule, regulation, order, guideline or request or in the interpretation or administration thereof by the NAIC or any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Issuing Lender
or any Participant with any request or directive by the NAIC or by any such Governmental Authority (whether or not having the force of law), shall either (a) impose, modify or make applicable any reserve, deposit, capital adequacy, liquidity or
similar requirement against letters of credit issued by any Issuing Lender or participated in by any Participant, or (b) impose on any Issuing Lender or any Participant any other conditions relating, directly or indirectly, to this Agreement or
any Letter of Credit; and the result of any of the foregoing is to increase the cost to any Issuing Lender or any Participant of issuing, maintaining or participating in any Letter of Credit, or reduce the amount of any sum received or receivable by
any Issuing Lender or any Participant hereunder or reduce the rate of return on its capital with respect to Letters of Credit (except for Taxes and Excluded Taxes), then, within 10 days after the delivery of the certificate referred to below to the
Borrowers by any Issuing Lender or any Participant (a copy of which certificate shall be sent by such
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Issuing Lender or such Participant to the Administrative Agent), the U.S. Borrowers (jointly and severally with respect to U.S. Borrower Obligations) and the Dutch Borrowers (jointly and
severally with respect to Dutch Borrower Obligations) agree to pay to such Issuing Lender or such Participant such additional amount or amounts as will compensate such Issuing Lender or such Participant for such increased cost or reduction in the
amount receivable or reduction on the rate of return on its capital. Any Issuing Lender or any Participant, upon determining that any additional amounts will be payable to it pursuant to this Section 3.06, will give prompt written notice
thereof to the Borrowers, which notice shall include a certificate submitted to the Borrowers by such Issuing Lender or such Participant (a copy of which certificate shall be sent by such Issuing Lender or such Participant to the Administrative
Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts necessary to compensate such Issuing Lender or such Participant; provided that the Borrowers shall not be required to compensate any
Issuing Lender or Participant pursuant to this Section 3.06 for any increased costs or reductions incurred more than 180 days prior to the date that such Issuing Lender or Participant notifies the Company of the change giving rise to such
increased costs or reductions and of such Issuing Lender’s or Participant’s intention to claim compensation therefor; provided, further, that, if the change giving rise to such increased costs or reductions is retroactive,
then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof. The certificate required to be delivered pursuant to this Section 3.06 shall, absent manifest error, be final and conclusive and
binding on the Borrowers.
3.07. Extended Revolving Loan Commitments. (a) If the Initial Maturity Date shall have occurred at
a time when Extended Revolving Loan Commitments are in effect, then such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Lenders to purchase participations therein and to make
payments in respect thereof pursuant to Sections 3.04 and 3.05) under (and ratably participated in by Lenders under the applicable tranche pursuant to) the Extended Revolving Loan Commitments up to an aggregate amount not to exceed the aggregate
principal amount of the unutilized Extended Revolving Loan Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated).
(b) To the extent not reallocated pursuant to clause (a) of this Section 3.07, but without limiting the obligations with respect
thereto, the applicable Borrower shall either (i) provide cash collateral with respect to such Letters of Credit on the Initial Maturity Date in accordance with Section 3.02(b) or (ii) enter into backstop arrangements reasonably
acceptable to the applicable Issuing Lender. If, for any reason, such cash collateral is not provided, such backstop arrangements are not entered into and the reallocation does not occur, the Lenders under the maturing tranche shall continue to be
responsible for their participating interests in the Letters of Credit; provided that, notwithstanding anything to the contrary contained herein, (A) the continuing participations of the Lenders under the maturing tranche shall be
included in the calculation of the Required Lenders (with each such Lender being deemed to have a Revolving Loan Commitment in the amount of such continued participation) and (B) upon any subsequent repayment of the Loans, the reallocation set
forth in Section 3.07(a) shall automatically and concurrently occur to the extent of such repayment.
(c) Except to the extent of
reallocations of participations pursuant to Section 3.07(a), the occurrence of the Initial Maturity Date shall have no effect upon (and shall not diminish) the percentage participations of the Lenders under the Revolving Loan Commitments in any
Letter of Credit issued before the Initial Maturity Date.
3.08. Conflict. In the event of any conflict between the terms hereof
and the terms of any Letter of Credit application required by an Issuing Lender (or any other document, agreement and instrument entered into by an Issuing Lender and any Borrower or in favor of an Issuing Lender and relating to any such Letter of
Credit) or if such application, document, agreement or instrument imposes materially more burdensome representations or covenants than those contained in Section 8, 9 or 10, the terms hereof shall control.
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SECTION 4. Commitment Commission; Fees; Reductions of Commitment.
4.01. Fees. (a) The U.S. Borrowers jointly and severally agree to pay to the Administrative Agent for distribution to each
Non-Defaulting Lender a commitment commission (the “Commitment Commission”) for the period from and including the Effective Date to but excluding the Final Maturity Date (or such earlier date on which the Total Revolving Loan
Commitment has been terminated) computed at a rate per annum equal to the Commitment Commission Percentage of the Unutilized Revolving Loan Commitment of such Non-Defaulting Lender as in effect from time to time. Accrued Commitment Commission shall
be due and payable quarterly in arrears on each Quarterly Payment Date and on the date upon which the Total Revolving Loan Commitment is terminated.
(b) (i) Each U.S. Borrower, in the case of the Letters of Credit issued for the account of a U.S. Borrower, hereby jointly and severally
agrees, and (ii) each Dutch Borrower, in the case of the Letters of Credit issued for the account of a Dutch Borrower, hereby jointly and severally agrees, in each case, to pay to the Administrative Agent for distribution to each Lender (based
on each such Lender’s respective RL Percentage) a fee in respect of each Letter of Credit issued for the account of such U.S. Borrower or such Dutch Borrower, as applicable (the “Letter of Credit Fee”), for the period from and
including the date of issuance of such Letter of Credit to and including the date of termination or expiration of such Letter of Credit, computed at a rate per annum equal to the Applicable Margin as in effect from time to time during such period
with respect to Revolving Loans that are maintained as LIBOR Loans (whether or not any such Revolving Loans are outstanding at such time) on the daily Stated Amount of each such Letter of Credit. Accrued Letter of Credit Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the first day on or after the termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) (i) Each U.S. Borrower, in the case of the Letters of Credit issued for the account of a U.S. Borrower, hereby jointly and severally
agrees, and (ii) each Dutch Borrower, in the case of the Letters of Credit issued for the account of a Dutch Borrower, hereby jointly and severally agrees, in each case, to pay to each Issuing Lender, for its own account, a facing fee in
respect of each Letter of Credit issued by such Issuing Lender for the account of the applicable Borrower (the “Facing Fee”) for the period from and including the date of issuance of such Letter of Credit to and including the date
of termination or expiration of such Letter of Credit, computed at a rate per annum equal to 1/8 of 1% on the daily Stated Amount of such Letter of Credit (but in no event less than $500 per annum for each Letter of Credit). Accrued Facing Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and upon the first day on or after the termination of the Total Revolving Loan Commitment, upon which no Letters of Credit remain outstanding.
(d) (i) Each U.S. Borrower, in the case of the Letters of Credit issued for the account of a U.S. Borrower, hereby jointly and severally
agrees, and (ii) each Dutch Borrower, in the case of the Letters of Credit issued for the account of a Dutch Borrower, hereby jointly and severally agrees, in each case, to pay to each Issuing Lender, for its own account, upon each payment
under, issuance of, or amendment to, any Letter of Credit issued by it for the account of such U.S. Borrower or such Dutch Borrower, as applicable, such amount as shall at the time of such event be the administrative charge and the reasonable
expenses which such Issuing Lender is generally imposing in connection with such occurrence with respect to letters of credit.
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(e) The applicable Borrowers agree to pay to each Agent such fees as may have been, or are
hereafter, agreed to in writing from time to time by the Company or any of its Subsidiaries and such Agent on the basis and to the extent set forth therein.
4.02. Voluntary Termination of Revolving Loan Commitments. (a) Upon at least three Business Days’ prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrowers shall have the right, subject to the requirements of Section 5.02(a), at any time or from time to
time, without premium or penalty to terminate the Total Revolving Loan Commitment in whole, or reduce it in part, pursuant to this Section 4.02(a), in an integral multiple of $10,000,000 in the case of partial reductions to the Total Revolving
Loan Commitment; provided that (i) each such reduction shall apply proportionately to permanently reduce the Revolving Loan Commitment of each Lender and (ii) in the case of any partial reduction, after giving effect to such
reduction (x) the aggregate amount of the Letter of Credit Outstandings shall not exceed the Maximum Letter of Credit Amount (for this purpose, using the U.S. Dollar Equivalent of amounts denominated in Euros or any Acceptable Foreign
Currency) and (y) the aggregate principal amount of Swingline Loans then outstanding shall not exceed the Maximum Swingline Amount and (iii) in the case of any termination of the Total Revolving Loan Commitment in whole, the applicable
Borrower or Borrowers shall have provided cash collateral to the respective Issuing Lender or Lenders in an amount equal to 102% of the undrawn Stated Amount of all outstanding Letters of Credit in a manner reasonably acceptable to the respective
Issuing Lender. Any such notice of termination delivered in connection with a refinancing of all or part of this Agreement or any other transaction may be, if so expressly stated to be, conditional upon the consummation of such refinancing or other
transaction and may be revoked by the Borrowers in the event such refinancing or other transaction is not consummated.
(b) In the event
of refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as (and to the extent) provided in Section 13.12(b), the
Borrowers shall have the right, subject to obtaining the consents required by Section 13.12(b) with the express written consent of the Required Lenders, upon three Business Days’ prior written notice to the Administrative Agent at the
Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), to terminate the entire Revolving Loan Commitment of such Lender, so long as all Loans, together with accrued and unpaid interest, Fees and all
other amounts, owing to such Lender (including all amounts, if any, owing pursuant to Section 2.11) are repaid concurrently with the effectiveness of such termination (at which time Schedule 1.01(a) shall be deemed modified to reflect such
changed amounts) and such Lender’s RL Percentage of all outstanding Letters of Credit is cash collateralized in a manner reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders for so long as such Letter of Credit
Exposure is outstanding (it being understood that, for purposes of clarity, at the request of the Company, upon a determination by the Administrative Agent or the respective Issuing Lenders that there exists cash collateral in excess of such
Lender’s RL Percentage of such Letter of Credit Exposure, such excess cash collateral may be returned to the applicable Borrowers so long as no Default or Event of Default then exists or would result therefrom), and at such time such Lender
shall no longer constitute a “Lender” for purposes of this Agreement, except with respect to indemnifications under this Agreement (including Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such repaid
Lender.
4.03. Mandatory Reduction of Commitments. The Total Revolving Loan Commitment (and the Revolving Loan Commitment of each
Lender) shall terminate in its entirety upon the Final Maturity Date.
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SECTION 5. Prepayments; Payments; Taxes.
5.01. Voluntary Prepayments. (a) Each Borrower shall have the right to prepay the Loans made to such Borrower, without premium or
penalty, in whole or in part at any time and from time to time on the following terms and conditions: (i) such Borrower shall give the Administrative Agent prior to 1:00 P.M. (New York City time) at the Notice Office (A) at least one
Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Base Rate Loans (or same day notice in the case of a prepayment of Swingline Loans) and (B) at least three Business Days’
prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay LIBOR Loans, which notice (in each case) shall specify whether Revolving Loans or Swingline Loans shall be prepaid, the amount of such prepayment and
the Types of Loans to be prepaid and, in the case of LIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans were made, and which notice the Administrative Agent shall, except in the case of a prepayment of Swingline
Loans, promptly transmit to each of the Lenders; (ii) (x) each partial prepayment of Revolving Loans pursuant to this Section 5.01(a) shall be in an aggregate principal amount of at least $250,000 (or the U.S. Dollar Equivalent
thereof in the case of Euro Denominated Loans or Foreign Currency Denominated Loans or, in each case, such lesser amount as is acceptable to the Administrative Agent) and (y) each partial prepayment of Swingline Loans pursuant to this
Section 5.01(a) shall be in an aggregate principal amount of at least $100,000 (or such lesser amount as is acceptable to the Administrative Agent in any given case); provided that if any partial prepayment of LIBOR Loans made pursuant
to any Borrowing shall reduce the outstanding principal amount of LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing may not be continued as a Borrowing of LIBOR
Loans (and same shall automatically be converted into a Borrowing of Base Rate Loans) and any election of an Interest Period with respect thereto given by the applicable Borrower shall have no force or effect; and (iii) each prepayment pursuant
to this Section 5.01(a) in respect of any Revolving Loans made pursuant to a Borrowing shall be applied pro rata among such Revolving Loans; provided that at the Borrower’s election in connection with any prepayment of Revolving
Loans pursuant to this Section 5.01(a), such prepayment shall not, so long as no Default or Event of Default then exists, be applied to any Revolving Loan of a Defaulting Lender. Any such notice of prepayment delivered in connection with a
refinancing of all or part of this Agreement or any other transaction may be, if so expressly stated to be, conditional upon the consummation of such refinancing or other transaction and may be revoked by the Borrowers in the event such refinancing
or other transaction is not consummated.
(b) In the event of certain refusals by a Lender to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as (and to the extent) provided in Section 13.12(b), the Borrowers may, upon three Business Days’ prior written notice to
the Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), repay all Revolving Loans of such Lender, together with accrued and unpaid interest, Fees and all other amounts
then owing to such Lender (including all amounts, if any, owing pursuant to Section 2.11) in accordance with, and subject to the requirements of Section 13.12(b), so long as (i) in the case of the repayment of Revolving Loans of any
Lender pursuant to this clause (b), (A) the Revolving Loan Commitment of such Lender is terminated concurrently with such repayment pursuant to Section 4.02(b) (at which time Schedule 1.01(a) shall be deemed modified to reflect the changed
Revolving Loan Commitments) and (B) such Lender’s RL Percentage of all outstanding Letters of Credit is cash collateralized in a manner reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders for so long as
such Letter of Credit Exposure is outstanding (it being understood that, for purposes of clarity, at the request of the Company, upon a determination by the Administrative Agent or the respective Issuing Lenders that there exists cash collateral in
excess of such Lender’s RL Percentage of such Letter of Credit Exposure, such excess cash collateral may be returned to the applicable Borrowers so long as no Default or Event of Default then exists or would result therefrom) and (ii) the
consents, if any, required by Section 13.12(b) in connection with the repayment pursuant to this clause (b) shall have been obtained.
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5.02. Mandatory Repayments; Cash Collateralization. (a) (i) On any day on which any
one or more of the following conditions shall exist, the applicable Borrowers shall repay the applicable Loans and/or cash collateralize outstanding Letters of Credit (in U.S. Dollars or, to the extent any Letter of Credit is denominated in Euros or
an Acceptable Foreign Currency, such currency) pursuant to clause (iii) below in such amount as may be required to cause such conditions to cease to exist on such day:
(u) the Aggregate U.S. Borrower Exposure at such time exceeds 100% (or, during an Agent Advance Period, 105%) of the U.S.
Borrowing Base at such time;
(v) the Aggregate Dutch Borrower Exposure at such time exceeds 100% (or, during an Agent
Advance Period, 105%) of the Dutch Borrowing Base at such time;
(w) the Aggregate Exposure at such time exceeds the Total
Revolving Loan Commitment at such time;
(x) during a Reduced Availability Period, Excess Availability is less than 10% of
the Availability at such time;
(y) the aggregate Swingline Loan Exposure at such time exceeds the Maximum Swingline
Amount; and/or
(z) the aggregate 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 exceeds the Maximum Letter of Credit Amount.
(ii) In connection with any repayment and/or cash collateralization required pursuant to Section 5.02(a)(i) on any day,
the Borrowers shall first prepay the Loans in the following order:
(A) in the case of a repayment and/or cash
collateralization required pursuant to Section 5.02(a)(i)(u) on any day, the U.S. Borrowers shall repay on such day the principal of outstanding U.S. Borrower Swingline Loans and, after all U.S. Borrower Swingline Loans have been repaid in full
or if no U.S. Borrower Swingline Loans are outstanding, U.S. Borrower Revolving Loans, in each case in such amount as may be required to cause the conditions giving rise to such mandatory repayment requirement to cease to exist on such day,
(B) in the case of a repayment and/or cash collateralization required pursuant to Section 5.02(a)(i)(v) on any day, the
Dutch Borrowers shall repay on such day the principal of outstanding Dutch Borrower Swingline Loans and, after all Dutch Borrower Swingline Loans have been repaid in full or if no Dutch Borrower Swingline Loans are outstanding, Dutch Borrower
Revolving Loans, in each case in such amount as may be required to cause the conditions giving rise to such mandatory repayment requirement to cease to exist on such day,
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(C) in the case of a repayment and/or cash collateralization required pursuant to
Section 5.02(a)(i)(w) or (x) on any day, each respective Borrower shall repay on such day the principal of its outstanding Swingline Loans and, after all Swingline Loans extended to such Borrower have been repaid in full or if no Swingline
Loans are outstanding, its respective Revolving Loans, in each case in such amount as may be required to cause the conditions giving rise to such mandatory repayment requirement to cease to exist on such day, and
(D) in the case of a repayment and/or cash collateralization required pursuant to Section 5.02(a)(i)(y) on any day, each
respective Borrower shall repay on such day the principal of its outstanding Swingline Loans in such amount as may be required to cause the conditions giving rise to such mandatory repayment requirement to cease to exist on such day.
(iii) If after giving effect to the prepayment of all Loans and in the circumstances described in Section 5.02(a)(i)(z),
the conditions set forth in Section 5.02(a)(i) continue to exist, the respective Borrowers shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to 100% of the amount of such
excess (or, in the case of a termination of the Total Revolving Loan Commitment, 102% of the amount of such excess), such cash and/or Cash Equivalents to be held as security for all Obligations of the Borrowers to the Issuing Lenders and the Lenders
hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent (and which cash and/or Cash Equivalents may, without limiting the Borrowers’ obligations in respect thereof, be
paid to and applied by the Issuing Lenders and/or the Lenders in satisfaction of the Obligations of the applicable Borrowers to the Issuing Lenders and/or Lenders in respect of any Drawings made under any Letter of Credit issued for the account of
such Borrower on the maturity date thereof). Notwithstanding the foregoing, in no event will cash or Cash Equivalents of any Dutch Borrower be security for U.S. Borrower Obligations.
(b) With respect to each repayment of Loans required by this Section 5.02, the Borrowers may designate the Types of Loans which are to
be repaid and, in the case of LIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans were made (subject, in the case of any repayment and/or cash collateralization required by Section 5.02(a), to the order of
priorities set forth therein); provided that: (i) repayments of LIBOR Loans pursuant to this Section 5.02 made on a day other than the last day of an Interest Period applicable thereto shall be subject to Section 2.11;
(ii) if any repayment of LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be
automatically converted into a Borrowing of Base Rate Loans and (iii) each repayment of any Revolving Loans made pursuant to a Borrowing shall be applied pro rata among the Lenders holding such Revolving Loans. In the absence of a designation
by a Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, (i) all then outstanding Swingline Loans shall be
repaid in full on the earlier of (x) the fifth Business Day following the date the incurrence of such Swingline Loans and (y) the Swingline Expiry Date and (ii) all then outstanding Revolving Loans shall be repaid in full on the Final
Maturity Date.
5.03. Method and Place of Payment. (a) Except as otherwise specifically provided herein, all payments under
this Agreement and under any Note shall be made to the Administrative Agent for the account of the Lender or Lenders entitled thereto not later than 2:00 P.M. (New York City time) on the date when due and shall be made in (x) U.S. Dollars (or,
in the case of any Unpaid Drawings denominated in Euros or an Acceptable Foreign Currency, such currency) in immediately available funds
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at the Payment Office in respect of any obligation of the Borrowers under this Agreement except as otherwise provided in the immediately following clauses (y) and (z), (y) Euros in
immediately available funds at the Payment Office, if such payment is made in respect of (i) principal of, or interest on, Euro Denominated Loans or (ii) any increased costs, indemnities or other amounts owing with respect to Euro
Denominated Loans (including pursuant to Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06) or (z) the applicable Acceptable Foreign Currency in immediately available funds at the Payment Office, if such payment is made in respect of
(i) principal of, or interest on, Foreign Currency Denominated Loans or (ii) any increased costs, indemnities or other amounts owing with respect to Foreign Currency Denominated Loans (including pursuant to Sections 2.10, 2.11, 3.06, 5.04,
12.06, 13.01 and 13.06). Whenever any payment to be made hereunder or under any Note shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during such extension.
(b) (i) Each U.S. Borrower shall, along
with the Collateral Agent, and each of those banks (the “U.S. Collection Banks”) in which each Core U.S. Deposit Account is maintained by each such U.S. Borrower, enter into on or prior to the 90th day following the Effective Date (in each case, as such date may be extended from time to time by the Administrative Agent in its sole discretion) and thereafter maintain separate Cash Management
Control Agreements in respect of each such Core U.S. Deposit Account. (ii) Each U.S. Borrower shall instruct all Account Debtors of such U.S. Borrower to remit all payments in U.S. Dollars to the applicable “P.O. Boxes” or
“Lockbox Addresses” of the applicable U.S. Collection Bank (or to remit such payments to the applicable U.S. Collection Bank by electronic settlement) with respect to all Accounts of such Account Debtor, which remittances shall be
collected by the applicable U.S. Collection Bank and deposited into one or more deposit accounts with the Administrative Agent or a financial institution reasonably acceptable to the Administrative Agent (each a “Core U.S. Deposit
Account” and collectively, the “Core U.S. Deposit Accounts”); provided that on and after the 90th day following the Effective Date (as such date may be extended
from time to time by the Administrative Agent in its sole discretion) such remittances may only be deposited into Core U.S. Deposit Accounts that are subject to Cash Management Control Agreements. (iii) All amounts received in U.S. Dollars by
any U.S. Borrower and any U.S. Collection Bank in respect of any Account of an Account Debtor of any U.S. Borrower shall upon receipt be deposited into a Core U.S. Deposit Account; provided that on and after the 90th day following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion) such amounts may only be deposited into Core U.S. Deposit
Accounts that are subject to Cash Management Control Agreements.
(c) (i) Each Dutch Borrower shall, along with the Collateral Agent, and
each of those banks (the “Dutch Collection Banks”) in which each Core Dutch Deposit Account are maintained by each such Dutch Borrower, enter into on or prior to the 90th day
following the Effective Date (in each case, as such date may be extended from time to time by the Administrative Agent in its sole discretion) and thereafter maintain separate Cash Management Control Agreements in respect of each such Core Dutch
Deposit Account. (ii) Each Dutch Borrower shall instruct all Account Debtors of such Dutch Borrower to remit all payments in U.S. Dollars or Euros to the applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Dutch
Collection Bank (or to remit such payments to the applicable Dutch Collection Bank by electronic settlement) with respect to all Accounts of such Account Debtor, which remittances shall be collected by the applicable Dutch Collection Bank and
deposited into one or more deposit accounts with the Administrative Agent or a financial institution reasonably acceptable to the Administrative Agent (each a “Core Dutch Deposit Account” and collectively, the “Core Dutch
Deposit Accounts”); provided that on and after the 90th day following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole
discretion) such remittances may only be deposited into Core Dutch Deposit Accounts that are subject to Cash Management Control Agreements. (iii) All amounts received in U.S. Dollars or Euros by any
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Dutch Credit Party and any Dutch Collection Bank in respect of any Account of an Account Debtor of any Dutch Credit Party, shall upon receipt be deposited into a Core Dutch Deposit Account;
provided that on and after the 90th day following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion) such amounts may
only be deposited into Core Dutch Deposit Accounts that are subject to Cash Management Control Agreements.
(d) Each Cash Management
Control Agreement relating to a Core U.S. Deposit Account shall (unless otherwise agreed by the Administrative Agent in its sole discretion) include provisions that allow, during any Dominion Period, for all collected amounts held in such Core U.S.
Deposit Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to one or more accounts maintained by the Administrative
Agent at DBNY (or if DBNY is not the Administrative Agent, at the institution designated by such successor Administrative Agent) or an affiliate thereof (each, a “DB U.S. Account”). Subject to the terms of the respective Security
Document, all amounts received in a DB U.S. Account shall be applied (and allocated) by the Administrative Agent on a daily basis in the following order (in each case, to the extent the Administrative Agent has actual knowledge of the amounts owing
or outstanding as described below): (i) first, to the payment (on a ratable basis) of any outstanding Expenses actually due and payable to the Administrative Agent and the Collateral Agent under any of the Credit Documents and to repay
or prepay outstanding U.S. Borrower Loans advanced by the Administrative Agent on behalf of the Lenders pursuant to Section 2.01(e); (ii) second, to the extent all amounts referred to in preceding clause (i) have been paid in
full, to pay (on a ratable basis) all outstanding Expenses actually due and payable to each Issuing Lender under any of the Credit Documents and to repay all outstanding Unpaid Drawings in respect of Letters of Credit issued for the account of a
U.S. Borrower and all interest thereon; (iii) third, to the extent all amounts referred to in preceding clauses (i) and (ii) have been paid in full, to pay (on a ratable basis) all accrued and unpaid interest actually due and
payable on the U.S. Borrower Loans and all accrued and unpaid Fees actually due and payable by any U.S. Borrower to the Administrative Agent, the Issuing Lenders and the Lenders under any of the Credit Documents; (iv) fourth, to the
extent all amounts referred to in preceding clauses (i) through (iii), inclusive, have been paid in full, to repay the outstanding principal of U.S. Borrower Swingline Loans (whether or not then due and payable); (v) fifth, to the
extent all amounts referred to in preceding clauses (i) through (iv), inclusive, have been paid in full, to repay the outstanding principal of U.S. Borrower Revolving Loans (whether or not then due and payable); (vi) sixth, to the
extent all amounts referred to in preceding clauses (i) through (v), inclusive, have been paid in full, to cash collateralize all outstanding Letters of Credit issued for the account of a U.S. Borrower (such cash collateral to be held by the
Administrative Agent in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent and applied to the Obligations of the U.S. Borrowers to the Issuing Lenders and/or Lenders in respect of any
Drawings made under any such Letters of Credit), provided, however, that such amounts shall be released to the U.S. Borrowers from time to time so long as no Default or Event of Default then exists or would result therefrom and none of
the conditions in clause (i) of Section 5.02(a) then exist or would result from any such release; (vii) seventh, to the extent all amounts referred to in preceding clauses (i) through (vi), inclusive, have been paid in
full, to pay (on a ratable basis) all other outstanding Obligations of any U.S. Borrower then due and payable to the Administrative Agent, the Collateral Agent and the Lenders under any of the Credit Documents; and (viii) eighth, to the
extent all amounts referred to in preceding clauses (i) through (vii), inclusive, have been paid in full and so long as no Default or Event of Default then exists, to be returned to the U.S. Borrowers.
(e) Each Cash Management Control Agreement relating to a Core Dutch Deposit Account shall (unless otherwise agreed by the Administrative
Agent in its sole discretion) include provisions that allow, during any Dominion Period, for all collected amounts held in such Core Dutch
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Deposit Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to
one or more accounts maintained by the Administrative Agent at DBNY (or if DBNY is not the Administrative Agent, at the institution designated by such successor Administrative Agent) or an affiliate thereof (each a “DB Netherlands
Account”). Subject to the terms of the respective Security Document, all amounts received in a DB Netherlands Account shall be applied (and allocated) by the Administrative Agent on a daily basis in the following order (in each case, to the
extent the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below): (i) first, to the payment (on a ratable basis) of any outstanding Expenses owed by the Dutch Credit Parties actually due and
payable to the Administrative Agent and the Collateral Agent under any of the Credit Documents and to repay or prepay outstanding Dutch Borrower Loans advanced by the Administrative Agent on behalf of the Lenders pursuant to Section 2.01(e);
(ii) second, to the extent all amounts referred to in preceding clause (i) have been paid in full, to pay (on a ratable basis) all outstanding Expenses owed by the Dutch Credit Parties actually due and payable to each Issuing Lender
under any of the Credit Documents and to repay all outstanding Unpaid Drawings in respect of Letters of Credit issued for the account of a Dutch Borrower and all interest thereon; (iii) third, to the extent all amounts referred to in
preceding clauses (i) and (ii) have been paid in full, to pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Dutch Borrower Loans and all accrued and unpaid Fees actually due and payable by any Dutch
Borrower to the Administrative Agent, the Issuing Lenders and the Lenders under any of the Credit Documents; (iv) fourth, to the extent all amounts referred to in preceding clauses (i) through (iii), inclusive, have been paid in
full, to repay the outstanding principal of Dutch Borrower Swingline Loans (whether or not then due and payable); (v) fifth, to the extent all amounts referred to in preceding clauses (i) through (iv), inclusive, have been paid in
full, to repay the outstanding principal of Dutch Borrower Revolving Loans (whether or not then due and payable); (vi) sixth, to the extent all amounts referred to in preceding clauses (i) through (v), inclusive, have been paid in
full, to cash collateralize (on a ratable basis) all outstanding Letters of Credit issued for the account of a Dutch Borrower (such cash collateral to be held by the Administrative Agent in a cash collateral account to be established by, and under
the sole dominion and control of, the Administrative Agent and applied to the Obligations of the Dutch Borrowers to the Issuing Lenders and/or Lenders in respect of any Drawings made under any such Letters of Credit), provided,
however, that such amounts shall be released to the Dutch Borrowers from time to time so long as no Default or Event of Default then exists or would result therefrom and none of the conditions in clause (i) of Section 5.02(a) then
exist or would result from any such release; (vii) seventh, to the extent all amounts referred to in preceding clauses (i) through (vi), inclusive, have been paid in full, to pay (on a ratable basis) all other outstanding
Obligations of any Dutch Borrower then due and payable to the Administrative Agent, the Collateral Agent and the Lenders under any of the Credit Documents; and (viii) eighth, to the extent all amounts referred to in preceding clauses
(i) through (vii), inclusive, have been paid in full and so long as no Default or Event of Default then exists, to be returned to the Dutch Borrowers.
(f) Without limiting the provisions set forth in Section 13.15, the Administrative Agent shall maintain accounts on its books in the
name of each Borrower (collectively, the “Credit Account”) in which each Borrower will be charged with all loans and advances made by the Lenders to the respective Borrower for the respective Borrower’s account, including the
Loans, the Letter of Credit Outstandings, and the Fees, Expenses and any other Obligations relating thereto. Each Borrower will be credited, in accordance with this Section 5.03, with all amounts received by the Lenders from such Borrower or
from others for its account, including, as set forth above, all amounts received by the Administrative Agent and applied to the Obligations. In no event shall prior recourse to any Accounts or other Collateral be a prerequisite to the Administrative
Agent’s right to demand payment of any Obligation upon its maturity. Further, the Administrative Agent shall have no obligation whatsoever to perform in any respect any of the Borrowers’ or other Credit Parties’ contracts or
obligations relating to the Accounts.
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5.04. Net Payments. (a) All payments made by the Borrowers and the other Credit
Parties hereunder and under any other Credit Document will be made without setoff, counterclaim or other defense. Except as provided in Section 5.04(b), and except as required by applicable law, all such payments will be made free and clear of,
and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding (i) any tax or withholding on account of tax imposed on or measured by the net income or net profits of a Lender or the Administrative Agent (as applicable) and any franchise taxes
and branch profits taxes imposed pursuant to the laws of the jurisdiction in which it is resident or organized or the jurisdiction in which the principal office or applicable lending office of such Lender or the Administrative Agent (as applicable)
is located or any political subdivision thereof or therein, or any tax imposed as a result of a present or former connection between such Lender or the Administrative Agent (as applicable) and the jurisdiction imposing such tax (other than
connections arising only from such Lender or the Administrative Agent (as applicable) having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged
in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document), (ii) in the case of a Lender, any U.S. federal or Netherlands withholding tax that is imposed on amounts
payable to such Lender at the time such Lender becomes a party hereto (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from such U.S. Borrower with respect to such withholding tax pursuant to Section 5.04(a), (iii) taxes attributable to a Lender’s failure to comply with Section 5.04(e) and (iv) any
U.S. federal withholding tax imposed under FATCA (subparagraphs (i) through (iv) together, “Excluded Taxes”)) and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the respective Borrower
(and any other Credit Party making the respective payment or which has guaranteed the obligations of the relevant Borrower) agrees to pay the full amount of such Taxes, including Taxes on such additional amounts paid pursuant to this
Section 5.04(a) as may be necessary so that, after making such withholding or deduction for or on account of any Taxes, each payment of amounts due under this Agreement will not be less than the amount that would have been paid if no such Taxes
had been withheld or deducted. The respective Borrower (or other Credit Party) will, upon the Administrative Agent’s written request, furnish to the Administrative Agent, within 45 days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by such Borrower (or other Credit Party) or other evidence of payment reasonably satisfactory to the Administrative Agent.
(b) Subject to Section 14.07, the U.S. Borrowers (jointly and severally) or the Dutch Borrowers (jointly and severally), as applicable,
agree (and the applicable Subsidiary Guarantors agree) to timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Subject to Section 14.07, the U.S. Borrowers (jointly and severally) or the Dutch Borrowers (jointly and severally) shall, as
applicable, agree (and the applicable Subsidiary Guarantors agree) to indemnify each Lender or the Administrative Agent, as the case may be, within 10 days after demand therefor, for the full amount of any Taxes (including Taxes imposed or asserted
on or attributable to amounts payable under this Section) payable or paid by such Lender or required to
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be withheld or deducted from a payment to such Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Administrative Agent,
within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of Credit
Parties, subject to Section 14.07, to do so), (ii) any taxes attributable to such Lender’s failure to comply with the provisions of Section 13.04(e) relating to the maintenance of a Participant Register and (iii) any
Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each
Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any
amount due to the Administrative Agent under this clause (d).
(e) (i) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments made under any Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and
executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company
or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 5.04(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost
or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the
generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall
deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent),
executed originals of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender
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becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party
(x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding
tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E establishing an
exemption from, or reduction of, U.S. federal withholding tax pursuant to the “business profits” or “other income” article of such tax treaty;
(ii) executed originals of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c)
of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the
Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed
originals of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E; or
(iv) to the extent a
Foreign Lender is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, a U.S. Tax
Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of
each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon
the reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax, duly completed, together
with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
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(D) if a payment made to a Lender under any Credit Document would be subject to
U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Company and the Administrative Agent at the time or times prescribed by law such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) as may be necessary for the Company and
the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for
purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if
any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to
do so.
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes as to
which it has been indemnified by a Borrower or with respect to which a Borrower has paid additional amounts pursuant to Section 5.04(a), it shall pay to such Borrower an amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by such Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest
(other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided that the U.S. Borrowers (on a joint and several basis) and the Dutch Borrowers (on a
joint and several basis), as the case may be, upon the request of the Administrative Agent or such Lender, agree to repay the amount paid over to any such Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction
or any political subdivision or taxing authority thereof) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such jurisdiction or any political subdivision or taxing
authority thereof; provided, further, that no Borrower shall be required to repay the Administrative Agent or such Lender an amount in excess of the amount paid over by such party to any such Borrower pursuant to this
Section 5.04(f). This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Company, any other
Borrower, any other Credit Party or any other Person. Notwithstanding anything to the contrary in this Section 5.04(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this
Section 5.04(f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.
SECTION 6. Conditions Precedent to Credit Events on the Effective Date. The occurrence of the Effective Date and the obligation of each
Lender to make Loans, and the obligation of each Issuing Lender to issue Letters of Credit, on the Effective Date, are subject to the satisfaction of the following conditions:
6.01. Effective Date; Notes. On or prior to the Effective Date, (a) this Agreement shall have been executed and delivered as
provided in Section 13.10, (b) the Disclosure Letter shall have been delivered by the Company to the Administrative Agent and (c) there shall have been delivered to the Administrative Agent for the account of the Lenders that have
requested same, the appropriate Revolving
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Notes executed by the appropriate Borrowers and if requested by the Swingline Lender, the appropriate Swingline Notes executed by the appropriate Borrowers, in each case, in the amount, maturity
and as otherwise provided herein.
6.02. Officer’s Certificate. On the Effective Date, the Administrative Agent shall have
received a certificate in the form of Exhibit E-1, dated the Effective Date and signed on behalf of the Company by an Authorized Officer of the Company, certifying on behalf of the Company that all of the conditions in Sections 6.05, 6.13(b) and
7.01 have been satisfied on such date.
6.03. Opinions of Counsel. On the Effective Date, the Administrative Agent shall have
received (a) from Wilson Sonsini Goodrich & Rosati, 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 Effective Date covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request, (b) from DLA Piper Nederland N.V., special Dutch
counsel to the Dutch 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 Effective Date covering such
matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request, and (c) without duplication, from such local counsel, reasonably satisfactory to the Administrative Agent, in each jurisdiction where a
U.S. Credit Party is “located” for purposes of Section 9-307 of the UCC and/or organized, in each case, 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 Effective Date covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.
6.04. Company Documents; Proceedings; etc. (a) On the Effective Date, the Administrative Agent shall have received a certificate
from each Credit Party, dated the Effective Date, signed by an Authorized Officer of such Credit Party (or, with respect to Tesla B.V., its directors), and, if signed by an Authorized Officer of such Credit Party, attested to by another Authorized
Officer of such Credit Party, in the form of Exhibit E-2 (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), as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such certificate (including, with respect to each Dutch Credit Party, if applicable,
an unconditional positive, written advice from any works council in relation to the transactions contemplated by this Agreement and any other document required for compliance with the Dutch Works Council Act), and each of the foregoing shall be in
form and substance reasonably acceptable to the Administrative Agent.
(b) On the Effective Date, all Business and legal proceedings and
all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Credit Documents shall be reasonably satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall
have received all information and copies of all documents and papers, including records of Business proceedings, governmental approvals, good standing certificates and bring-down facsimiles or other electronic
transmission, if any, which the Administrative Agent reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper Authorized Officers or Governmental Authorities.
6.05. Adverse Change; Approvals. (a) Since December 31, 2014, nothing shall have occurred, either individually or in the
aggregate, which has had, or could reasonably be expected to have a Material Adverse Effect.
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(b) On or prior to the Effective Date, all necessary governmental (domestic and foreign) and
material third-party approvals and/or consents in connection with the Transaction and the granting of Liens under the Credit Documents shall have been obtained and remain in effect, and all applicable waiting periods with respect thereto shall have
expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of the Transaction. On the Effective Date, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon the Transaction.
6.06. [Reserved].
6.07.
Guaranty. On the Effective Date, (a) each Dutch Guarantor shall have duly authorized, executed and delivered the Dutch Guaranty in the form of Exhibit G-1 and (b) each U.S. Guarantor shall have duly authorized, executed and
delivered the U.S. Guaranty in the form of Exhibit G-2, and each Guaranty shall be in full force and effect.
6.08. [Reserved].
6.09. Security Agreement. On the Effective Date, (a) each Dutch Credit Party shall have duly authorized, executed and
delivered the Dutch Security Agreements in the form of Exhibit I-1, I-2 and I-3 and (b) each U.S. Credit Party and each Dutch Credit Party shall have duly authorized, executed and delivered the U.S. Security Agreement in the form of Exhibit
I-4, in each case covering all of each applicable Credit Party’s Security Agreement Collateral, together with:
(a) proper financing
statements (Form UCC-1 or the equivalent) for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect the security interests
purported to be created by each Security Agreement;
(b) delivery of all promissory notes and stock certificates required to be delivered
to the Collateral Agent pursuant to each Security Agreement, together with undated instruments of transfer with respect thereto endorsed in blank;
(c) delivery of (A) 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 (or foreign equivalent) of any Credit Party 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, and (B) UCC security termination statements (or similar documents)
duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in
respect of Permitted Liens);
(d) confirmation that arrangements have been made by the Administrative Agent’s counsel for all other
recordings and filings of, or with respect to, each Security Agreement as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect and protect the security interests intended to be created by each Security
Agreement; and
(e) evidence that all other actions required to be taken under each Security Agreement on the Effective Date to perfect
and protect the security interests purported to be created by each Security Agreement have been taken, and each Security Agreement shall be in full force and effect.
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6.10. Financial Statements. On or prior to the Effective Date, the Administrative Agent
shall have received true and correct copies of the financial statements referred to in Section 8.05(a), which financial statements shall be in form and substance reasonably satisfactory to the Administrative Agent.
6.11. Solvency Certificate; Insurance Certificates. On the Effective Date, the Administrative Agent shall have received:
(a) a solvency certificate from the chief financial officer of the Company in the form of Exhibit J; and
(b) certificates of insurance complying with the requirements of Section 9.03 for the business and properties of the Company and its
Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and naming the Collateral Agent as an additional insured and/or as lender loss payee, as applicable, and, to the extent obtainable after use of commercially
reasonable efforts, stating that such insurance shall not be canceled or materially revised without at least 30 days’ (or at least 10 days in the case of nonpayment of premium) prior written notice by the insurer to the Collateral Agent.
6.12. Fees, Expenses. On the Effective Date, the Borrowers shall have paid to the Arrangers and the Agents (and their relevant
affiliates) and each Lender all costs, duties, fees and expenses (including reasonable legal fees and expenses and all expenses of any collateral appraiser and any field examiner) and other compensation contemplated hereby or separately agreed in
writing payable to the Arrangers or the Agents (and/or their relevant affiliates) or such Lender to the extent then due and invoiced at least one Business Day prior to the Effective Date.
6.13. Initial Borrowing Base Certificate; Outstanding Indebtedness. (a) On the Effective Date, the Administrative Agent shall have
received the initial Borrowing Base Certificate meeting the requirements of Section 9.01(h).
(b) On the Effective Date and after
giving effect to the Transaction (and the Credit Events hereunder on such date), the Company and its Subsidiaries shall have no outstanding Indebtedness, Contingent Obligations or Preferred Equity, except (x) for Indebtedness outstanding under
to this Agreement, (y) the Existing Convertible Notes and (z) such existing Indebtedness and Contingent Obligations as shall be permitted under Section 10.04.
6.14. Appraisals; Field Examinations. On or prior to the Effective Date, the Company shall have provided to the Agents (i) an
Acceptable Appraisal in respect of (x) the Inventory of the Borrowers and (y) the Eligible Machinery and Equipment of the U.S. Borrowers and (ii) an Acceptable Field Examination in respect of the Inventory and the Accounts and the
related accounts of the Borrowers. Notwithstanding anything to the contrary contained in this Section 6.14, to the extent the Acceptable Field Examination required by clause (ii) above in respect of Accounts cannot be delivered on or prior
to the Effective Date, the delivery of such Acceptable Field Examination shall not be a condition precedent but instead shall be required to be delivered in accordance with Section 9.12(h).
6.15. Patriot Act. Not later than the fifth Business Day prior to the Effective Date, the Agents and the Lenders shall have received
from the Credit Parties all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
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In determining the satisfaction of the conditions specified in this Section 6, (x) to
the extent any item is required to be satisfactory to any Lender or Agent (other than the Administrative Agent), such item shall be deemed satisfactory to each Lender and each Agent (other than the Administrative Agent) which has not notified the
Administrative Agent in writing prior to the occurrence of the Effective Date that the respective item or matter does not meet its satisfaction and (y) in determining whether any Lender or Agent (other than the Administrative Agent) is aware of
any fact, condition or event that has occurred and which would reasonably be expected to have a Material Adverse Effect, each Lender and each Agent (other than the Administrative Agent) which has not notified the Administrative Agent in writing
prior to the occurrence of the Effective Date of such fact, condition or event shall be deemed not to be aware of any such fact, condition or event on the Effective Date. Upon the Administrative Agent’s good faith determination that the
conditions specified in this Section 6 have been met (after giving effect to the preceding sentence), then the Effective Date shall be deemed to have occurred regardless of any subsequent determination that one or more of the conditions thereto
had not been met (although the occurrence of the Effective Date shall not release the Company or any other Borrower from any liability for failure to satisfy one or more of the applicable conditions contained in this Section 6).
SECTION 7. Conditions Precedent to All Credit Events. The obligation of each Lender to make Loans (including Loans made on the
Effective Date), and the obligation of each Issuing Lender to issue Letters of Credit (including Letters of Credit issued on the Effective Date), are subject, at the time of the Effective Date and at the time of each Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
7.01. No Default; Representations and Warranties. At the
time of each such Credit Event and also after giving effect thereto (a) there shall exist no Default or Event of Default and (b) all representations and warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such representations and warranties had been made on the date of such Credit Event (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 as to “materiality,” “Material Adverse
Effect” or similar language shall be true and correct in all respects as of any such date).
7.02. Notice of Borrowing; Letter of
Credit Request. (a) Prior to the making of each Loan (other than a Swingline Loan or a Revolving Loan made pursuant to a Mandatory Borrowing), the Administrative Agent shall have received a Notice of Borrowing meeting the requirements of
Section 2.03(a). Prior to the making of each Swingline Loan, the Swingline Lender shall have received the notice referred to in Section 2.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Administrative Agent and the respective Issuing Lender shall have received a Letter
of Credit Request meeting the requirements of Section 3.03(a).
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7.03. Borrowing Limitations. Notwithstanding anything to the contrary set forth herein
(but subject to Section 2.01(e)), it shall be a condition precedent to each Credit Event that after giving effect thereto (and the use of the proceeds thereof):
(i) the Aggregate U.S. Borrower Exposure would not exceed 100% (or, during an Agent Advance Period, 105%) of the U.S. Borrowing
Base at such time;
(ii) the Aggregate Dutch Borrower Exposure would not exceed 100% (or, during an Agent Advance Period,
105%) of the Dutch Borrowing Base at such time;
(iii) the Aggregate Exposure at such time would not exceed the Total
Revolving Loan Commitment at such time; and
(iv) during a Reduced Availability Period, Excess Availability would exceed
10% of the Availability at such time.
7.04. Collateralized Letters of Credit. Notwithstanding anything to the contrary set forth
herein, so long as there are outstanding any Collateralized Letters of Credit pursuant to Section 3.02(b), no Loans may be incurred, and no additional Letters of Credit may be issued (nor may the Stated Amount of any then outstanding Letter of
Credit be increased), unless, in any such case, the Company would be able to comply with Section 10.07 (to the extent that such compliance is then required) but, for this purpose, including all outstanding Letters of Credit (including all
outstanding Collateralized Letters of Credit) in calculating the Aggregate Exposure and Excess Availability at such time.
The acceptance
of the benefits of each Credit Event shall constitute a representation and warranty by the Company and the other Borrowers to the Administrative Agent and each of the Lenders that all the conditions specified in Section 6 (with respect to the
occurrence of the Effective Date and Credit Events on the Effective Date) and in this Section 7 (with respect to the occurrence of the Effective Date and Credit Events on or after the Effective Date) and applicable to such Credit Event are
satisfied as of that time, in each case, to the extent the satisfaction of any such condition is not expressly subject to any Lender’s or Agent’s determination. All of the Notes, certificates, legal opinions and other documents and papers
referred to in Section 6 and in this Section 7, unless otherwise specified, shall be delivered to the Administrative Agent at the Notice Office for the account of each of the Lenders and, except for the Notes, in sufficient counterparts or
copies for each of the Lenders and shall be in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders.
SECTION 8. Representations and Warranties. In order to induce the Lenders to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, each of the Company and the other Borrowers makes the following representations and warranties, in each case after giving effect to the Transaction, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the Loans and the issuance of the Letters of Credit, with the occurrence of the Effective Date and each Credit Event on or after the Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 8 are true and correct in all material respects on and as of the Effective Date and on the date of each such Credit Event (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).
8.01.
Company Status. Each of the Company and each of its Subsidiaries (i) is a duly organized and validly existing Business, (ii) has the Business power and authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage, (iii) is duly qualified and is authorized to do business and is in good standing (or its equivalent, to the extent that such concept is applicable in the respective jurisdiction) under the laws of
the jurisdiction of its organization and in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its
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business requires such qualifications except in the case of this clause (iii) for failures to be so qualified or authorized which, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect and (iv) with respect to each Credit Party incorporated in a jurisdiction where Council Regulation (EC) No 1346/2000 on insolvency proceedings of 29 May 2000 (the “Insolvency
Regulation”) applies, it has its centre of main interest (as that term is used in Section 3(1) of the Insolvency Regulation) in its jurisdiction of incorporation and it has no establishment (as defined in section 2(h) of the Insolvency
Regulation) in any other jurisdiction.
8.02. Power and Authority. Each Credit Party has the Business power and authority to
execute, deliver and perform the terms and provisions of each of the Credit Documents to which it is party and has taken all necessary Business action to authorize the execution, delivery and performance by it of each of such Credit Documents. Each
Credit Party has duly executed and delivered each of the Credit Documents to which it is party, and each of such Credit Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that
the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
8.03. No Violation. Neither the execution, delivery or performance by any Credit Party of the Credit Documents
to which it is a party, nor compliance by it with the terms and provisions thereof, (i) will contravene any provision of any applicable law, statute, rule or regulation or any order, writ, injunction or decree of any court or Governmental
Authority, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the property or assets of any Credit Party or any of its Subsidiaries pursuant to the terms of any material indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other
material agreement, contract or instrument, in each case to which any Credit Party or any of its Subsidiaries is a party or by which it or any its property or assets is bound or to which it may be subject including the Existing Convertible Notes
Indentures, or (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit
Party or any of their respective Subsidiaries.
8.04. Approvals. No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except for (x) those that have otherwise been obtained or made on or prior to the Effective Date and which remain in full force and effect on the Effective Date and (y) filings which are
necessary to perfect the security interests created or intended to be created under the Security Documents), or exemption by, any Governmental Authority is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is
required to be obtained or made by, or on behalf of, any Credit Party in connection with, (i) the execution, delivery and performance by such Credit Party of any Credit Document or (ii) the legality, validity, binding effect or
enforceability of any such Credit Document against such Credit Party.
8.05. Financial Statements; Financial Condition; Undisclosed
Liabilities. (a) (I) The audited consolidated balance sheets of the Company for its fiscal years ended December 31, 2013 and December 31, 2014 and the related consolidated statements of income and cash flows and changes in
shareholders’ equity of the Company for its fiscal years ended December 31, 2013 and December 31, 2014, copies of which were in each case furnished to the Lenders prior to the Effective Date, present fairly in all material respects
the consolidated financial position of the Company and its Subsidiaries at the date of said financial statements and the results for the respective periods covered thereby; and (II) the unaudited consolidated balance sheet of the Company for its
fiscal quarter ended March 31, 2015 and the
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related consolidated statements of income and cash flows of the Company for the three-month period ended on such date, copies of which were furnished to the Lenders prior to the Effective Date,
present fairly in all material respects the consolidated financial condition of the Company and its Subsidiaries as at the date of said financial statements and the consolidated results of their operations for the period covered thereby, subject to
normal year-end adjustments and the absence of footnotes. All such consolidated financial statements have been prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Company to the Lenders) and subject, in the case of the unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes.
(b) (i) The sum of the fair value of the assets, at a fair valuation, of the Company and its Subsidiaries (taken as a whole) will exceed
their respective debts, (ii) the sum of the present fair saleable value of the assets of the Company and its Subsidiaries (taken as a whole) will exceed their respective debts, (iii) the Company and its Subsidiaries (taken as a whole) have
not incurred and do not intend to incur, and do not believe that they will incur, debts beyond their ability to pay such debts as such debts mature, and (iv) the Company and its Subsidiaries (taken as a whole) will have sufficient capital with
which to conduct their respective businesses. For purposes of this Section 8.05(b), “debt” means any liability on a claim, and “claim” means right to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and
circumstances available at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(c) Except as fully disclosed in the financial statements delivered pursuant to Section 8.05(a), and except for the Indebtedness
incurred under the Credit Documents and Existing Indebtedness and liabilities or obligations arising in the ordinary course of business, there were as of the Effective Date no liabilities or obligations with respect to the Company or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to be material to the Company and its Subsidiaries (taken
as a whole).
(d) After giving effect to the Transaction, since December 31, 2014, nothing has occurred that has had, or could
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
8.06. Litigation. There are no
actions, suits, claims, demands, investigations, audits, charges or proceedings by or before any Governmental Authority pending or, to the knowledge of any Responsible Officer of the Company, threatened in writing (i) that purports to affect
the legality, validity or enforceability of any Credit Document or (ii) that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
8.07. True and Complete Disclosure. All factual information (other than projections and information of a general economic or industry
nature) (taken as a whole) furnished by or on behalf of the Company or any other Borrower in writing to any Agent or any Lender for purposes of or in connection with this Agreement, the other Credit Documents or any transaction contemplated herein
or therein, taken as a whole and together with the Company’s filings with the SEC, is true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any fact
necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
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8.08. Use of Proceeds; Margin Regulations. (a) All proceeds of the Loans will be used
for the working capital and general corporate purposes (including Acquisitions) of the Borrowers and their respective Subsidiaries; provided that the proceeds of Swingline Loans shall not be used to refinance then outstanding Swingline Loans.
(b) No part of any Credit Event (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock. Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other Credit Event will violate or be inconsistent with the provisions of Regulation T, U or X. Not more
than 25% of the value of the assets of the Company and its Subsidiaries taken as a whole is represented by Margin Stock.
8.09. Tax
Returns and Payments. The Company and each of its Subsidiaries has timely filed or caused to be timely filed with the appropriate taxing authority all federal and other material returns, statements, forms and reports for taxes (the
“Returns”) required to be filed by, or with respect to the income, properties or operations of, the Company and/or any of its Subsidiaries. The Returns accurately reflect in all material respects all liability for taxes of the
Company and its Subsidiaries, as applicable, for the periods covered thereby. The Company and each of its Subsidiaries has paid all material taxes and assessments payable by it which have become due and payable, other than those that are being
contested in good faith and adequately disclosed for which adequate reserves have been established in accordance with GAAP. There is no action, suit, proceeding, investigation, audit or claim now pending or, to the knowledge of any Responsible
Officer of the Company, threatened in writing by any authority regarding any taxes relating to the Company or any of its Subsidiaries that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. As
of the Effective Date, other than as set forth on Schedule 8.09 to the Disclosure Letter, neither the Company nor any of its Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of material taxes of the Company or any of its Subsidiaries, has otherwise been granted an extension of any statute of limitations relating to the payment or collection of taxes, or is
aware of any circumstances that would cause the taxable years or other taxable periods of the Company or any of its Subsidiaries not to be subject to the normally applicable statute of limitations.
8.10. Compliance with ERISA. (a) Schedule 8.10 to the Disclosure Letter sets forth each Plan as of the Effective Date. Each Plan
is in compliance in form and operation with its terms and with ERISA and the Code (including the Code provisions compliance with which is necessary for any intended favorable tax treatment) and all other applicable laws and regulations, except where
any failure to comply could not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. Each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a favorable determination letter from the IRS or has applied to the IRS for such a determination letter to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code covering all applicable tax law changes
or is comprised of a master or prototype plan that has received a favorable opinion letter from the IRS, and to the knowledge of any Responsible Officer of the Company, nothing has occurred since the date of such determination that would reasonably
be expected to adversely affect such determination (or, in the case of a Plan with no determination, to the knowledge of any Responsible Officer of the Company, nothing has occurred that would reasonably be expected to materially adversely affect
the issuance of a favorable determination letter or otherwise materially adversely affect such qualification). No ERISA Event has occurred, or is reasonably expected to occur, other than as could not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
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(b) There exists no Unfunded Pension Liability with respect to any Plan, which either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(c) No Multiemployer Plan is
insolvent. None of the Company or any of its Subsidiaries or any ERISA Affiliate has incurred a complete or partial withdrawal from any Multiemployer Plan, and, if each of the Company, any of its Subsidiaries and each ERISA Affiliate were to
withdraw in a complete withdrawal as of the date this assurance is given or deemed given, the aggregate withdrawal liability that would be incurred could not, either individually or in the aggregate, be reasonably expected to result in a Material
Adverse Effect.
(d) There are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits)
or, to the knowledge any Responsible Officer of the Company, any of its Subsidiaries or any ERISA Affiliate, threatened, which could reasonably be expected to be asserted successfully against any Plan and, if so asserted successfully, could
reasonably be expected either individually or in the aggregate to result in a Material Adverse Effect.
(e) The Company, its Subsidiaries
and any ERISA Affiliate have made all contributions to or under each Plan and Multiemployer Plan required by law within the applicable time limits prescribed thereby, the terms of such Plan or Multiemployer Plan, respectively, or any contract or
agreement requiring contributions to a Plan or Multiemployer Plan except where any failure to comply, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(f) No Plan which is subject to Section 412 of the Code or Section 302 of ERISA has applied for or received an extension of any
amortization period, within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA. The Company, its Subsidiaries and any ERISA Affiliate have not ceased operations at a facility so as to become subject to the provisions of
Section 4062(e) of ERISA, withdrawn as a substantial employer so as to become subject to the provisions of Section 4063 of ERISA or ceased making contributions to any Plan subject to Section 4064(a) of ERISA to which it made
contributions which either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the Company, its Subsidiaries or any ERISA Affiliate have incurred liability to the PBGC which, either
individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, and no lien imposed under the Code or ERISA on the assets of the Company, its Subsidiaries or any ERISA Affiliate exists on account of any Plan
which either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the Company, its Subsidiaries or any ERISA Affiliate has any liability under Section 4069 or 4212(c) of ERISA which
either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(g) Except as could not,
either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect: each Foreign Pension Plan has been maintained in compliance with its terms and with the requirements of any and all applicable laws, statutes,
rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities; all contributions required to be made with respect to a Foreign Pension Plan have been timely made; neither the Company
nor any of its Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan; and the Foreign Pension Plan is funded in compliance with applicable law.
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8.11. Security Documents. (a) The provisions of the U.S. Security Agreement (when
executed and delivered by all parties thereto) are effective to create in favor of the Collateral Agent, for the benefit of the Secured Creditors, a legal, valid and enforceable security interest in all right, title and interest of the U.S. Credit
Parties in all of the Security Agreement Collateral described therein, and when proper UCC financing statements have been filed in the appropriate filing offices against each U.S. Credit Party and/or the Collateral Agent has obtained
“control” (within the meaning of the UCC) of the Core Deposit Accounts and DB Accounts thereunder, the Collateral Agent, for the benefit of the Secured Creditors, shall have a perfected security interest in all right, title and interest in
all of the Security Agreement Collateral described therein of such U.S. Credit Party to the extent such security interest can be perfected by filing a UCC financing statement under the UCC or, with respect to the Core Deposit Accounts or DB
Accounts, by the Collateral Agent having “control”, subject to no other Liens other than Permitted Liens (it being understood that the Permitted Liens described in Section 10.01(s) are subject to the terms of the Intercreditor
Agreement at any time that Permitted Additional Secured Indebtedness is outstanding).
(b) The Dutch Security Agreements and each other
Security Document governed by Dutch law (when executed and delivered by all parties thereto) are effective to create in favor of the Collateral Agent for the benefit of the Secured Creditors, a legal, valid and enforceable security interest in all
right, title and interest of the Dutch Credit Parties in all of the Collateral described therein, and when proper filings have been made in the appropriate filing offices against each Dutch Credit Party, the Collateral Agent, for the benefit of the
Secured Creditors, will have a perfected security interest in all right, title and interest in all of the Collateral described therein of such Dutch Credit Party, to the extent such security interest can be perfected by making such filings under
Dutch law, subject to no other Liens other than Permitted Liens (it being understood that the Permitted Liens described in Section 10.01(s) are subject to the terms of the Intercreditor Agreement at any time that Permitted Additional Secured
Indebtedness is outstanding).
8.12. Properties. Each of the Company and each of its Subsidiaries has good title to all material
properties (and to all buildings, fixtures and improvements located thereon) owned by it (except as sold or otherwise disposed of in the ordinary course of business or as permitted by the terms of this Agreement or such defects in title as could
not, either individually or in the aggregate, reasonably be expected to have a material adverse effect on the conduct of the business of the Company and its Subsidiaries (taken as a whole)), free and clear of all Liens, other than Permitted Liens.
Each of the Company and each of its Subsidiaries have a valid leasehold interest in the material properties leased by it free and clear of all Liens other than Permitted Liens, and except for such defects in title as could not, either individually
or in the aggregate, reasonably be expected to have a material adverse effect on the use or operation of any such material property.
8.13. [Reserved].
8.14.
Subsidiaries. On and as of the Effective Date, the Company has no Subsidiaries other than those Subsidiaries listed on Schedule 8.14 to the Disclosure Letter. Schedule 8.14 to the Disclosure Letter sets forth, as of the Effective Date,
(i) the percentage ownership (direct and indirect) of the Company in each class of capital stock or other Equity Interests of each of its Subsidiaries and also identifies the direct owner thereof, (ii) which Subsidiaries are Credit Parties
(including whether they are U.S. Borrowers, Dutch Borrowers, U.S. Subsidiary Guarantors or Dutch Guarantors) and (iii) which Subsidiaries are Immaterial Subsidiaries. All outstanding Equity Interests of each Subsidiary of the Company
(i) have been duly and validly issued, (ii) in the case of any corporation, are fully paid and non-assessable and (iii) have been issued free of preemptive rights. No Wholly-Owned Subsidiary of the Company has outstanding any
securities convertible into or exchangeable for such Wholly-Owned Subsidiary’s Equity Interests or outstanding any right to subscribe for or to purchase, or any options or warrants for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of or any calls, commitments or claims of any character relating to, such Wholly-Owned Subsidiary’s Equity Interests or any stock appreciation or similar rights.
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8.15. Compliance with Statutes, etc. Each of the Company and each of its Subsidiaries is
in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property (including Environmental
Laws), except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
8.16. Investment Company Act. Neither the Company nor any of its Subsidiaries is an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
8.17.
Environmental Matters. (a) Except as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect: (i) each of the Company and each of its Subsidiaries is in compliance with all
applicable Environmental Laws and has obtained and is in compliance with the terms of any permits required under such Environmental Laws; (ii) there are no Environmental Claims pending or, to the knowledge of any Responsible Officer of the
Company, threatened in writing, against the Company or any of its Subsidiaries; (iii) no Lien, other than a Permitted Lien, has been recorded or, to the knowledge of any Responsible Officer of the Company, threatened in writing under any
Environmental Law with respect to any Real Property owned, leased or operated by the Company or any of its Subsidiary (including any such claim arising out of the ownership, lease or operation by the Company or any of its Subsidiaries of any Real
Property formerly owned, leased or operated by the Company or any of its Subsidiaries but no longer owned, leased or operated by the Company or any of its Subsidiaries); (iv) except as disclosed in the Company’s filings with the SEC prior
to the Effective Date regarding the Company’s Fremont facility, neither the Company nor any of its Subsidiaries has agreed to assume or accept responsibility for any existing liability of any other Person under any Environmental Law; and
(v) except as disclosed in the Company’s filings with the SEC prior to the Effective Date regarding the Company’s Fremont facility, there are no facts, circumstances, conditions or occurrences with respect to the past or present
business, operations, properties or facilities of the Company or any of its Subsidiaries, or any of their respective predecessors, that could reasonably be expected to give rise to any Environmental Claim against or any liability for the Company or
any of its Subsidiaries under any Environmental Law.
(b) Neither the Company nor any of its Subsidiaries has received any letter or
request for information under Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601, et seq.) or any comparable state law with regard to any matter that could reasonably be
expected, either individually or in the aggregate, to result in a Material Adverse Effect.
(c) Neither the Company nor any of its
Subsidiaries has been issued or been required to obtain a permit for the treatment, storage or disposal of hazardous waste for any of its facilities pursuant to the federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq.
(“RCRA”), or any equivalent state law, nor are any such facilities regulated as “interim status” facilities required to undergo corrective action pursuant to RCRA or any state equivalent, except, in each case, for such matters
that could not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect.
8.18.
Employment and Labor Relations. Neither the Company nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. There is
(i) no unfair labor practice complaint
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pending against the Company or any of its Subsidiaries or, to the knowledge of any Responsible Officer of the Company, threatened in writing against any of them, before the National Labor
Relations Board or other Governmental Authority, and no grievance or arbitration or other proceeding arising out of or under any collective bargaining agreement or any other similar collective agreements with any type of employees’
representative is so pending against the Company or any of its Subsidiaries or, to the knowledge of any Responsible Officer of the Company, threatened in writing against any of them, (ii) no strike, labor dispute, slowdown, lock-out, work
stoppage or other dispute existing, pending or, to the knowledge of any Responsible Officer of the Company, threatened in writing against the Company or any of its Subsidiaries, (iii) no trade union, council of trade unions or other
employees’ representative or employee bargaining agency that has applied or, to the knowledge of any Responsible Officer of the Company, threatened in writing to apply to be certified as the bargaining agent of any employees of the Company or
any of its Subsidiaries and no existing or, to the knowledge of any Responsible Officer of the Company, threatened in writing union organizing activity taking place with respect to any of the employees of the Company or any of its Subsidiaries in
the last three years, (iv) no legal actions, lawsuits, arbitrations, administrative or other proceedings, charges, complaints, investigations, inspections, audits or notices of violations or possible violations pending or, to the knowledge of
any Responsible Officer of the Company, threatened in writing against the Company or any of its Subsidiaries by or on behalf of, or otherwise involving, any current or former employee, any person alleging to be a current or former employee, any
applicant for employment, or any class of the foregoing, or any Governmental Authority, that involve the labor or employment relations and practices of the Company or any of its Subsidiaries, including but not limited to claims of employment
discrimination, and (v) no violation of the US federal Fair Labor Standards Act of 1938, as amended, or any other applicable laws, regulations or legal requirements dealing with wage and hour matters with respect to the Company or any of its
Subsidiaries, except (with respect to any matter specified in clauses (i) – (v) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect. Any individual who performs
services for the Company or any of its Subsidiaries (other than through a contract with an organization other than such individual) and who is not treated as an employee of the Company or such Subsidiary for any purpose, including income tax,
withholding and remittances purposes, has been properly classified as an independent contractor and if such characterization is incorrect it could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
8.19. Intellectual Property, etc. Each of the Company and each of its Subsidiaries owns or has the right to use all the patents,
trademarks, permits, domain names, service marks, trade names, copyrights, licenses, franchises, inventions, trade secrets, proprietary information and know-how of any type, whether or not written (including, but not limited to, rights in computer
programs and databases) and formulas, or rights with respect to the foregoing, and has obtained assignments of all leases, licenses and other rights of whatever nature, used in the present conduct of its business, without any known conflict with the
rights of others which, or the failure to own or have which, as the case may be, could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
8.20. Indebtedness. Schedule 8.20 to the Disclosure Letter sets forth a list of all Indebtedness (including Contingent Obligations) of
the Company and its Subsidiaries as of the Effective Date 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) (all such non-excluded Indebtedness (other than such intercompany Indebtedness), “Existing Indebtedness”), in each case showing the aggregate principal amount thereof
and the name of the respective borrower and any Credit Party or any of its Subsidiaries which directly or indirectly guarantees such debt.
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8.21. Insurance. Schedule 8.21 to the Disclosure Letter sets forth a listing of all
insurance maintained by the Company and its Subsidiaries as of the Effective Date, with the amounts insured (and any deductibles) set forth therein.
8.22. Borrowing Base Calculation. The calculation by the Company of each Borrowing Base in any Borrowing Base Certificate delivered
hereunder is complete and accurate.
8.23. Anti-Corruption Laws and Sanctions. The Company has implemented and maintains in effect
policies and procedures designed to ensure compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and their
respective officers and employees, and to the knowledge of the Company its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would
reasonably be expected to result in any Borrower being designated as a Sanctioned Person. None of (i) the Company or its Subsidiaries, nor any of their respective directors, officers or employees, or (ii) to the knowledge of the Company,
any agent of the Company or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No use of proceeds or other transaction contemplated by this Agreement will
violate Anti-Corruption Laws or applicable Sanctions.
8.24. No Default. No Credit Party is in default under or with respect to any
of its contractual obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
8.25. Fiscal Unity. No Dutch Credit Party is a member of a fiscal unity (fiscal eenheid) other than a fiscal unity among the
Dutch Credit Parties only.
SECTION 9. Affirmative Covenants. Each of the Company and each other Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Revolving Loan Commitment and all Letters of Credit have terminated (or have been cash collateralized or backstopped by another letter of credit, in either case on terms and pursuant to
arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such cash collateral or backstop letter of credit to be in a stated amount equal to at least 102% of
the aggregate Stated Amount of all Letters of Credit outstanding at such time)) and the Loans, Notes and Unpaid Drawings (in each case together with interest thereon), Fees and all other Obligations (other than indemnities and other contingent
payment obligations of the Credit Parties set forth in the Credit Documents and reimbursement obligations under Section 13.01 which, in either case, are not then due and payable) incurred hereunder and thereunder, are paid in full:
9.01. Information Covenants. The Company will furnish to the Administrative Agent for delivery to each Lender:
(a) Quarterly Financial Statements. Within 45 days after the close of each of the first three fiscal quarters in each fiscal year of
the Company, (i) the consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income and statement of cash flows for such fiscal quarter and for the elapsed
portion of the fiscal year ended with the last day of such fiscal quarter, in each case setting forth comparative figures for the corresponding fiscal quarter in the prior fiscal year, all of which shall be certified by an Authorized Officer of the
Company that they fairly present in all material respects in accordance with GAAP the financial condition of the Company and its Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to normal
year-end audit adjustments and
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the absence of footnotes and (ii) management’s discussion and analysis meeting the requirements of Item 303 of Regulation S-K under the Securities Act as set forth in the Quarterly
Report on Form 10-Q statement of the Company filed with the SEC for such fiscal quarter, provided that if the Company no longer files such Form 10-Q with the SEC, the Company shall deliver to the
Administrative Agent a statement containing such management’s discussion and analysis in a form that would otherwise be required in such Form 10-Q .
(b) Annual Financial Statements. Within 90 days after the close of each fiscal year of the Company, (i) the consolidated balance
sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related consolidated statements of income and statement of cash flows for such fiscal year setting forth, comparative figures for the preceding fiscal year and
audited by PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing, accompanied by an opinion of such accounting firm (which opinion shall be without a “going concern” or like
qualification or exception and without any qualification or exception as to scope of audit) and (ii) management’s discussion and analysis meeting the requirements of Item 303 of Regulation S-K under the Securities Act as set forth in
the Annual Report on Form 10-K of the Company filed with the SEC for such fiscal year, provided that if the Company no longer files such Form 10-K with the SEC, the Company shall deliver to the Administrative Agent a statement containing such
management’s discussion and analysis in a form that would otherwise be required in such Form 10-K.
(c) Budget. No later than
the 90th day of each fiscal year of the Company, a budget (including budgeted statements of income, sources and uses of cash and balance sheets for the Company and its Subsidiaries on a consolidated basis) for each of the four fiscal quarters of
such fiscal year prepared in detail.
(d) Officer’s Certificates. At the time of the delivery of the financial statements
provided for in Sections 9.01 (a) and (b), a compliance certificate from an Authorized Officer of the Company in the form of Exhibit K certifying on behalf of the Company that, to the best of such officer’s knowledge, no Default or Event
of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof, and which certificate shall set forth (i) in reasonable detail the calculations required
to establish whether the Company and its Subsidiaries were in compliance with the provisions of Section 10.07 (setting forth, for the purposes of such certificate, calculations setting forth the Fixed Charge Coverage Ratio for such period
irrespective of whether a Compliance Period exists at such time) at the end of such fiscal quarter or fiscal year, as the case may be and (ii) in respect of any Indebtedness incurred pursuant to Section 10.04(n) during such period,
calculations required by clause (vii) thereof.
(e) Notice of Default, Litigation and Material Adverse Effect. Promptly, and
in any event within five Business Days after any Responsible Officer of the Company obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of Default, (ii) any litigation or
governmental investigation or proceeding pending against the Company or any of its Subsidiaries (x) which, either individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect or (y) that
purports to affect the legality, validity or enforceability of any Credit Document, or (iii) any other event, change or circumstance that has had, either individually or in the aggregate, a Material Adverse Effect.
(f) [Reserved]
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(g) Environmental Matters. Promptly after any Responsible Officer of the Company obtains
knowledge thereof, notice of one or more of the following environmental matters to the extent that such environmental matters, either individually or when aggregated with all other such environmental matters, could reasonably be expected to have a
Material Adverse Effect:
(i) any pending or threatened in writing Environmental Claim against the Company or any of its
Subsidiaries or against or relating to any Real Property owned, leased or operated by the Company or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property owned, leased or operated by the Company or any of its
Subsidiaries that (a) results in noncompliance by the Company or any of its Subsidiaries with any applicable Environmental Law or (b) could reasonably be expected to form the basis of an Environmental Claim against the Company or any of
its Subsidiaries or against or relating to any such Real Property;
(iii) any condition or occurrence on any Real Property
owned, leased or operated by the Company or any of its Subsidiaries that could reasonably be expected to cause such Real Property to be subject to any restrictions on the ownership, lease, occupancy, use or transferability by the Company or any of
its Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action
to the extent required by any Environmental Law or any Governmental Authority in response to the Release or threatened Release of any Hazardous Material on any Real Property owned, leased or operated by the Company or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial
action and the Company’s or such Subsidiary’s response thereto.
(h) Borrowing Base Certificate. (i) On the
Effective Date, (ii) unless clause (iii) below applies, not later than 5:00 P.M. (New York City time) on or before the 20th day (or, solely with respect to the first three fiscal months
of the Company after the Effective Date, the 25th day) of each fiscal month thereafter, (iii) during any period in which a Weekly Borrowing Base Period is in effect, not later than 5:00 P.M.
(New York City time) on or before the third Business Day of each week, (iv) at the time of the consummation of any Asset Sale (other than a sale of Inventory in the ordinary course of business) involving Eligible Accounts, Eligible Inventory,
and/or Eligible Machinery and Equipment with an aggregate value in excess of $25,000,000 and (v) within five Business Days after any Recovery Event involving Eligible Inventory or Eligible Machinery and/or Equipment with an aggregate value of
$25,000,000 or more, a borrowing base certificate setting forth each Borrowing Base (in each case with supporting calculations in reasonable detail) substantially in the form of Exhibit O (each, a “Borrowing Base Certificate”),
which shall be prepared (A) as of April 30, 2015 in the case of the initial Borrowing Base Certificate and (B) as of the last Business Day of the preceding fiscal month of the Company in the case of each subsequent Borrowing Base
Certificate (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the last Business Day of the week preceding such delivery); provided that any Borrowing Base Certificate delivered pursuant to preceding
clauses (iv) and (v) shall be prepared on a pro forma basis to include or exclude, as applicable, any Eligible Accounts, Eligible Inventory or Eligible Machinery and Equipment the subject of any such event. Notwithstanding the foregoing,
the Company may, at any time, provide (or shall, at the request of the Administrative Agent, provide on the date of such request) a Borrowing Base Certificate updating the Borrowing Base with respect to Eligible Cash and Cash Equivalents as of the
date of delivery of such Borrowing Base Certificate. Each Borrowing Base Certificate delivered pursuant to this Agreement shall include such supporting information as may be reasonably requested from time to time by the Administrative Agent.
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(i) Notice of Dominion Period or Compliance Period. Promptly, and in any event within two
Business Days after any Responsible Officer of the Company obtains knowledge thereof, notice of the commencement of a Dominion Period or a Compliance Period.
(j) Field Examinations; Appraisals. The Company shall provide (i) an Acceptable Appraisal in respect of the Inventory of the
Borrowers and (ii) an Acceptable Field Examination in respect of the Inventory and the Accounts and related accounts of the Borrowers, in each case one time during each fiscal year of the Company (or (A) at any time during an Additional
Appraisal/Exam Period, at the request of the Administrative Agent, two times in each fiscal year of the Company (provided that no Acceptable Appraisal or Acceptable Field Examination, as applicable, may be required pursuant to this clause
(A) if an Acceptable Appraisal in respect of Inventory or an Acceptable Field Examination, respectively, has been provided within the prior six months) and (B) at any time that any Event of Default exists, as often as the Administrative
Agent may reasonably require). At the request of the Administrative Agent at any time during an Additional Appraisal/Exam Period (which request shall not be made more than one time during each fiscal year of the Company), the Company shall provide
an Acceptable Appraisal in respect of the Eligible Machinery and Equipment of the U.S. Borrowers; provided that any time that any Event of Default exists, the Company shall provide an Acceptable Appraisal in respect of the Eligible Machinery
and Equipment of the U.S. Borrowers as often as the Administrative Agent may reasonably require. For the avoidance of doubt, the Company shall be permitted to deliver an Acceptable Appraisal in respect of Eligible Machinery and Equipment of the U.S.
Borrowers at its option at any time. Each such appraisal and field examination shall be at the sole cost and expense of the Company.
(k)
Other Reporting. Upon the request of the Administrative Agent, as soon as available, but in any event (x) no later than 20 days after the end of each fiscal month of the Company ending after the Effective Date and (y) at any time
that an Event of Default shall be continuing, a detailed aged trial balance for such period showing Accounts listed in the Borrowing Base and a detailed summary of all Accounts listed in the Borrowing Base indicating which Accounts are 30, 60 and 90
days past due and listing the names of all Account Debtors, accompanied by such supporting detail and documentation as shall be reasonably requested by the Administrative Agent.
(l) Patriot Act. Promptly following the Administrative Agent’s or any Lender’s request therefor, all documentation and other
information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under the applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot
Act.
(m) Cancellation of Insurance. Promptly (but in any event within three Business Days of receipt thereof) inform the
Administrative Agent if any Credit Party receives notice of cancellation of any insurance policy required to be maintained pursuant to Section 9.03.
(n) Change in Name. (i) 10 days (or such lesser time as agreed by the Administrative Agent) prior written notice of any change in
the legal name of any Credit Party and with respect to such new name, the Company and the applicable Credit Party shall take all action reasonably requested by the Collateral Agent to ensure the security interests of the Collateral Agent in the
Collateral intended to be granted pursuant to the applicable Security Documents is at all times fully perfected and in full force and effect, subject to the limitations set forth in this Agreement and the applicable Security Documents, and
(ii) 10 days (or such lesser time as agreed by the Administrative Agent) prior written notice of any change in the jurisdiction of organization of any Credit Party and
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with respect to such new jurisdiction of organization, the Company and the applicable Credit Party shall take all action reasonably requested by the Collateral Agent to ensure the security
interests of the Collateral Agent in the Collateral intended to be granted pursuant to the applicable Security Documents is at all times fully perfected and in full force and effect, subject to the limitations set forth in this Agreement and in the
applicable Security Documents.
(o) Other Information. From time to time, such other information or documents (financial or
otherwise) with respect to the Company or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Financial information required to be delivered pursuant to Sections 9.01(a) and (b) (in each case, solely to the extent such financial
information is included in materials filed with the SEC) shall be deemed to have been delivered to the Administrative Agent on the date on which such information is available via the EDGAR system of the SEC on the Internet; provided that, in
each case, the Company shall (i) to the extent such information required to be provided under Section 9.01(b) is not included in materials filed with the SEC, separately deliver to the Administrative Agent an audit report and the opinion
of PricewaterhouseCoopers LLP or other independent certified public accountants of national recognized standing satisfying the requirements set forth in Section 9.01(b)(i) and (ii) if such information is not available via the EDGAR system
of the SEC on the Internet, promptly deliver paper copies of any such documents to the Administrative Agent if the Administrative Agent or any Lender requests the Company to furnish such paper copies until written notice to cease delivering such
paper copies is given by the Administrative Agent.
9.02. Books, Records and Inspections. The Company will, and will cause each of
its Subsidiaries to, keep proper books of record and accounts in which full, true and correct in all material respects entries are made sufficient to prepare financial statements in conformity with GAAP. The Company will, and will cause each of its
Subsidiaries to, permit officers and designated representatives of the Administrative Agent and, upon the occurrence and during the continuance of an Event of Default, any Lender which is accompanying the Administrative Agent, (a) to visit and
inspect, under guidance of officers of the Company or such Subsidiary, any of the properties of the Company or such Subsidiary, (b) to examine the books of account of the Company or such Subsidiary and discuss the affairs, finances and accounts
of the Company or such Subsidiary with, and be advised as to the same by, its and their officers and independent accountants and (c) to verify Eligible Accounts, Eligible Inventory and/or Eligible Machinery and Equipment, all upon reasonable
prior notice and at such reasonable times and intervals and to such reasonable extent as the Administrative Agent may reasonably request; provided that, unless a Default or an Event of Default has occurred and is continuing, the Company shall
only be required to reimburse the Expenses of the Administrative Agent for one such visit per calendar year.
9.03. Maintenance of
Property; Insurance. (a) The Company will, and will cause each of its Subsidiaries to, (i) keep all property necessary to the business of the Company and its Subsidiaries in good working order and condition, ordinary wear and tear
excepted and subject to the occurrence of casualty and condemnation events, (ii) maintain with financially sound and reputable insurance companies insurance on all such property and against all such risks as is consistent and in accordance with
industry practice for companies similarly situated owning similar properties and engaged in similar businesses as the Company and its Subsidiaries, and (iii) furnish to the Administrative Agent, upon its request therefor, full information as to
the insurance carried.
(b) The Company will, and will cause each of the Credit Parties to, at all times keep its property insured in
favor of the Collateral Agent, and all policies and certificates (or certified copies thereof including any endorsements) with respect to such insurance (and any general liability insurance and marine cargo insurance maintained by the Company and/or
such Credit Parties) (i) shall
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be endorsed to the Collateral Agent’s satisfaction for the benefit of the Collateral Agent by naming the Collateral Agent as lender loss payee and/or additional insured, (ii) shall
provide that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Collateral Agent and the other Secured Creditors, and (iii) such certificates shall be deposited with the Collateral Agent. The Company
will, and will cause each of the Credit Parties to, use commercially reasonable efforts to obtain endorsements to its insurance policies stating that such insurance policies shall not be canceled without at least 30 days’ (or 10 days’ in
the case of non-payment of premium) prior written notice thereof by the respective insurer to the Collateral Agent.
(c) If at any time
the improvements on any Mortgaged Property are located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or any successor thereto or other applicable agency, the Company will, and will cause the
applicable Credit Party to, at all times keep and maintain flood insurance in an amount reasonably satisfactory to the Administrative Agent but in no event less than the amount sufficient to comply with the rules and regulations promulgated under
the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004 or any successor acts thereto, each as amended from time to time.
(d) If the Company or any of its Subsidiaries shall fail to maintain insurance in accordance with this Section 9.03, or if the Company
or any of its Subsidiaries shall fail to so endorse and deposit all certificates with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Company and the other U.S.
Borrowers jointly and severally agree to reimburse the Administrative Agent for all out-of-pocket costs and expenses of procuring such insurance.
9.04. Existence; Franchises. The Company will, and will cause each of its Subsidiaries to, do or cause to be done, all things necessary
to preserve and keep in full force and effect its existence and its rights, franchises, licenses, permits, copyrights, trademarks and patents; provided, however, that nothing in this Section 9.04 shall prevent (i) sales of
assets and other transactions by the Company or any of its Subsidiaries not prohibited by this Agreement, (ii) the withdrawal by the Company or any of its Subsidiaries of its qualification as a foreign Business in any jurisdiction if such
withdrawal could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (iii) the termination or suspension of any rights, franchises, licenses, permits, copyrights, trademarks and patents if
such termination or suspension, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
9.05. Compliance with Laws, etc. (a) The Company will, and will cause each of its Subsidiaries to, comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and
restrictions relating to Environmental Laws), except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) The Company will comply, and will cause each of its Subsidiaries to comply, with all Anti-Corruption Laws and all Sanctions in all
material respects and will not knowingly engage in any activity that would reasonably be expected to result in any party to this Agreement being in violation of Sanctions or Anti-Corruption Laws.
9.06. Compliance with Environmental Laws. (a) The Company will comply, and will cause each of its Subsidiaries to comply, with all
Environmental Laws and permits applicable to, or required in respect of the conduct of its business or operations or by, the ownership, lease or use of its
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Real Property now or hereafter owned, leased or operated by the Company or any of its Subsidiaries, except for such instances of noncompliance as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and will promptly pay or cause to be paid all costs and expenses incurred in connection with such required compliance, except to the extent such nonpayment could not, either
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and will keep or cause to be kept all such Real Property free and clear of any Liens imposed pursuant to such Environmental Laws or post bonds or other
financial assurances sufficient to satisfy the obligations or liability evidenced by such Liens, except to the extent that such Liens, including any action to enforce any such Liens, could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries will generate, use, treat, store, Release or dispose of, or permit the generation, use, treatment, storage, Release or disposal of Hazardous Materials on any
Real Property now or hereafter owned, leased or operated by the Company or any of its Subsidiaries, or transport or permit the transportation of Hazardous Materials to or from any such Real Property, except for Hazardous Materials generated, used,
treated, stored, Released or disposed of at, or transported to or from, any such Real Properties which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b) (i) After the receipt by the Administrative Agent or any Lender of any notice of the type described in Section 9.01(g), (ii) at
any time that the Company or any of its Subsidiaries are not in compliance with Section 9.06(a) or (iii) in the event that the Administrative Agent or the Lenders have exercised any of the remedies pursuant to the last paragraph of
Section 11, the Company and the other Borrowers will (in each case) provide, at the sole joint and several expense of the Company and the other Borrowers and at the request of the Administrative Agent, an environmental site assessment report in
connection with, in the case of clauses (i) and (ii) above, any or all the Real Property that is the subject of clauses (i) or (ii) above or, in the case of clause (iii) above, any Real Property, and is owned, leased or
operated by the Company or any of its Subsidiaries, prepared by an environmental consulting firm reasonably approved by the Administrative Agent, for purpose of identifying the presence or absence of Hazardous Materials and any violations of
Environmental Law, and the potential cost of any removal or remedial action in connection with such Hazardous Materials on or emanating from, and the correction of any such violations at, such Real Property. If the Company or any other Borrower
fails to provide the same within 45 days after such request was made, the Administrative Agent may order the same, the cost of which shall be borne by the Company and the other Borrowers on a joint and several basis, and the Company and the other
Borrowers shall grant and hereby grant (in the case of property leased by the Company or any of its Subsidiaries, subject to the terms of the applicable lease) to the Administrative Agent and the Lenders and their respective agents reasonable access
to such Real Property and specifically grant the Administrative Agent and the Lenders an irrevocable non-exclusive license, subject to the rights of tenants, to undertake such an assessment, and to address any
Hazardous Materials and any violations of Environmental Law identified by such an assessment, at any reasonable time upon reasonable notice to the Company or the applicable other Borrower, all at the sole joint and several expense of the Company and
the other Borrowers.
9.07. ERISA.
(a) The Company will deliver to the Administrative Agent (in sufficient copies for all Lenders, if the Administrative Agent so requests):
(i) promptly and in any event within 15 days after receiving a request from the Administrative Agent a copy of the most recent
IRS Form 5500 (including the Schedule B) with respect to a Plan;
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(ii) promptly and in any event within 30 days after any Responsible Officer of
the Company knows that any ERISA Event has occurred that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, a certificate of an Authorized Officer of the Company describing such ERISA Event and
the action, if any, proposed to be taken with respect to such ERISA Event and a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA Event and any notices received by the Company, any Subsidiary of the Company or, to the
Company’s knowledge, any ERISA Affiliate from the PBGC or any other governmental agency with respect thereto; provided that, in the case of such ERISA Events under paragraph (d) of the definition thereof, the 30-day notice period
set forth above shall be a 10-day period, and, in the case of such ERISA Events under paragraph (b) of the definition thereof, in no event shall notice be given later than 10 days after the occurrence of any such ERISA Event; and
(iii) promptly, and in any event within 30 days, after a Responsible Officer of the Company, becomes aware that there has been
(A) an increase in Unfunded Pension Liabilities (taking into account only Plans with positive Unfunded Pension Liabilities) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect,
(B) an increase since the date the representations hereunder are given or deemed given, or from any prior notice, as applicable, in potential withdrawal liability under Section 4201 of ERISA, if the Company, any Subsidiary of the Company
and the ERISA Affiliates were to withdraw completely from any and all Multiemployer Plans that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (C) that any contribution required to be
made with respect to a Foreign Pension Plan has not been timely made, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect or (D) the adoption of any
amendment to a Plan which results in an increase in contribution obligations of the Company or any Subsidiary that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, a detailed written
description thereof from an Authorized Officer of the Company.
(b) The Company and each of its applicable Subsidiaries shall ensure that
all Foreign Pension Plans administered by it or into which it makes payments obtains or retains (as applicable) registered or tax-qualified, as applicable, status under and as required by applicable law and is administered in a timely manner in all
respects in compliance with all applicable laws and the terms of each relevant Foreign Pension Plans, except where the failure to do any of the foregoing, either individually or in the aggregate, could not be reasonably likely to result in a
Material Adverse Effect.
(c) None of the Company nor its Subsidiaries will incur liabilities to any Multiemployer Plan in the event of a
complete or partial withdrawal therefrom that, either individually or in the aggregate, could be reasonably expected to have a Material Adverse Effect.
9.08. [Reserved].
9.09.
Performance of Obligations. The Company will, and will cause each of its Subsidiaries to, perform all of its obligations under the terms of each mortgage, indenture, security agreement, loan agreement or credit agreement and each other
agreement, contract or instrument by which it is bound, except such non-performances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
9.10. Payment of Taxes. The Company will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all material
taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, prior to the date on
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which penalties attach thereto, and all material lawful claims which, if unpaid, might become a Lien or charge upon any properties of the Company or any of its Subsidiaries not otherwise
permitted under Section 10.01(a); provided that neither the Company nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if
it has maintained adequate reserves with respect thereto in accordance with GAAP.
9.11. Use of Proceeds. The Borrowers will use
the proceeds of the Loans only as provided in Section 8.08.
9.12. Additional Security; Further Assurances; Post-Closing Matters;
Additional Borrowers; etc. (a) Subject to the limitations set forth in the Security Documents and this Agreement, the Company will, and will cause each of the other Credit Parties to, at the expense of the Company and the other Borrowers,
make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, real property surveys (in the case of Mortgaged Properties), reports, control agreements (other than with respect to Excluded Accounts) and other assurances or instruments and take such further steps relating to the Collateral covered
by any of the Security Documents as the Collateral Agent may reasonably require. Furthermore, the Company will, and will cause the other Credit Parties to, deliver to the Collateral Agent such opinions of counsel, title insurance (in the case of
Mortgaged Properties) and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 9.12 has been complied with. Notwithstanding anything to the contrary set forth in the Credit Documents,
(x) no action shall be required to be taken by any of the Credit Parties to create, perfect or maintain any Lien on the Collateral under the laws of any jurisdiction other than the United States, the States of the United States, the District of
Columbia, the Netherlands, and as provided in Sections 9.12(c), (d) and (e) and (y) the Credit Parties shall not be obligated to otherwise undertake collateral perfection not otherwise required under the Credit Documents. Each of the
Company and each other Borrower agrees that each action required by this clause (a) shall be completed as soon as possible, but in no event later than 30 days after such action is requested to be taken by the Administrative Agent or the
Required Lenders (as such date may be extended by the Administrative Agent in its sole discretion); provided that, in no event will the Company or any of its Subsidiaries be required to take any action, other than using commercially
reasonable efforts, to obtain consents or other agreements from third parties with respect to its compliance with this clause.
(b) If
the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Mortgaged Property, the Company and the other Credit Parties will, at their own expense,
provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise
be in form and substance reasonably satisfactory to the Administrative Agent.
(c) (i) The Company and each other Borrower will, within
90 days following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion), enter into one or more Cash Management Control Agreements as, and to the extent, required by Sections
5.03(b) and (c). (ii) The Company and each other Borrower will, within 90 days following the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion) and at all times thereafter, comply
with the requirements of Section 5.03(b)(ii) and (iii) and Section 5.03(c)(ii) and (iii).
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(d) If the Company or any Credit Party establishes, creates or acquires after the Effective Date
any direct Wholly-Owned Subsidiary (or any existing Wholly-Owned Subsidiary becomes a direct Wholly-Owned Domestic Subsidiary of the Company or a direct Wholly-Owned Dutch Subsidiary of Tesla B.V.), (i) within 30 days after the establishment,
creation or acquisition of any such Subsidiary, the applicable Credit Party shall pledge the capital stock or other Equity Interests of such new Subsidiary pursuant to, and to the extent required by, any applicable Security Document and deliver the
certificates, if any, representing such stock or other Equity Interests, together with stock or other appropriate powers duly executed in blank, to the Collateral Agent to the extent required by the applicable Security Document (but otherwise
subject to the Intercreditor Agreement if then in effect), (ii) within 30 days after the establishment, creation or acquisition of any direct Wholly-Owned Domestic Subsidiary of the Company (other than an Immaterial Subsidiary, a Securitization
Subsidiary or an Excluded Energy Storage Subsidiary) (as such date may be extended from time to time by the Administrative Agent in its sole discretion), such Wholly-Owned Domestic Subsidiary shall become a party to each of the Intercreditor
Agreement if then in effect, the U.S. Security Agreement and the U.S. Guaranty and each other applicable Security Document, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement (or other
applicable joinder agreement reasonably satisfactory to the Administrative Agent and the Company), (iii) within 30 days after the establishment, creation or acquisition of any direct Wholly-Owned Dutch Subsidiary of Tesla B.V. (other than an
Immaterial Subsidiary, a Securitization Subsidiary or an Excluded Energy Storage Subsidiary) (as such date may be extended from time to time by the Administrative Agent in its sole discretion), such Wholly-Owned Dutch Subsidiary shall become a party
to each of the Intercreditor Agreement if then in effect and applicable, the Dutch Security Agreements and the Dutch Guaranty and each other applicable Security Document, in each case by executing and delivering to the Administrative Agent a
counterpart of a Joinder Agreement (or other applicable joinder agreement reasonably satisfactory to the Administrative Agent and the Company) and any related documentation required by such Joinder Agreement (or other applicable joinder agreement)
and (iv) each such new Wholly-Owned Domestic Subsidiary and each such new Wholly-Owned Dutch Subsidiary, to the extent requested by the Administrative Agent or the Required Lenders, shall take all actions required pursuant to this
Section 9.12. In addition, each new Wholly-Owned Subsidiary that is required to execute any Credit Document (other than any Wholly-Owned Subsidiary that is not a Credit Party) shall execute and deliver, or cause to be executed and delivered,
all other relevant documentation (including opinions of counsel (which shall be substantially similar to those opinions delivered on the Effective Date)) of the type described in Section 6 as such new Wholly-Owned Subsidiary would have had to
deliver if such new Wholly-Owned Subsidiary were a Credit Party on the Effective Date.
(e) At the time that any Credit Party grants a
Lien or other security interest in any Permitted Additional Secured Indebtedness Priority Collateral to secure any Permitted Additional Secured Indebtedness or Cash Flow Revolving Indebtedness, such Credit Party, concurrently therewith, shall enter
into one or more additional security documents and/or Mortgages (collectively, “Additional Security Documents”) and/or amend any then existing Security Document, in each case in form and substance reasonably satisfactory to the
Administrative Agent, pursuant to which such Credit Party shall grant a Second Priority Lien and security interest to the Collateral Agent, for the benefit of the Secured Creditors, in such Permitted Additional Secured Indebtedness Priority
Collateral. All such security interests shall constitute valid and enforceable perfected security interests subject to no Liens except for Permitted Liens and shall be subject to the terms of the Intercreditor Agreement. In connection therewith,
each such Credit Party shall take all such further actions described in clause (a) of this Section 9.12 as the Collateral Agent may reasonably request.
(f) If, as of the last day of any fiscal quarter of the Company, the aggregate consolidated assets (excluding intercompany assets) of all
Immaterial Subsidiaries exceeds 10.0% of Consolidated Total Assets (as set forth in the most recent consolidated balance sheet of the Company and its Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with
GAAP) or the aggregate consolidated total revenues of all Immaterial Subsidiaries exceeds 10.0%
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of the consolidated total revenues of the Company and its Subsidiaries (as set forth in the most recent income statement of the Company and its Subsidiaries delivered to the Lenders pursuant to
this Agreement and computed in accordance with GAAP) then, within 45 days after the end of any such fiscal quarter (or, if such fiscal quarter is the fourth fiscal quarter of the Company, within 90 days thereafter) (as either such date may be
extended by the Administrative Agent in its sole discretion)), the Company shall cause one or more Immaterial Subsidiaries to take the actions specified in Section 9.12(c) on the same basis that any newly formed or acquired Wholly-Owned
Domestic Subsidiary of Tesla B.V. or any Wholly-Owned Dutch Subsidiary of the Company would have to take; provided, however, such actions shall only be required to the extent that, after giving effect to such actions, the aggregate
consolidated assets (excluding intercompany assets) of all Immaterial Subsidiaries do not exceed 10.0% of Consolidated Total Assets and the aggregate consolidated total revenues of all Immaterial Subsidiaries do not exceed 10.0% of consolidated
total revenues of the Company and its Subsidiaries (as set forth in the most recent income statement of the Company and its Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP).
(g) At any time that the Company desires that a then existing Wholly-Owned Domestic Subsidiary of the Company (other than a Securitization
Subsidiary or an Excluded Energy Storage Subsidiary) or Wholly-Owned Dutch Subsidiary of Tesla B.V. (other than a Securitization Subsidiary or an Excluded Energy Storage Subsidiary) become a U.S. Borrower or a Dutch Borrower hereunder after the
Effective Date, such Wholly Owned Subsidiary shall satisfy the following conditions at the time it becomes a U.S. Borrower or a Dutch Borrower, as the case may be: (i) the consent of the Administrative Agent shall have been obtained (which
consent shall not be unreasonably withheld); (ii) each such Wholly-Owned Subsidiary shall become a party to this Agreement and each applicable Note by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement (or
other applicable joinder agreement reasonably satisfactory to the Administrative Agent and the Company); (iii) to the extent not already a party thereto, each such Wholly-Owned Domestic Subsidiary shall become a party to each of the
Intercreditor Agreement if then in effect, the U.S. Security Agreement and the U.S. Guaranty and each other applicable Security Document, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement (or
other applicable joinder agreement reasonably satisfactory to the Administrative Agent and the Company); (iv) to the extent not already a party thereto, each such Wholly-Owned Dutch Subsidiary shall become a party to each of the Intercreditor
Agreement if then in effect and applicable, the Dutch Security Agreements and the Dutch Guaranty and each other applicable Security Document, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement
(or other applicable joinder agreement reasonably satisfactory to the Administrative Agent and the Company) and any related documentation required by such Joinder Agreement (or other applicable joinder agreement); (v) each such Wholly-Owned
Subsidiary shall have provided all documentation and other information that the Administrative Agent or any Lender reasonably requests in order to comply with its ongoing obligations under the applicable “know your customer” and anti-money
laundering rules and regulations, including the Patriot Act and (vi) each such Wholly-Owned Subsidiary, to the extent requested by the Administrative Agent or the Required Lenders, shall take all actions required pursuant to Section 9.12
to the extent not previously taken by such Wholly-Owned Subsidiary. In addition, each such Wholly-Owned Subsidiary shall execute and deliver, or cause to be executed and delivered, all other relevant documentation (including opinions of counsel
(which shall be substantially similar to those opinions delivered on the Effective Date)) of the type described in Section 6 as such Wholly-Owned Subsidiary would have had to deliver if such Wholly-Owned Subsidiary were a Borrower on the
Effective Date.
(h) In the event that the Company does not provide an Acceptable Field Examination as required by Section 6.14(ii)
on or prior to the Effective Date, the Company will deliver such Acceptable Field Examination as soon as practicable, but in any event within 90 days following the Effective Date (as such date may be extended from time to time by the Administrative
Agent in its sole discretion).
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(i) The Dutch Credit Parties will deliver (i) a Supplemental Security Agreement (as defined
in the Dutch Receivables Security Agreement) satisfying the requirements of Section 2.2 of the Dutch Receivables Security Agreement as and when required by Section 2.2 of the Dutch Receivables Security Agreement and (ii) a
Supplemental Security Agreement (as defined in the Dutch Inventory Security Agreement) satisfying the requirements of Section 2.2 of the Dutch Inventory Security Agreement as and when required by Section 2.2 of the Dutch Inventory Security
Agreement.
9.13. Information Regarding Collateral.
(a) The Company and the other Borrowers will furnish to the Administrative Agent prompt written notice of:
(i) with respect to any U.S. Credit Party, any change in any U.S. Credit Party’s (A) legal name,
(B) organizational identity, (C) organizational identification number, (D) in the case of any U.S. Credit Party that is not a registered organization for purposes of Section 9-307 of the UCC, its place of business or, if it has
more than one place of business, its chief executive office, or (E) its federal taxpayer identification number;
(ii)
with respect to any Dutch Credit Party, any change (A) in such Dutch Credit Party’s corporate name, (B) in the location of such Dutch Credit Party’s chief executive office, its principal place of business, registered office, any
office in which it maintains books or records relating to Collateral (other than de-minimis portions of Collateral) owned by it or any office or facility at which Collateral owned by it is located (including the establishment of any such new office
or facility), or (C) in such Dutch Credit Party’s identity.
(b) Within five Business Days prior to any change referred to in
clause (a) above, the Company and the other Credit Parties agree to make, or to provide to the Collateral Agent all the information required to enable it to make, all filings under the UCC (or foreign equivalent) or otherwise that are required
in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral.
9.14. COMI. Each Credit Party incorporated in a jurisdiction where the Insolvency Regulation applies, shall maintain its centre of main
interest (as that term is used in Section 3(1) of the Insolvency Regulation) in its jurisdiction of incorporation and shall not create or maintain any establishment (as defined in section 2(h) of the Insolvency Regulation) in any other
jurisdiction.
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SECTION 10. Negative Covenants. Each of the Company and the other Borrowers hereby
covenants and agrees that on and after the Effective Date and until the Total Revolving Loan Commitment and all Letters of Credit have terminated (or have been cash collateralized or backstopped by another letter of credit, in either case on terms
and pursuant to arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such cash collateral or backstop letter of credit to be in a stated amount equal to
at least 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time)) and the Loans, Notes and Unpaid Drawings (in each case, together with interest thereon), Fees and all other Obligations (other than any indemnities and
other contingent payment obligations of the Credit Parties set forth in the Credit Documents and reimbursement obligations under Section 13.01 which, in either case are not then due and payable) incurred hereunder and thereunder, are paid in
full:
10.01. Liens. The Company will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of the Company or any of its Subsidiaries, whether now owned or hereafter acquired or knowingly permit the filing of any financing statement under the
UCC or any other similar notice of Lien under any similar recording or notice statute; provided that the provisions of this Section 10.01 shall not prevent the creation, incurrence, assumption or existence of the following (Liens
described below are herein referred to as “Permitted Liens”):
(a) (i) Liens for taxes, assessments or governmental
charges or levies not yet delinquent or (ii) Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP;
(b) Liens in respect of property or assets of the Company or any of its Subsidiaries imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such as freight carriers’ and forwarders’, warehousemen’s, bailee’s, materialmen’s and mechanics’ liens and other similar Liens arising in the
ordinary course of business, and (i) which do not in the aggregate materially detract from the value of the Company’s or such Subsidiary’s property or assets or materially impair the use thereof in the operation of the business of the
Company or such Subsidiary or (ii) which are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien;
(c) Liens in existence on the Effective Date which are listed, and the property subject thereto described, in Schedule 10.01 to the
Disclosure Letter, plus renewals, replacements, refinancings and extensions of such Liens; provided that (i) the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not exceed that amount outstanding at the
time of any such renewal, replacement, refinancing or extension (plus the sum of (1) accrued and unpaid interest and fees thereon, (2) any prepayment premiums and (3) customary fees and expenses relating to such renewal, replacement,
refinancing or extension) and (ii) any such renewal, replacement or extension does not encumber any additional assets or properties of the Company or any of its Subsidiaries;
(d) Liens created by or pursuant to this Agreement and the Security Documents;
(e) (i) licenses, sublicenses, leases or subleases granted by the Company or any of its Subsidiaries to other Persons not materially
interfering with the conduct of the business of the Company or any of its Subsidiaries and (ii) any interest or title of a lessor, sublessor or licensor under any lease or license agreement not prohibited by this Agreement to which the Company
or any of its Subsidiaries is a party;
(f) Liens upon assets of the Company or any of its Subsidiaries subject to Capitalized Lease
Obligations (including the financing of such related installation, maintenance or software licensing charges) and any renewals, replacements, refinancings or extensions thereof for the same or a lesser amount (plus the sum of (1) accrued and
unpaid interest and fees thereon, (2) any prepayment premium and (3) customary fees and expenses relating to such renewal, replacement, refinancing or extension), to the extent such Capitalized Lease Obligations or renewals, replacements,
refinancings or extensions thereof are permitted by Section 10.04(d) or Section 10.04(p); provided that (i) such Liens only serve to secure the payment of Indebtedness arising under such Capitalized Lease Obligation or renewal,
replacement, refinancing or extension thereof and (ii) the Lien encumbering the asset giving rise to the Capitalized Lease Obligation or renewal, replacement, refinancing or extension thereof does not encumber any other asset of the Company or
any of its Subsidiaries (other than accessions to such assets or proceeds thereof and related property);
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(g) purchase money Liens (including the interests of vendors and lessors under conditional sale
and title retention agreements) placed upon assets (or any improvements thereto) of the Company or any of its Subsidiaries and placed at the time of the acquisition thereof by the Company or such Subsidiary (or in the case of improvements, at the
time of construction or repair) or within 365 days thereafter to secure Indebtedness incurred to pay all or a portion of the purchase price thereof, plus related installation, maintenance and software licensing costs, or to secure Indebtedness
incurred solely for the purpose of financing the acquisition of any such asset or extensions, renewals, refinancings or replacements of any of the foregoing for the same or a lesser amount (plus the sum of (1) accrued and unpaid interest and
fees thereon, (2) any prepayment premium and (3) customary fees and expenses relating to such renewal, replacement, refinancing or extension); provided that (i) the Indebtedness secured by such Liens is permitted by
Section 10.04(d) or Section 10.04(p) and (ii) in all events, the Lien encumbering such assets so acquired does not encumber any other asset of the Company or any of its Subsidiaries (other than accessions to such assets or proceeds
thereof and related property);
(h) (x) easements, rights-of-way, restrictions, encroachments and other similar charges or encumbrances,
and minor title deficiencies, in each case not securing Indebtedness and not materially interfering with the conduct of the business of the Company or any of its Subsidiaries and (y) if applicable, any Permitted Encumbrances;
(i) Liens arising from precautionary UCC financing statement filings (or other foreign equivalent filings) regarding operating leases entered
into in the ordinary course of business;
(j) Liens arising out of the existence of judgments or awards that do not otherwise constitute
an Event of Default under Section 11.10;
(k) statutory, contractual and common law landlords’ liens under leases to which the
Company or any of its Subsidiaries is a party;
(l) Liens (other than Liens imposed under ERISA) incurred in the ordinary course of
business in connection with workers compensation claims, unemployment insurance and social security benefits and Liens securing the performance of bids, tenders, leases and contracts in the ordinary course of business, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business (exclusive of obligations in respect of the payment for borrowed money);
(m) Liens on property or assets acquired pursuant to an Acquisition, or on property or assets of a Subsidiary of the Company in existence at
the time such Subsidiary is acquired pursuant to an Acquisition and any renewals, replacements, refinancings or extensions thereof for the same or a lesser amount (plus the sum of (1) accrued and unpaid interest and fees thereon, (2) any
prepayment premium and (3) customary fees and expenses relating to such renewal, replacement, refinancing or extension); provided that (i) any Indebtedness and any renewals, replacements, refinancings or extensions thereof that is
secured by such Liens is permitted to exist under Section 10.04(g), and (ii) such Liens are not incurred in connection with, or in contemplation or anticipation of, such Acquisition (other any renewals, replacements, refinancings or
extensions of Indebtedness permitted by Section 10.04(g)) and do not attach to any other asset of the Company or any of its Subsidiaries;
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(n) Liens arising out of any conditional sale, title retention, consignment or other similar
arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business to the extent such Liens do not attach to any assets other than the goods subject to such arrangements;
(o) Liens (i) incurred in the ordinary course of business in connection with the purchase or shipping of goods or assets (or the related
assets and proceeds thereof), which Liens are in favor of the seller, broker or shipper of such goods or assets and only attach to such goods or assets, and (ii) in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;
(p) bankers’ Liens, rights of setoff and other similar Liens
existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts (other than the Core Dutch Deposit Accounts) maintained by the Company or any of its Subsidiaries, in each case granted in the ordinary course of business
in favor of the bank or banks or other financial institutions with which such accounts are maintained, securing amounts owing to such bank or banks with respect to cash management and operating account arrangements;
(q) Liens granted in the ordinary course of business on insurance policies, proceeds thereof and the unearned portion of insurance premiums
with respect thereto securing the financing of the unpaid cost of the insurance policies to the extent the financing is permitted under Section 10.04;
(r) Liens on earnest money deposits made in the ordinary course of business in connection with any agreement in respect of an anticipated
Acquisition or other Investment;
(s) Liens on Collateral (including Permitted Additional Secured Indebtedness Priority Collateral that
is to become Collateral) securing Permitted Additional Secured Indebtedness or Cash Flow Revolving Indebtedness so long as an Intercreditor Agreement is in full force and effect and any Liens on ABL Priority Collateral are junior to the Liens of the
Collateral Agent on such ABL Priority Collateral;
(t) Liens on cash and Cash Equivalents to secure (x) the Company’s or its
respective Subsidiary’s reimbursement obligations under letters of credit, performance bonds, surety bonds and bid bonds permitted under Section 10.04(m) so long as the aggregate amount of such cash and Cash Equivalents pledged to secure
such Indebtedness does not exceed at any time 102% of the aggregate outstanding amount of such Indebtedness (or, in the case of undrawn letters of credit, the aggregate undrawn face amount thereof) or (y) indemnification obligations relating to
dispositions not prohibited by this Agreement and entered into in the ordinary course of business;
(u) licensing and cross-licensing
arrangements entered into by the Company and its Subsidiaries for purposes of enforcing, defending or settling claims with respect to the intellectual property of the Company and its Subsidiaries;
(v) Liens on the Gigafactory Assets or Energy Storage Assets securing Indebtedness permitted by Section 10.04(r);
(w) Liens on assets and property of Subsidiaries that are not Credit Parties securing Indebtedness permitted by Section 10.04(o) or
(v) and Liens (to the extent expressly contemplated by Section 10.04(v)) on property of Tesla B.V., securing Indebtedness permitted by Section 10.04(v);
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(x) Liens on Securitization Related Assets of a Securitization Subsidiary in connection with the
sale of such Securitization Related Assets pursuant to a Permitted Securitization Facility;
(y) additional Liens on assets or property
(other than ABL Priority Collateral) of the Company or any of its Subsidiaries not otherwise permitted by this Section 10.01 that secure outstanding obligations in an aggregate principal amount at any time outstanding not to exceed the greater
of $60,000,000 or 1.0% of Consolidated Total Assets in the aggregate for all such Liens at any time;
(z) customary Liens granted in
favor of a trustee pursuant to an indenture relating to Indebtedness not prohibited by this Agreement to the extent such Liens (i) secure only customary compensation, indemnification and reimbursement obligations owing to such trustee under
such indenture and any agreements entered into by such trustee (as trustee or collateral agent) in connection therewith and (ii) are limited to the cash or other collateral held by such trustee (excluding cash held in trust for the payment of
such Indebtedness);
(aa) Liens securing repurchase obligations permitted by clause (iv) of the definition of Cash Equivalents;
(bb) deposits as security for contested taxes or contested import or customs duties;
(cc) customary rights of first refusal, voting, redemption, transfer or other restrictions with respect to the Equity Interests in any joint
venture entities or other Persons that are not Subsidiaries; and
(dd) Liens on cash and Cash Equivalents arising in connection with the
defeasance, discharge or redemption of Indebtedness not prohibited by this Agreement.
In connection with the granting of Liens of the type described in
clauses (c), (f), (g), (i), (l), (m), (t), (v) and (x) of this Section 10.01 by the Company or any of its Subsidiaries, the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate by it
in connection therewith (including by executing appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject
to such Liens).
10.02. Fundamental Changes. (a) The Company will not, and will not permit any of its Subsidiaries to,
(x) merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, (y) sell, transfer, license, lease, enter into any sale-leaseback transactions with respect to, or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole or (z) liquidate or dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) (x) any Subsidiary or any
other Person (other than the Company) may merge into or consolidate with a U.S. Borrower in a transaction in which such U.S. Borrower is the surviving corporation and (y) any Foreign Subsidiary (other than Tesla B.V.) or any other Person (other
than the Company, Tesla B.V. or any Domestic Subsidiary) may merge into or consolidate with a Dutch Borrower in a transaction in which such Dutch Borrower is the surviving corporation;
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(ii) (x) any Person (other than a Borrower) may merge into or consolidate
with any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that (A) any such merger or consolidation involving a U.S. Credit Party must result in a U.S. Credit Party as the surviving entity and
(B) subject to clause (A) above, any such merger or consolidation involving a Dutch Credit Party must result in a Dutch Credit Party as the surviving entity);
(iii) the Company or any Subsidiary may sell, transfer, license, lease or otherwise dispose of its assets to the Company or to
another Subsidiary;
(iv) any Subsidiary (other than a Borrower) may liquidate or dissolve if the Company determines in
good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders; and
(v) any Subsidiary may merge into or consolidate with any other Person in a transaction not otherwise prohibited hereunder and
all or substantially all of the Equity Interests of any Subsidiary may be sold, transferred or otherwise disposed of, in a transaction not otherwise prohibited hereby.
(b) The Company will not, and will not permit any U.S. Credit Party or Dutch Credit Party, to change its jurisdiction of organization to the
extent that it involves (i) a U.S. Credit Party ceasing to be organized in the United States or (ii) a Dutch Credit Party ceasing to be organized in the Netherlands.
10.03. Dividends. The Company will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with
respect to the Company or any of its Subsidiaries, except that:
(a) any Subsidiary of the Company may pay Dividends to the Company or to
any Wholly-Owned Subsidiary of the Company;
(b) any Non-Wholly-Owned Subsidiary of the Company may pay Dividends to its shareholders,
members or partners generally, so long as the Company or its respective Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the
Equity Interest in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary);
(c) the Company may redeem, repurchase or otherwise acquire for value outstanding shares of Company Common Stock (or options, warrants or
other rights to acquire such Company Common Stock) following the death, disability, retirement or termination of employment or service of officers, directors or employees of the Company or any of its Subsidiaries, provided that (x) the
aggregate amount of all such redemptions and repurchases pursuant to this Section 10.03(c) shall not exceed $25,000,000 in any fiscal year of the Company (less the amount of any such redemption or repurchase effected by the forgiveness of
Indebtedness owed to the Company by such officer, director or employee) and (y) at the time of any such redemption or repurchase permitted to be made pursuant to this Section 10.03(c), no Default or Event of Default shall then exist or
result therefrom;
(d) the Company may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the terms thereof
solely through the issuance of additional shares of such Qualified Preferred Stock (but not in cash), provided that in lieu of issuing additional shares of such Qualified Preferred Stock as Dividends, the Company may increase the liquidation
preference of the shares of Qualified Preferred Stock in respect of which such Dividends have accrued;
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(e) the Company may pay or make Dividends if the Payment Conditions are satisfied both before
and after giving effect to the payment or making of such Dividends; provided that the Company may pay dividends on its capital stock within 60 days of the declaration thereof if, on the declaration date, the Payment Conditions were satisfied;
(f) the Company may acquire shares of its Equity Interests in connection with the exercise of stock options or warrants to the extent such
Equity Interests represent a portion of the exercise price of those stock options or warrants by way of cashless exercise;
(g) the
Company may make Dividends consisting of the issuance of equity rights convertible into Qualified Preferred Stock in connection with “anti-takeover” and “poison pill” arrangements approved by the Board of Directors of the Company
and make redemptions of such rights; provided that (i) such redemptions are in accordance with the terms of such arrangements and (ii) the aggregate amount of all such redemptions made during the term of this Agreement do not exceed
$5,000,000;
(h) the Company may make Dividends to directors, officers and employees of the Company and its Subsidiaries in connection
with any incentive plans approved by the Board of Directors of the Company consisting of (i) shares of Company Common Stock (or options, warrants and other equity instruments in respect thereof), (ii) cash incentive bonuses, and
(iii) stock appreciation rights or performance units, including any cash payments in connection therewith;
(i) the Company may
settle or otherwise repurchase any Issuer Option;
(j) the Company may accrue dividends on its capital stock;
(k) the Company may repurchase or pay cash in lieu of fractional shares of its Equity Interests arising out of stock dividends, splits or
combinations, business combinations or conversions of convertible securities or the exercise of warrants;
(l) the Company and its
Subsidiaries may pay withholding taxes in connection with the retention of Equity Interests pursuant to equity-based compensation plans;
(m) the Company or any Subsidiary may receive or accept the return to the Company or any Subsidiary of Equity Interests of the Company or any
Subsidiary constituting a portion of the purchase price consideration in settlement of indemnification claims;
(n) the Company may make
payments or distributions to dissenting stockholders as required by applicable law in connection with a merger, consolidation or transfer of assets permitted by this Agreement; and
(o) if no Default or Event of Default then exists or would result therefrom, the Company may pay or make Dividends in an aggregate amount not
to exceed, together with any payments, prepayments, redemptions or acquisitions for value made pursuant to Section 10.08(a)(iv), $25,000,000.
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10.04. Indebtedness. The Company will not, and will not permit any of its Subsidiaries to,
contract, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and
the other Credit Documents;
(b) Existing Indebtedness outstanding on the Effective Date and, except for intercompany Indebtedness among
the Company and its Subsidiaries, listed on Schedule 8.20 to the Disclosure Letter (as reduced by any repayments of principal thereof after the Effective Date for which the obligor thereunder has no right to reborrow pursuant to the terms of such
Indebtedness), and any subsequent extension, renewal, replacement or refinancing thereof; provided that the aggregate principal amount of the Indebtedness to be extended, renewed or refinanced or the aggregate commitment in respect of such
Indebtedness does not exceed that amount outstanding or commitment then in effect at the time of any such extension, renewal, replacement or refinancing (although in no event shall the amount of any such commitment exceed that amount in effect on
the Effective Date, as reduced by any permanent commitment reductions thereafter) (plus the sum of (A) accrued and unpaid interest and fees thereon, (B) any prepayment premium and (C) customary fees and expenses relating to such
extension, renewal, replacement or refinancing);
(c) Indebtedness (i) of the Company and its Subsidiaries under Interest Rate
Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.04 and (ii) of the Company and its Subsidiaries under Other Hedging Agreements entered into in the ordinary course of business and
providing protection to the Company and its Subsidiaries against fluctuations in currency values or commodity prices in connection with the Company’s or any of its Subsidiaries’ ordinary course of business operations, in either case so
long as the entering into of such Interest Rate Protection Agreements or Other Hedging Agreements are bona fide hedging activities and are not for speculative purposes;
(d) Indebtedness of the Company and its Subsidiaries evidenced by Capitalized Lease Obligations (including the financing of such related
installation, maintenance or software licensing charges) and purchase money Indebtedness secured by Liens described in Sections 10.01(f) and (g) and any subsequent extension, renewal, replacement or refinancing thereof as permitted by such
Sections 10.01(f) and (g); provided that Indebtedness incurred in reliance on this clause (d) shall only be permitted to the extent at the time of incurrence it constitutes Permitted Ratio Indebtedness; provided further
that the aggregate amount of Basket-Related Permitted Indebtedness outstanding at any time pursuant to this clause (d) or Section 10.04(n) shall not exceed $2,000,000,000;
(e) Indebtedness constituting Intercompany Loans;
(f) Indebtedness consisting of unsecured guarantees by (i) a U.S. Borrower of the Indebtedness and lease and other contractual
obligations of its Wholly-Owned Subsidiaries in the ordinary course of business, (ii) the U.S. Credit Parties of each other’s Indebtedness and lease and other contractual obligations (other than obligations in respect of Permitted
Convertible Notes), (iii) the Dutch Credit Parties of each other’s Indebtedness and lease and other contractual obligations and (iv) Subsidiaries of the Company that are not Credit Parties of each other’s Indebtedness and lease
and other contractual obligations, in each case to the extent that the guaranteed Indebtedness or lease or other contractual arrangement is otherwise permitted under this Agreement;
(g) Indebtedness of a Subsidiary of the Company acquired pursuant to an Acquisition (or Indebtedness assumed at the time of an Acquisition of
an asset securing such Indebtedness); provided that (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Acquisition, (ii) such Indebtedness does not constitute debt for borrowed
money, it being understood and agreed that Capitalized Lease Obligations, purchase money Indebtedness and mortgage financing in respect of any Real Property shall not constitute debt for borrowed money for purposes of this subclause (ii), and
(iii) the aggregate principal amount of all Indebtedness permitted by this clause (g) shall not exceed $100,000,000 at any one time outstanding;
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(h) Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary course of business, if such Indebtedness is extinguished within ten Business Days of the incurrence thereof;
(i) Indebtedness of the Company and its Subsidiaries with respect to performance bonds, surety bonds, appeal bonds, guarantees or customs
bonds or similar bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of the Company or any of its Subsidiaries or in connection with judgments that do not result in an Event of Default;
(j) Indebtedness owed to any Person providing property, casualty, liability or other insurance to the Company or any of its Subsidiaries, so
long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding
only for a period not exceeding twelve months;
(k) Indebtedness of the Company or any of its Subsidiaries which may be deemed to exist
in connection with agreements providing for indemnification, severance arrangements, purchase price adjustments, earnouts, stay bonuses and similar obligations in connection with the acquisition or disposition of assets permitted by this Agreement,
so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any other Person except as permitted by Section 10.04(f);
(l) Indebtedness of the Company under (x) the Existing Convertible Notes and (y) any renewal, extension, exchange, replacement or
refinancing of any Existing Convertible Notes (including any new issuance of unsecured convertible notes to effect the foregoing), provided that at the time of such renewal, extension, exchange, replacement, refinancing or issuance (i) no
Default or Event of Default exists or would result therefrom, (ii) any aggregate net cash proceeds from any such new issuances are promptly (within 60 days) applied to repay, redeem or satisfy all or a portion of any then outstanding Existing
Convertible Notes, (iii) such Indebtedness shall not have any scheduled maturity or mandatory redemption, prepayment, amortization, sinking fund or similar obligation (other than pursuant to customary change of control, fundamental change,
make-whole fundamental change or other similar event risk provisions and, for the avoidance of doubt, provisions providing for Net Share Settlement) prior to the date which is six months after the Final Maturity Date in effect at the time of such
renewal, extension, exchange, replacement, refinancing or issuance, (iv) the aggregate principal amount of such new Indebtedness (or if incurred with original issue discount, the sum of the aggregate issue price and any accreted principal
amount) does not exceed the aggregate principal amount (or if incurred with original issue discount, the aggregate issue price plus any accreted amount) of the Existing Convertible Notes to be renewed, extended, exchanged, replaced or refinanced
(plus the sum of (A) accrued and unpaid interest thereon, (B) any prepayment or exchange premium, (C) customary premium, fees and expenses relating to such renewal, extension, exchange, replacement, refinancing or issuance), and
(D) any amount that would be available to be incurred as Permitted Ratio Debt (and such amount utilized under this clause shall be counted as Permitted Ratio Debt), and (v) the covenants and events of default applicable to such
Indebtedness are no more restrictive, taken as a whole, than the covenants and events of default set forth in this Agreement (as determined by the Company in good faith), except for (x) provisions applicable only to periods after the Final
Maturity Date in effect at the time of renewal, extension or incurrence of such Indebtedness, and (y) provisions related to any equity provisions of such Indebtedness; provided, that cash payments may also be made as part of any exchange
transaction permitted under this Section 10.04(l) if (A) such cash payments are
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in respect of accrued and unpaid interest, (B) if the Payment Conditions are satisfied at the time of such exchange or (C) amounts are available under Section 10.08(a)(v) (it being
understood that any cash payments made pursuant to this clause (C) shall be deemed a usage of the amounts available under Section 10.08(a)(v));
(m) Indebtedness of the Company or any of its Subsidiaries for reimbursement obligations relating to letters of credit (other than Letters of
Credit, but inclusive of any letters of credit that constitute Existing Indebtedness), performance bonds, surety bonds and bid bonds so long as the sum of the aggregate available amount of all such letters of credit (and any unreimbursed drawings in
respect thereof) and the then outstanding amount of performance bonds, surety bonds and bid bonds does not at any time exceed $100,000,000;
(n) Indebtedness of any Credit Party (which Indebtedness may be (A) (a) unsecured or (b) to the extent permitted below in this
clause (n), secured by a Lien on the Collateral (including any Permitted Additional Secured Indebtedness Priority Collateral that will become Collateral) and (B) guaranteed (other than in respect of Additional Convertible Notes) on a like basis
by the other Credit Parties), if at the time of issuance or incurrence (i) no Default or Event of Default then exists or would result therefrom, (ii) such Indebtedness does not have a scheduled maturity earlier than six months after the
Final Maturity Date in effect at the time of issuance or incurrence of such Indebtedness (other than an earlier maturity date for customary fundamental change, make-whole fundamental change, change of control or other similar event risk provisions
or customary bridge financings which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for a maturity date earlier than six months after such
Final Maturity Date), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes providing for Net Share Settlement thereof shall not cause the Permitted Convertible Notes to fail to satisfy the provisions of this
clause (ii), (iii) such Indebtedness does not have any mandatory redemption, prepayment, amortization, sinking fund or similar obligations prior to such Final Maturity Date (other than pursuant to (x) fundamental change, make-whole
fundamental change, change of control or other similar event risk provisions and, in the case of term loans or senior notes that are not convertible into Equity Interests only, customary asset sale (or casualty or condemnation event), extraordinary
receipts and/or (solely in the case of term loans) excess cash flow offer or repayment provisions and, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted
hereunder which meets the requirements of this definition and customary asset sale (or casualty or condemnation event) repayment provisions, and (y) in the case of term loans, nominal amortization requirements not to exceed 1% per annum of
the initial aggregate principal amount of such Indebtedness), provided that for the avoidance of doubt, any provision of Permitted Convertible Notes providing for Net Share Settlement thereof shall not cause the Permitted Convertible Notes to
fail to satisfy the provisions of this clause (iii), (iv) the covenants and events of default set forth in the applicable Permitted Additional Indebtedness Documents are no more restrictive, taken as a whole, than the covenants and events of
default set forth in this Agreement (as determined by the Company in good faith), except for (x) provisions applicable only to periods after the Final Maturity Date in effect at the time of effectiveness of the applicable Permitted Additional
Indebtedness Documents and (y) provisions related to any equity provisions of such Indebtedness, (v) to the extent such Indebtedness is subordinated, the terms of such Indebtedness provide for customary payment or lien subordination, as
applicable, to the Obligations as reasonably determined by the Administrative Agent in good faith, (vi) if such Indebtedness is secured, (x) it shall not be secured by any assets or property other than Collateral securing the Obligations
(including any assets or property of the Credit Parties that are not covered by the Security Documents on the Effective Date but which will secure the Obligations from and after the issuance of such Indebtedness as contemplated by
Section 9.12(e)), (y) at the time of the entering into of any such Indebtedness, an Intercreditor Agreement shall have been entered into and
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shall be in full force and effect and the Credit Parties shall have complied with their obligations under Section 9.12(e), and (z) the Intercreditor Agreement shall provide, inter alia,
that the Collateral Agent, for the benefit of the Secured Creditors, shall retain a First Priority Lien on the ABL Priority Collateral and shall have a Second Priority Lien on the Permitted Additional Secured Indebtedness Priority Collateral and
(vii) such Indebtedness shall either (x) at the time of incurrence constitute Permitted Ratio Indebtedness (provided that the aggregate amount of Basket-Related Permitted Indebtedness outstanding at any time pursuant to this clause
(n) or Section 10.04(d) shall not exceed $2,000,000,000) or (y) be in an aggregate principal amount, together with Indebtedness incurred and outstanding pursuant to Section 10.04(o), not to exceed $1,000,000,000 at any time
outstanding; provided, however, the requirements of the preceding clause (vii) shall not apply to any Indebtedness incurred or issued pursuant to this clause (n) if such Indebtedness is exchanged for or 100% of the net cash
proceeds therefrom are applied to repay, repurchase, redeem or defease any then outstanding Ratio-Related Permitted Indebtedness contemporaneously with the incurrence or issuance of such Indebtedness (all unsecured Indebtedness incurred or issued
under this clause (n) is referred to as “Permitted Additional Unsecured Indebtedness” and all secured Indebtedness incurred or issued under this clause (n) is referred to as “Permitted Additional Secured
Indebtedness”);
(o) if no Default or Event of Default then exists or would result therefrom, additional Indebtedness incurred
by any Subsidiary that is not a Credit Party (which Indebtedness may be (A) unsecured or secured and (B) guaranteed on a like basis by other Subsidiaries that not Credit Parties) in an aggregate principal amount, together with Indebtedness
incurred and outstanding pursuant to Section 10.04(n)(vii)(y), not to exceed $1,000,000,000 at any time outstanding; provided that if such Indebtedness is secured it shall only be secured by assets or property of Subsidiaries that are
not Credit Parties (all Indebtedness incurred or issued under this clause (o) is referred to as “Permitted Non-Credit Party Indebtedness”);
(p) Indebtedness of the Company and its Subsidiaries evidenced by Capitalized Lease Obligations (including the financing of such related
installation, maintenance or software licensing charges) and purchase money Indebtedness (including the financing of such related installation, maintenance or software licensing charges) secured by Liens described in Sections 10.01(f) and
(g) and any subsequent extension, renewal, replacement or refinancing thereof as permitted by such Sections 10.01(f) and (g); provided that the applicable Capitalized Lease Obligation is in respect of Equipment or such Indebtedness is
incurred to pay all or a portion of the purchase price of Equipment; provided further that in no event shall the sum of the aggregate principal amount of all Indebtedness permitted by this clause (p) exceed $600,000,000 at any
time outstanding;
(q) Indebtedness of any Credit Party in the nature of revolving loans (which Indebtedness may be
(A) (1) unsecured or (2) to the extent permitted below in this clause (q), secured by a Lien on the Collateral (including any Permitted Additional Secured Indebtedness Priority Collateral that will become Collateral) and
(B) guaranteed on a like basis by the other Credit Parties); provided that (i) no Default or Event of Default then exists or would result therefrom, (ii) the commitments thereunder do not terminate earlier than six months after
the Final Maturity Date in effect at the time of incurrence of such Indebtedness, (iii) the covenants and events of default set forth in the applicable Cash Flow Revolving Documents are no more restrictive, taken as a whole, than the covenants
and events of default set forth in this Agreement (as determined by the Company in good faith), except for provisions applicable only to periods after the Final Maturity Date in effect at the time of effectiveness of the applicable Cash Flow
Revolving Documents, (iv) if such Indebtedness is secured (x) it shall not be secured by any assets or property other than Collateral securing the Obligations (including any assets or property of the Credit Parties that are not covered by
the Security Documents on the Effective Date but which will secure the Obligations from and after the issuance of such Indebtedness as contemplated by Section 9.12(e)), (y) at the time of the entering into of any such
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Indebtedness, an Intercreditor Agreement shall have been entered into and shall be in full force and effect and the Credit Parties shall have complied with their obligations under
Section 9.12(e), and (z) the Intercreditor Agreement shall provide, inter alia, that the Collateral Agent, for the benefit of the Secured Creditors, shall retain a First Priority Lien on the ABL Priority Collateral and shall have a Second
Priority Lien on the Permitted Additional Secured Indebtedness Priority Collateral, (v) the initial Cash Flow Revolving Documents in respect of the Indebtedness permitted by this clause (q) are entered into (and the revolving commitments
in respect of the Indebtedness permitted by this clause (q) become effective) no later than the first anniversary of the Effective Date, (vi) the aggregate principal amount of all Indebtedness incurred and outstanding under this clause
(q) does not exceed $250,000,000 at any time and (vii) prior to the incurrence or issuance of such Indebtedness, the Company shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Company certifying
as to compliance with the requirements of the preceding clauses (i) through (vi) (all Indebtedness incurred or issued under this clause (q) is referred to as “Cash Flow Revolving Indebtedness”);
(r) Indebtedness of the Company or any of its Subsidiaries secured by a Lien on Gigafactory Assets or Energy Storage Assets, including an
Energy Storage Working Capital Facility; provided that such Indebtedness shall not be secured by any assets other than Gigafactory Assets or Energy Storage Assets, and in each case other related assets, such as chattel paper and payment
intangibles, that in the reasonable opinion of the Company are customary for financing transactions related to such assets;
(s)
Indebtedness of Securitization Subsidiaries in respect of Permitted Securitization Facilities and any indemnity in respect thereof described in clause (b) of the definition of Permitted Securitization Facilities;
(t) Indebtedness arising under a declaration of joint and several liability in respect of the Borrowers and/or Guarantors used for the
purpose of section 2:403 of the Dutch Civil Code (and any residual liability under such declaration arising pursuant to section 2:402(2) of the Dutch Civil Code);
(u) Indebtedness consisting of the accretion of original issue discount with respect to Additional Convertible Notes;
(v) Indebtedness of Tesla B.V. or any Subsidiary that is not a Credit Party secured by assets of Tesla B.V. or such Subsidiary that are not
included in the Dutch Borrowing Base and are in-transit for delivery to a Subsidiary that is not a Credit Party, which Subsidiary shall take ownership of such assets no later than upon delivery thereof (such assets, the “Specified Tesla B.V.
Assets”); provided that there shall be no recourse to Tesla B.V. in respect of such Indebtedness other than with respect to the Specified Tesla B.V. Assets; and
(w) Indebtedness of the Company and its Subsidiaries that does not at any time exceed $25,000,000.
10.05. [Reserved].
10.06. Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, enter into any transaction
or series of related transactions with any Affiliate of the Company or any of its Subsidiaries, other than on terms and conditions at least as favorable in all material respects to the Company or such Subsidiary as would reasonably be obtained by
the Company or such Subsidiary at that time in a comparable arm’s-length transaction with a Person other than an Affiliate, except that the following in any event shall be permitted:
(a) Dividends may be paid to the extent provided in Section 10.03;
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(b) loans may be made and other transactions may be entered into by the Company and its
Subsidiaries to the extent expressly permitted by Sections 10.02, 10.03, 10.04 and 10.10;
(c) customary fees, indemnities and
reimbursements may be paid to directors of the Company and its Subsidiaries;
(d) the Company may issue Permitted Company Stock;
(e) the Company and its Subsidiaries may enter into, and may make payments under, employment agreements, change of control severance
agreements, employee benefits plans, stock option plans, indemnification provisions and other similar compensatory arrangements (including for the reimbursement of expenses) with officers, employees and directors of the Company and its Subsidiaries
in the ordinary course of business;
(f) the Company and its Subsidiaries may pay management fees, service fees, licensing fees and
similar fees to one another in the ordinary course of business (or, in the case of pricing, as otherwise determined by the Company and its Subsidiaries in their respective reasonable business judgment); and
(g) transactions solely among the Company and its Subsidiaries in the ordinary course of business and otherwise permitted by the terms of the
Credit Documents.
10.07. Fixed Charge Coverage Ratio. During each Compliance Period, the Company shall not permit (i) the
Fixed Charge Coverage Ratio for the last Test Period ended prior to the beginning of such Compliance Period for which financial statements are available to be less than 1.00:1.00, (ii) the Fixed Charge Coverage Ratio for any Test Period for
which financial statements first become available during such Compliance Period to be less than 1.00:1.00 or (iii) the Fixed Charge Coverage Ratio for any Test Period ending during such Compliance Period to be less than 1.00:1.00. Within three
Business Days after the beginning of a Compliance Period, the Company shall provide to the Administrative Agent a compliance certificate calculating the Fixed Charge Coverage Ratio for the Test Period for which financial statements are required to
be delivered ended immediately prior to the beginning of such Compliance Period based on the most recent financial statements required to be delivered pursuant to Section 9.01(a) or (b), as applicable.
10.08. Modifications of Certain Agreements; Limitations on Voluntary Payments, etc. The Company will not, and will not permit any of
its Subsidiaries to:
(a) make, with respect to any Permitted Convertible Note or other Permitted Additional Indebtedness, (x) any
voluntary or optional payment or prepayment on or any voluntary or optional redemption, repurchase or acquisition for value of, or (y) any prepayment or redemption as a result of any change of control or similar event, asset sale, insurance or
condemnation event, debt issuance, equity issuance, capital contribution or similar required “repurchase” event of (including by way of depositing with the trustee with respect thereto or any other Person money or securities before due for
the purpose of paying when due); provided, however:
(i) the Company may make any payment or prepayment on,
or redemption or repurchase or acquisition for value of, (A) any Existing Convertible Notes in accordance with the terms of related Permitted Convertible Notes Indentures, (B) any Additional Convertible Notes upon any conversion thereof by
the holders of such Additional Convertible Notes, including any Net Share Settlement, (C) any Permitted Convertible Notes through the exercise of any call option in respect thereof that is settled in Permitted Company Stock or, in respect of
any fractional shares to be issued, in cash and (D) with respect to any payment, prepayment, redemption, repurchase or acquisition for value described in clause (a)(y) above (other than any such payments, prepayments, redemptions, repurchases
or acquisitions for value governed by Section 10.08(a)(ii)), any Permitted Convertible Note or Permitted Additional Indebtedness, as and to the extent required by the terms of the Permitted Convertible Note or Permitted Additional Indebtedness
Documents, as applicable;
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(ii) subject to the terms of the Intercreditor Agreement, the Company may, in
respect of excess cash flow and extraordinary receipts and sale or insurance proceeds of Permitted Additional Secured Indebtedness Priority Collateral, make any payment or prepayment on, or redemption or repurchase or acquisition for value of
Permitted Additional Secured Indebtedness with such amounts and proceeds, in each case, as and to the extent required by the terms of the Permitted Additional Secured Indebtedness Documents;
(iii) the applicable Credit Party may make payments or prepayments on, or redemptions or acquisitions for value of, any
Permitted Convertible Notes or Permitted Additional Indebtedness (v) to the extent made with Permitted Company Stock (whether pursuant to any conversion thereof or otherwise), (w) to the extent made with the net cash proceeds from the
incurrence or issuance of any Additional Convertible Notes or Permitted Additional Indebtedness if at the time of issuance or incurrence thereof no Default or Event of Default then exists or would result therefrom, (x) to the extent
constituting an exchange of such Permitted Convertible Notes or Permitted Additional Indebtedness (together with any accrued and unpaid interest thereon) for other Additional Convertible Notes or Permitted Additional Indebtedness if at the time of
such exchange no Default or Event of Default then exists or would result therefrom, (y) to the extent made with any combination of the consideration in clauses (v), (w) and (x), or (z) at the time thereof, the Payment Conditions are
satisfied both before and after giving effect to such payment, prepayment, redemption or acquisition for value;
(iv) the
applicable Subsidiary may make payments or prepayments on, or redemptions or acquisitions for value of, any Permitted Non-Credit Party Indebtedness (x) to the extent made solely with Permitted Company Stock (whether pursuant to any conversion
thereof or otherwise), (y) to the extent made with the net cash proceeds from the incurrence or issuance of, or in exchange for, any Permitted Non-Credit Party Indebtedness if no Default or Event of Default then exists or would result therefrom
or (z) if the Payment Conditions are satisfied both before and after giving effect to such payment, prepayment, redemption, repurchase or acquisition for value; provided that the Company may make any such payment, prepayment, redemption,
repurchase or acquisition for value within 60 days after sending any notice of such payment, prepayment, redemption, repurchase or acquisition if, on such notice date, the Payment Conditions were satisfied; and
(v) if no Default or Event of Default then exists or would result therefrom, the Company may make any payment or prepayment on,
or redemption or repurchase or acquisition for value of, any Permitted Convertible Notes or Permitted Additional Indebtedness in an aggregate amount not to exceed, together with Dividends paid or made pursuant to Section 10.03(o), $25,000,000;
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(b) amend, modify, change or waive any term or provision of any Permitted Convertible Notes
Document in a manner which is either adverse to the interests of the Lenders in any material respect or would be in a form that would not otherwise have been permitted to be entered into or incurred at the time of original incurrence in accordance
with Section 10.04(l)(y) or Section 10.04(n) (as reasonably determined, in each case, by the Company); or
(c) amend, modify,
change or waive any term or provision of any Permitted Additional Indebtedness Document to the extent that the Permitted Additional Indebtedness Document in the amended, modified or changed form would not be able to be entered into (or the related
Indebtedness incurred) at such time in accordance with Sections 10.01(s) and 10.04(n) or, in the case of any Permitted Additional Secured Indebtedness Document, also to the extent not permitted at such time in accordance with the terms of the
Intercreditor Agreement.
For the avoidance of doubt, this Section 10.08 shall not restrict any conversion of any Permitted
Convertible Note in accordance with its terms or any Net Share Settlement in connection therewith.
10.09. Limitation on Certain
Restrictions on Subsidiaries. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any
such Subsidiary to (a) pay dividends or make any other distributions on its capital stock or any other Equity Interest owned by the Company or any of its Subsidiaries, or pay any Indebtedness owed to the Company or any of its Subsidiaries,
(b) make loans or advances to the Company or any of its Subsidiaries or (c) transfer any of its properties or assets to the Company or any of its Subsidiaries, except for such encumbrances or restrictions existing under or by reason of
(i) applicable law, (ii) this Agreement and the other Credit Documents, (iii) the Permitted Convertible Notes Indentures and the other Permitted Convertible Notes Documents, (iv) the Permitted Additional Indebtedness Documents,
(v) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of the Company or any of its Subsidiaries, (vi) customary provisions restricting assignment of any licensing agreement (in which
the Company or any of its Subsidiaries is the licensee) or any other contract entered into by the Company or any of its Subsidiaries in the ordinary course of business, (vii) restrictions on the transfer of any asset pending the close of the
sale of such asset, (viii) restrictions on the transfer of any asset subject to a Lien permitted by Section 10.01(c), (e), (f), (g), (j), (l), (m), (n), (r), (t), (u), (v), (w), (x), (y), (bb) or (dd), (ix) any agreement or instrument
governing Indebtedness (A) permitted pursuant to Section 10.04(b) (other than Intercompany Debt), provided that, any restrictions contained in any agreement governing any renewal, extension, replacement or refinancing of any
Existing Indebtedness are not more restrictive in any material respect than the restrictions contained in the Existing Indebtedness to be renewed, extended, replaced or refinanced (as reasonably determined by the Company in good faith),
(B) incurred pursuant to Section 10.04(d), 10.04(p), 10.04(r) or 10.04(s), provided that any such restriction contained therein relates only to the assets financed thereby (or, in the case of Section 10.04(r), securing such
Indebtedness), (C) incurred pursuant to Section 10.04(o), which restriction is only applicable to the transfers of assets (other than cash) of the Person that has incurred the subject Indebtedness or (D) incurred pursuant to
Section 10.04(g), which encumbrance or restriction, in the case of this clause (D), is not applicable to any Person or the properties or assets of any Person, other than the Person or the properties or assets of the Person acquired pursuant to
the respective Acquisition and so long as the respective encumbrances or restrictions were not created (or made more restrictive (as reasonably determined by the Company in good faith)) in connection with or in anticipation of the respective
Acquisition, (ix) restrictions applicable to any joint venture that is a Non-Wholly-Owned Subsidiary of the Company as a result of an Investment not prohibited by this Agreement; provided that the restrictions applicable to such joint
venture are not made more burdensome (as reasonably determined by the Company in good faith), from the perspective of the Company and its Subsidiaries, than those as in effect
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immediately before giving effect to the consummation of the respective Investment (but solely to the extent any are in effect at such time), (x) encumbrances or restrictions on cash or other
deposits or net worth imposed by customers under agreements entered into in the ordinary course of business, (xi) customary net worth or similar financial maintenance provisions contained in real property leases entered into by any Subsidiary,
and (xii) arrangements with any Governmental Authority imposed on any Foreign Subsidiary in connection with governmental grants, financial aid, tax holidays or similar benefits.
10.10. Limitations on Certain Issuances of Equity Interests. The Company will not, and will not permit any of its Subsidiaries to,
issue (i) any Preferred Equity or (ii) any redeemable common stock or other redeemable common Equity Interests, in each case for clauses (i) and (ii) other than (x) common stock or other redeemable common Equity Interests
that is or are redeemable at the sole option of the Company or such Subsidiary, as the case may be, unless the purchase thereof is otherwise expressly permitted under Section 10.03, and (y) Qualified Preferred Stock of the Company.
10.11. No Additional Accounts, etc. The Company will not, and will not permit any other Credit Party to, directly or indirectly, open,
maintain or otherwise have any checking, savings, deposit, securities or other accounts at any bank or other financial institution where cash or Cash Equivalents are or may be deposited or maintained with any Person, other than (a) the Core
Deposit Accounts set forth on Part A of Schedule 10.11 to the Disclosure Letter, (b) the DB Accounts, (c) the Controlled Securities Accounts set forth on Part B of Schedule 10.11 to the Disclosure Letter and (d) the Excluded Accounts;
provided that, in any event, any such Credit Party may open a new Core Deposit Account not set forth in Schedule 10.11 to the Disclosure Letter, Controlled Securities Account not set forth in such Schedule 10.11 to the Disclosure Letter or
any Excluded Account, so long as in the case of a Core Deposit Account or Controlled Securities Account, (i) the Company has delivered an updated Schedule 10.11 to the Disclosure Letter to the Administrative Agent listing such new account and
(ii) the financial institution with which such Core Deposit Account or Controlled Securities Account, as applicable, is opened, together with the applicable Credit Party which has opened the Core Deposit Account or the Controlled Securities
Account, as applicable, and the Collateral Agent, shall have delivered (within 90 days of opening such Core Deposit Account or Controlled Securities Account) to the Administrative Agent a Cash Management Control Agreement in form and substance
reasonably acceptable to the Administrative Agent.
10.12. Use of Proceeds. The Company will not, and will cause its Subsidiaries,
and each of their respective directors officers, employees and agents to not, use the proceeds of the Loans or Letters of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or
anything else of value, to any Person in violation in any material respect of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in
any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
10.13. Fiscal Unity. No Dutch Credit Party shall create or become a member of a fiscal unity (fiscal eenheid) other than a
fiscal unity among the Dutch Credit Parties only.
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SECTION 11. Events of Default.
Upon the occurrence of any of the following specified events (each, an “Event of Default”):
11.01. Payments. Any Borrower shall (i) default in the payment when due of any principal of any Loan or any Note or any Unpaid
Drawing, (ii) default in the payment of any cash collateral, or the entering into of backstop arrangements, as and when required by Section 3.07 or (iii) default, and such default shall continue unremedied for five days, in the
payment when due of any interest on any Loan, Note or any Unpaid Drawing or any Fees or any other amounts owing hereunder or under any other Credit Document; or
11.02. Representations, etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other
Credit Document or in any certificate delivered to the Administrative Agent or any Lender pursuant hereto or thereto shall prove to be untrue in any material respect (or in any respect to the extent qualified by “materiality,”
“Material Adverse Effect” or similar language) on the date as of which made or deemed made; or
11.03. Covenants. The
Company or any of its Subsidiaries shall (i) default in the due performance or observance by it of any term, covenant or agreement contained in Section 5.03(b), 5.03(c), 5.03(d), 5.03(e), 9.01(e)(i), 9.01(h), 9.03(a)(ii) (with respect to a
Borrower), 9.04 (as it relates to the existence of a Borrower), 9.11, 9.12(e) or Section 10 (other than Section 10.01(a)) or (ii) default in the due performance or observance by it of any other term, covenant or agreement contained in
this Agreement (other than those set forth in Sections 11.01, 11.02 and 11.03(i)) and such default shall continue unremedied for a period of 30 days after the earlier of (a) the date on which such default shall first become known to any
Responsible Officer of the Company or any other Credit Party or (b) the date on which written notice thereof is given to the defaulting party by the Administrative Agent or the Required Lenders; or
11.04. Default Under Other Agreements. (a) The Company or any of its Subsidiaries shall (i) default in any payment of any
Indebtedness (other than the Obligations) beyond the period of grace, if any, provided in an instrument or agreement under which such Indebtedness was created or (ii) default beyond any period of grace in the observance or performance of any
agreement or condition relating to any Indebtedness (other than the Obligations) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity, or (b) any
Indebtedness (other than the Obligations) of the Company or any of its Subsidiaries shall be declared to be (or shall become) due and payable, or required to be prepaid, in each case other than (x) by a regularly scheduled required prepayment
or pursuant to customary mandatory prepayment provisions in connection with asset sales, casualty and condemnation events, the incurrence of indebtedness, the issuance of Equity Interests or excess cash flow, prior to the stated maturity thereof,
(y) in connection with any payment, prepayment, redemption, repurchase or acquisition for value of Indebtedness permitted under Section 10.08 and (z) any Net Share Settlement of any Permitted Convertible Notes; provided that it
shall not be a Default or an Event of Default under this Section 11.04 unless the aggregate principal amount of all Indebtedness as described in preceding clauses (a) and (b) is at least equal to the Threshold Amount; or
11.05. Bankruptcy, etc. Any Credit Party or any Material Subsidiary of the Company shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary case is commenced against any Credit Party or any Material
Subsidiary of the Company, and the petition is not controverted within 30 days, or is not dismissed within 60 days after the filing thereof, provided, however, that during the pendency of such period, each Lender shall be relieved of
its obligation to extend credit hereunder; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of any Credit Party or any Material Subsidiary of the Company, to operate
all or any substantial portion of the business any Credit Party or any Material Subsidiary of the Company, or any Credit Party or any Material Subsidiary of the Company commences
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any other proceeding in relation to any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, bankruptcy, insolvency or any analogous procedure or step is taken in any
jurisdiction whether now or hereafter in effect relating to any Credit Party or any Material Subsidiary of the Company (including under any Dutch Insolvency Law), or there is commenced against any Credit Party or any Material Subsidiary of the
Company any such proceeding which remains undismissed for a period of 60 days after the filing thereof, or any Credit Party or any Material Subsidiary of the Company is adjudicated or deemed under applicable law insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding (including the entry of an order of relief against it or for the appointment of a receiver, controller, receiver-manager, trustee, monitor, custodian or similar official for it or for
any substantial part of its property) is entered; or any Credit Party or any Material Subsidiary of the Company makes a general assignment for the benefit of creditors; or any Business action is taken by any Credit Party or any Material Subsidiary
of the Company for the purpose of effecting any of the foregoing; or with respect to a Dutch Credit Party, if it files a notice under section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990); or
11.06. ERISA.
(a) One
or more ERISA Events shall have occurred;
(b) there is or arises an Unfunded Pension Liability (taking into account only Plans with
positive Unfunded Pension Liability);
(c) any material contribution required to made with respect to a Foreign Pension Plan has not been
timely made; or
(d) or there is or arises any potential withdrawal liability under Section 4201 of ERISA, if the Company, any
Subsidiary of the Company or any of the ERISA Affiliates were to withdraw completely from any and all Multiemployer Plans;
and the liability of any or
all of the Company, any Subsidiary of the Company and the ERISA Affiliates contemplated by the foregoing clauses (a), (b), (c), and (d), either individually or in the aggregate, has had, or could be reasonably expected to have, a Material Adverse
Effect; or
11.07. [Reserved].
11.08. Security Documents. Any of this Agreement or the Security Documents shall cease to be in full force and effect (other than as
permitted by the Credit Documents), or any Credit Party or any Person acting for or on behalf of such Credit Party shall deny or disaffirm such Credit Party’s obligations under this Agreement or any Security Document to which it is a party, or
the Security Documents shall cease to give the Collateral Agent for the benefit of the Secured Creditors (other than pursuant to, or as permitted by, the terms hereof or thereof (including as a result of a transaction permitted by this Agreement)) a
perfected security interest in, and Lien on, the Collateral covered thereby, in favor of the Collateral Agent, superior to and prior to the rights of all third Persons (except as permitted by Section 10.01), and subject to no other Liens
(except as permitted by Section 10.01), or any Credit Party shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any such Security Document and such default
shall continue beyond the period of grace, if any, specifically applicable thereto pursuant to the terms of such Security Document or, if no such period of grace is provided in such Security Document, such default shall continue unremedied for a
period of 30 days after the earlier of (a) the date on which such default shall first become known to any Responsible Officer of the Company or (b) the date on which written notice thereof is given to the defaulting party by the
Administrative Agent or the Required Lenders; or
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11.09. Guaranties. Any Guaranty or any provision thereof shall cease to be in full force
or effect as to any Guarantor (except as a result of a release of any Subsidiary Guarantor in accordance with the terms of the Credit Documents), or any Guarantor or any Person acting for or on behalf of such Guarantor shall deny or disaffirm such
Guarantor’s obligations under the Guaranty to which it is a party or any Guarantor (a) shall default in the payment when due of any Guaranteed Obligations (as defined in (or any similar term contained in) each applicable Guaranty) or
(y) shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Guaranty to which it is a party and such default shall continue beyond the period of grace, if
any, specifically applicable thereto pursuant to the terms of such Guaranty, or, if no such period of grace is provided in such Guaranty or such default is of a covenant in this Agreement pursuant to which no grace period is provided in
Section 11.03 above, such default shall continue unremedied for a period of 30 days after the earlier of (a) the date on which such default shall first become known to any Responsible Officer of the Company or any other Credit Party or
(b) the date on which written notice thereof is given to the defaulting party by the Administrative Agent or the Required Lenders; or
11.10. Judgments. One or more judgments or decrees shall be entered against the Company or any Subsidiary of the Company involving in
the aggregate for the Company and its Subsidiaries a liability (to the extent not paid or not covered by a reputable and solvent insurance company) and such judgments and decrees shall not be satisfied, vacated, discharged or stayed or bonded
pending appeal for any period of 30 consecutive days, and the aggregate amount of all such judgments equals or exceeds the Threshold Amount; or
11.11. Change of Control. A Change of Control shall occur; or
11.12. Intercreditor Agreement. After the execution and delivery thereof, the Intercreditor Agreement or any provision thereof shall
cease to be in full force or effect (except in accordance with its terms), any Credit Party shall assert that the Intercreditor Agreement shall have ceased for any reason to be in full force and effect (except in accordance with its terms) or shall
knowingly contest, or knowingly support any other Person in any action that seeks to contest, the validity or effectiveness of the Intercreditor Agreement; or
11.13. Convertible Notes Maturity Default. A Convertible Notes Maturity Default shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, upon the written request
of the Required Lenders, shall by written notice to the Borrowers, take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or the holder of any Note to enforce its claims against any Credit
Party (provided that, if an Event of Default specified in Section 11.05 shall occur with respect to any Borrower, the result which would occur upon the giving of written notice by the Administrative Agent as specified in clauses
(a) and (b) below, shall occur automatically without the giving of any such notice): (a) declare the Total Revolving Loan Commitment terminated, whereupon the Revolving Loan Commitment of each Lender shall forthwith terminate
immediately and any Commitment Commission shall forthwith become due and payable without any other notice of any kind; (b) declare the principal of and any accrued and unpaid interest in respect of all Loans and the Notes and all Obligations
owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; (c) terminate any Letter of
Credit which may be terminated in accordance with its terms; (d) (x) direct the U.S. Borrowers to pay (and the U.S. Borrowers jointly and severally agree that upon receipt of such notice, or upon the occurrence of an Event of Default
specified in Section 11.05 with respect to any U.S. Borrower, they will pay) to the Collateral Agent at the Payment Office such additional amount of cash or Cash Equivalents, to
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be held as security by the Collateral Agent, as is equal to 102% of the aggregate Stated Amount of all Letters of Credit issued for the account of the U.S. Borrowers and then outstanding and
(y) direct the Dutch Borrowers to pay (and the Dutch Borrowers agree that upon receipt of such notice, or upon the occurrence of an Event of Default specified in Section 11.05 with respect to any Dutch Borrower, they will pay) to the
Collateral Agent at the Payment Office such additional amount of cash or Cash Equivalents, to be held as security by the Collateral Agent, as is equal to 102% of the aggregate Stated Amount of all Letters of Credit issued for the account of such
Dutch Borrowers and then outstanding; (e) enforce, as Collateral Agent, all of the Liens and security interests created pursuant to the Security Documents; (f) enforce each Guaranty; and (g) apply any cash collateral held by the
Administrative Agent pursuant to Section 5.02 to the repayment of the Obligations.
SECTION 12. The Administrative Agent and the
Collateral Agent.
12.01. Appointment. (a) The Lenders (including in their capacity as a Swingline Lender and Issuing
Lender) hereby irrevocably designate and appoint DBNY as Administrative Agent (for purposes of this Section 12 and Section 13.01, the term “Administrative Agent” also shall include DBNY in its capacity as Collateral Agent
pursuant to the Security Documents and, if in effect, the Intercreditor Agreement) to act as specified herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note
shall be deemed irrevocably to authorize the Administrative Agent to take such action on its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder or under the other Credit Documents by or through its officers, directors, agents, employees or affiliates.
(b) Each Issuing Lender shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and documents associated
therewith, and such Issuing Lender shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Section 12 (other than Section 12.04) with respect to any acts taken or omissions suffered by such
Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent”
as used in this Section 12 included such Issuing Lender with respect to such acts or omissions and (ii) as additionally provided herein with respect to such Issuing Lender.
(c) Each Issuing Lender may, at any time by giving 20 Business Days’ prior written notice to the Company and the Administrative Agent,
resign from the performance of all its respective functions and duties hereunder and/or under the other Credit Documents as an Issuing Lender and the resigning Issuing Lender (x) shall not be required to issue any further Letters of Credit
hereunder, (y) shall maintain all of its rights (including its rights to indemnification) and obligations as Issuing Lender with respect to any Letters of Credit issued by it prior to the date of such resignation and (z) shall remain
indemnified to the extent provided in this Agreement and the other Credit Documents and the provisions of this Section 12 (and the analogous provisions of the other Credit Documents) shall continue in effect for the benefit of such resigning
Issuing Bank for all of its actions and inactions while serving as an Issuing Bank hereunder.
12.02. Nature of Duties.
(a) The Administrative Agent in its capacity as such shall not have any duties or responsibilities except those expressly set forth in this Agreement and in the other Credit Documents. Neither the Administrative Agent in its capacity as such
nor any of its officers, directors, agents, employees or affiliates shall be liable for any action taken or omitted by it or them
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hereunder or under any other Credit Document or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The duties of the Administrative Agent shall be mechanical and administrative in nature; the Administrative Agent shall have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations
in respect of this Agreement or any other Credit Document except as expressly set forth herein or therein.
(b) Notwithstanding any other
provision of this Agreement or any provision of any other Credit Document, the Arrangers, the Syndication Agents and the Documentation Agent are named as such for recognition purposes only, and in its capacity as such shall have no powers, duties,
responsibilities or liabilities with respect to this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby; it being understood and agreed that the Arrangers, the Syndication Agents and the Documentation Agent
shall be entitled to all indemnification and reimbursement rights in favor of the Administrative Agent as, and to the extent, provided for under Sections 12.06 and 13.01. Without limitation of the foregoing, none of the Arrangers, the Syndication
Agents and the Documentation Agent shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person.
12.03. Lack of Reliance on the Administrative Agent. Independently and without reliance upon the Administrative Agent, each Lender and
the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (a) its own independent investigation of the financial condition and affairs of the Company and its Subsidiaries in connection with the making and
the continuance of the Loans and the taking or not taking of any action in connection herewith and (b) its own appraisal of the creditworthiness of the Company and its Subsidiaries and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter. The Administrative Agent shall not be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Credit Document or
the financial condition of the Company or any of its Subsidiaries or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of the Company or any of its Subsidiaries or the existence or possible existence of any Default or Event of Default.
12.04. Certain Rights of the Agents. If the Administrative Agent shall request instructions from the Required Lenders with respect to
any act or action (including failure to act) in connection with this Agreement or any other Credit Document, the Administrative Agent shall be entitled to refrain from such act or taking such action unless and until the Administrative Agent shall
have received instructions from the Required Lenders; and the Administrative Agent shall not incur liability to any Lender by reason of so refraining. Without limiting the foregoing, neither any Lender nor the holder of any Note shall have any right
of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders.
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12.05. Reliance. The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the
Administrative Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Credit Document and its duties hereunder and thereunder, upon advice of counsel selected by the Administrative
Agent.
12.06. Indemnification. To the extent the Administrative Agent (or any affiliate thereof) or any Issuing Lender (or any
affiliate thereof) is not reimbursed and indemnified by the Borrowers, the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) or Issuing Lender (or any affiliate thereof), as applicable, in proportion to their
respective “percentage” as used in determining the Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) or the applicable Issuing Lender (or an affiliate thereof), as applicable, in
performing its duties hereunder, under any other Credit Document or in respect of any Letter of Credit or in any way relating to or arising out of this Agreement, any other Credit Document or any Letter of Credit; provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliates’) or the
applicable Issuing Lender’s (or such affiliates’), as applicable, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
12.07. The Administrative Agent in its Individual Capacity. With respect to its obligation to make Loans, or issue or participate in
Letters of Credit, under this Agreement, the Administrative Agent shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein;
and the term “Lender,” “Required Lenders,” “Supermajority Lenders” or any similar terms shall, unless the context clearly indicates otherwise, include the Administrative Agent in its individual capacity. The
Administrative Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including
financial advisory services) to any Credit Party or any Affiliate of any Credit Party (or any Person engaged in a similar business with any Credit Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of any Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.
12.08. Holders. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent. Any request, authority or consent of any Person who, at the time of making such request or giving
such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09. Resignation by the Administrative Agent. (a) The Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Credit Documents at any time by giving 20 Business Days’ prior written notice to the Lenders and, unless a Default or an Event of Default under Section 11.05 then exists, the Company.
Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Lender and the Swingline Lender, in which case the resigning Administrative Agent (x) shall not be required to issue any further
Letters of Credit or make any Swingline Loans hereunder and (y) shall maintain all of its rights and obligations as Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters of
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Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Such resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent hereunder or under the other Credit Documents who shall be a commercial bank or trust company reasonably acceptable to the Company, which acceptance shall not be unreasonably
withheld or delayed (provided that the Company’s approval shall not be required if an Event of Default then exists).
(c) If
a successor Administrative Agent shall not have been so appointed within such 20 Business Day period, the Administrative Agent, with the consent of the Company (which consent shall not be unreasonably withheld or delayed, provided that the
Company’s consent shall not be required if an Event of Default then exists), shall then appoint a successor Administrative Agent who shall serve as Administrative Agent hereunder or thereunder until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided in clause (b) above.
(d) If no successor Administrative Agent has been
appointed pursuant to clause (b) or (c) above by the 25th Business Day after the date such notice of resignation was given by the Administrative Agent, the Administrative Agent’s resignation shall become effective and the Required
Lenders shall thereafter perform all the duties of the Administrative Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided in clause
(b) above.
(e) Any fees payable under this Agreement or the other Credit Documents by the Credit Parties to any successor
Administrative Agent shall be the same as those payable to the predecessor Administrative Agent unless otherwise agreed to between the Company and the successor Administrative Agent.
(f) Upon a resignation of the Administrative Agent pursuant to this Section 12.09, the Administrative Agent shall remain indemnified to
the extent provided in this Agreement and the other Credit Documents and the provisions of this Section 12 (and the analogous provisions of the other Credit Documents) shall continue in effect for the benefit of the Administrative Agent for all
of its actions and inactions while serving as an Agent hereunder.
12.10. Collateral Matters. (a) Each Lender authorizes and
directs the Administrative Agent to enter into for the benefit of the Lenders and the other Secured Creditors (i) the Security Documents and, if applicable, the Intercreditor Agreement and (ii) any amendments provided for under
Section 2.14. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of
this Agreement, the Security Documents or the Intercreditor Agreement, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Lenders. The Administrative Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any
action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents.
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(b) The Lenders hereby authorize the Administrative Agent to promptly upon the request of the
Company, and the Administrative Agent and the Lenders hereby agree with the Company to, the automatic release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon termination of the Total Revolving Loan
Commitment (and all Letters of Credit other than Letters of Credit that have been cash collateralized or backstopped by another letter of credit, in either case on terms and pursuant to arrangements reasonably satisfactory to the Administrative
Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such cash collateral or backstop letter of credit to be in a stated amount equal to at least 102% of the aggregate Stated Amount of all Letters of Credit
outstanding at such time))) and payment and satisfaction of all of the Obligations (other than contingent payment obligations for which no claim has been made) at any time arising under or in respect of this Agreement or the Credit Documents or the
transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than a Credit Party) upon the sale or other disposition thereof not prohibited by this Agreement, (iii) if
approved, authorized or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent required by Section 13.12) or (iv) as otherwise may be expressly provided in the relevant Security Documents, the last
sentence of Section 10.01 or in the Intercreditor Agreement (if in effect). Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items
of Collateral pursuant to this Section 12.10.
(c) The Administrative Agent shall have no obligation whatsoever to the Lenders or to
any other Person to assure that the Collateral exists or is owned by any Credit Party or is cared for, protected or insured or that the Liens granted to the Administrative Agent herein or pursuant hereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and
powers granted or available to the Administrative Agent in this Section 12.10 or in any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the
Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given the Administrative Agent’s own interest in the Collateral as one of the Lenders and that the Administrative Agent shall have no duty or liability
whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(d) The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Credit
Document in respect of the Collateral by or through, or delegate any and all such rights and powers to, any one or more sub-agents, trustees or third parties appointed by the Administrative Agent. The Administrative Agent (and any such sub-agent,
trustee or third party) may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory and indemnification provisions of this Section 12 and Section 13.01 shall apply to
any such sub-agent, trustee or third party and to their respective Affiliates to the same extent that such provisions apply to the Administrative Agent.
12.11. Delivery of Information. The Administrative Agent shall not be required to deliver to any Lender originals or copies of any
documents, instruments, notices, communications or other information received by the Administrative Agent from any Credit Party, any Subsidiary thereof, the Required Lenders, any Lender or any other Person under or in connection with this Agreement
or any other Credit Document except (a) as specifically provided in this Agreement or any other Credit Document and (b) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument,
notice or other written communication received by and in the possession of the Administrative Agent at the time of receipt of such request and then only in accordance with such specific request.
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12.12. Dutch Parallel Debt.
(a) Each Dutch Credit Party irrevocably and unconditionally undertakes to pay to the Collateral Agent amounts equal to, and in the currency or
currencies of, its Dutch Corresponding Debt (such amounts, its “Dutch Parallel Debt”) on the terms and conditions specified in this Section 12.12.
(b) The Dutch Parallel Debt of each Dutch Credit Party (i) shall become due and payable at the same time as its Dutch Corresponding
Debt; and (ii) is independent and separate from, and without prejudice to, its Dutch Corresponding Debt.
(c) For purposes of this
Section 12.12, the Collateral Agent (i) is the independent and separate creditor of each Dutch Parallel Debt; (ii) acts in its own name and not as agent, representative or trustee of the Secured Creditors and its claims in respect of
each Dutch Parallel Debt shall not be held on trust; and (iii) shall have the independent and separate right to demand payment of each Dutch Parallel Debt in its own name (including, through any suit, execution, enforcement of security,
recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
(d) The Dutch Parallel Debt of each Dutch
Credit Party shall be (i) decreased to the extent that its Dutch Corresponding Debt has been irrevocably and unconditionally paid or discharged, and (ii) increased to the extent to that its Dutch Corresponding Debt has increased, and the
Dutch Corresponding Debt of each Dutch Credit Party shall be (x) decreased to the extent that its Dutch Parallel Debt has been irrevocably and unconditionally paid or discharged, and (y) increased to the extent that its Dutch Parallel Debt
has increased, in each case provided that the Dutch Parallel Debt of a Dutch Credit Party shall never exceed its Dutch Corresponding Debt.
(e) Each Dutch Credit Party may not pay any of its Dutch Parallel Debt other than at the instruction of, and in the manner determined by, the
Collateral Agent. Without prejudice to the preceding sentence, each Dutch Credit Party shall be obliged to pay the Dutch Parallel Debt (or if such Dutch Credit Party’s Dutch Corresponding Debt is due at different times, an amount of the
relevant Dutch Parallel Debt corresponding to its relevant Dutch Corresponding Debt) only when its relevant Dutch Corresponding Debt has become due.
(f) All parties to this Agreement have acknowledged and agreed with and/or shall acknowledge and agree with the provisions of this
Section 12.12.
(g) For the avoidance of doubt, each Dutch Credit Party and the Collateral Agent acknowledge and agree that the
rules applicable in respect of common property (gemeenschap) do not apply, whether or not by analogy, to the relation between any relevant parties to the relevant Dutch Security Agreement as a result of the provisions in this
Section 12.12.
(h) All amounts received or recovered by the Collateral Agent in connection with this Section 12.12, to the
extent permitted by applicable law, shall be applied in accordance with Section 13.06.
(i) This Section 12.12 applies for the
purpose of determining the Secured Obligations in each Dutch Security Agreement.
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SECTION 13. Miscellaneous.
13.01. Payment of Expenses, etc. Subject to Section 14.07, the Borrowers hereby jointly and severally agree to: (a) whether or
not the transactions herein contemplated are consummated, pay all reasonable and documented out-of-pocket costs and expenses (including Expenses) (i) of the Administrative Agent (including the reasonable and documented fees and disbursements of
Simpson Thacher & Bartlett LLP as counsel to the Administrative Agent, one local counsel in each relevant jurisdiction and consultants and the reasonable and documented fees and expenses in connection with the appraisals and collateral
examinations required pursuant to Section 9.01(j)) in connection with the preparation, execution, delivery and administration of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, (ii) of the Administrative Agent and its Affiliates in connection with their syndication efforts with respect to this Agreement, (iii) of the Administrative Agent and each
Issuing Lender in connection with the Letter of Credit Back-Stop Arrangements entered into by such Persons and (iv) after the occurrence and during the continuance of an Event of Default, of each of the Administrative Agent, the Issuing
Lenders, the Swingline Lender and the other Lenders in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings (including the reasonable and documented fees and disbursements of
(x) counsel and consultants of the Administrative Agent, (y) counsel for the respective Issuing Lenders entering into Letter of Credit Backstop Arrangements and (z) one additional firm of counsel for the Issuing Lenders, the Swingline
Lender and the other Lenders as a group in each of the United States and the Netherlands); and (b) indemnify the Arrangers, the Administrative Agent, the Collateral Agent, the Syndication Agents, the Documentation Agent, each Issuing Lender,
the Swingline Lender, each other Lender and each of their respective affiliates, and each of their and their affiliates’ respective officers, directors, employees, representatives, agents, trustees and investment advisors (each, an
“Indemnified Person”) from and hold each of them harmless against any and all liabilities, obligations, losses, damages, penalties, claims, actions (including removal or remedial actions), judgments, suits, costs, expenses and
disbursements (including reasonable and documented out-of-pocket attorneys’ and consultants’ fees and disbursements (but limited, in the case of attorneys’ fees and disbursements, to one counsel to the Indemnified Persons, taken as a
whole, one local counsel for the Indemnified Persons, taken as a whole, in each relevant jurisdiction, and, solely in the case of an actual or perceived conflict of interests, one additional counsel in each relevant jurisdiction to each group of
affected Indemnified Persons similarly situated, taken as a whole)) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (i) any investigation, litigation or other
proceeding (whether or not the Arrangers, the Administrative Agent, the Collateral Agent, the Syndication Agents, the Documentation Agent, any Issuing Lender, the Swingline Lender or any other Lender is a party thereto and whether or not such
investigation, litigation or other proceeding is brought by or on behalf of any Credit Party) related to the entering into and/or performance of this Agreement or any other Credit Document or the issuance, amendment, renewal, extension or use of any
Letter of Credit or the proceeds of any Loans or Letters of Credit hereunder (including any refusal by any Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit) or the consummation of the Transaction or any other transactions contemplated herein or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in
the other Credit Documents, (ii) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater or on the surface or subsurface of any Real Property at any
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time owned, leased or operated by the Company or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of Hazardous Materials by the Company or any of its
Subsidiaries at any location, whether or not owned, leased or operated by the Company or any of its Subsidiaries, the non-compliance by the Company or any of its Subsidiaries with any Environmental Law (including applicable permits thereunder)
applicable to any Real Property, or any Environmental Claim asserted against the Company, any of its Subsidiaries or any Real Property at any time owned, leased or operated by the Company or any of its Subsidiaries, (iii) (x) the handling
of the Credit Account and Collateral of the Borrowers as provided in this Agreement or (y) the Agents’, the Swingline Lender’s, the Issuing Lenders’ and the other Lenders’ relying on any instructions of the Company, or
(z) any other action taken by the Agents, the Swingline Lender, the Issuing Lenders or the other Lenders hereunder or under the other Credit Documents or in respect of any Letter of Credit, or (iv) the performance by the Administrative
Agent of its duties under Section 13.15 including, in each case and subject to the limitations set forth in this Section, the reasonable and documented out-of-pocket fees and disbursements of counsel and other consultants incurred in connection
with any such investigation, litigation or other proceeding (but, in each case, excluding from clause (b) above, any losses, liabilities, claims, damages or expenses (A) to the extent incurred by reason of the gross negligence or willful
misconduct of the Indemnified Person to be indemnified (as determined by a court of competent jurisdiction in a final and non-appealable decision), (B) constituting taxes (other than any taxes that represent losses, liabilities, claims, damages
or expenses arising from any non-tax claim) or (C) arising out of disputes solely between and among Indemnified Persons to the extent such disputes do not involve any act or omission of the Company or any of its Subsidiaries or any of their
respective Affiliates (other than claims against an Indemnified Person acting in its capacity as Agent, Arranger, Swingline Lender, Issuing Lender or similar role)). To the extent that the undertaking to indemnify, pay or hold harmless the
Administrative Agent, any Issuing Lender, the Swingline Lender or any other Lender set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrowers (jointly and severally) shall make the
maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law.
To
the full extent permitted by applicable law, no Borrower or Indemnified Person shall assert, and each hereby waives, any claim against any Borrower or any Indemnified Person, on any theory of liability, for special, indirect, consequential or
incidental damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or thereby, the transactions contemplated
hereby or thereby, any Loan, Letter of Credit or the use of the proceeds thereof; provided that nothing in this sentence shall limit any Borrower’s indemnification obligations to the extent such special, indirect, consequential or
incidental damages are included in any third-party claim against an Indemnified Person in connection with which such Indemnified Person is otherwise entitled to indemnification under this Agreement or any other Credit Document. No Indemnified Person
shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement
or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent the liability of such Indemnified Person results from such Indemnified Person’s gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision). In addition, the U.S. Borrowers jointly and severally agree to reimburse the Administrative Agent for all reasonable and documented out-of-pocket third-party administrative,
audit and monitory expenses incurred in connection with the Borrowing Base and determinations thereunder.
13.02. Right of Setoff.
(a) In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent, each
Issuing Lender and each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Credit Party or to any other Person, any such notice being hereby expressly waived to the
extent permitted by applicable law, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by the Administrative Agent, such Issuing Lender or such Lender (including by
affiliates, branches and agencies of the Administrative Agent, such Issuing Lender or such Lender wherever located) to or for the credit or the account of any U.S. Credit Party or any Dutch Credit Party against and on account of the Obligations
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and liabilities of the U.S. Credit Parties or the Dutch Credit Parties, respectively, to the Administrative Agent, such Issuing Lender or such Lender under this Agreement or under any of the
other Credit Documents, including all interests in Obligations purchased by such Lender pursuant to Section 13.04(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not the Administrative Agent, such Issuing Lender or such Lender shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured;
provided that no amounts received from, or set off with respect to, any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor. Each of the Administrative Agent, any Issuing Lender or any Lender agrees to promptly
notify the Company after any such set-off and application made by the Administrative Agent, such Issuing Lender or such Lender, as applicable, although the failure to provide such notification shall not affect any right of set-off or give rise to
any liability on the part of the Administrative Agent, any Issuing Lender or any Lender.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION
(a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING
TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE
OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS
GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS
OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREUNDER.
13.03. Notices. (a) Except as otherwise expressly provided herein, all notices and other communications provided for hereunder
shall be in writing (including telecopier communication) and mailed, emailed, telecopied, or delivered: if to any Credit Party, at the address specified opposite its signature below or in the other relevant Credit Documents; if to any Lender, at its
address specified on Schedule 13.03; and if to the Administrative Agent or the Collateral Agent, at the Notice Office; or, as to any Credit Party or the Administrative Agent, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to the Company and the Administrative Agent. All such notices and communications shall, when mailed, emailed,
telecopied, or sent by overnight courier, be effective when received.
(b) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. Each of the Administrative Agent, the Company and each of the other Credit Parties may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
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13.04. Benefit of Agreement; Assignments; Participations. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, however, neither the Company nor any other Borrower may assign or transfer any of their rights,
obligations or interest hereunder without the prior written consent of the Lenders except as permitted by Section 10.02 and except for any assignment from any Dutch Borrower to the Company expressly contemplated by Section 2.10(e) and,
provided further, that, although any Lender may grant participations to Eligible Transferees in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any
portion of its Revolving Loan Commitment hereunder except as provided in Sections 2.13 and 13.04(b)) and the participant shall not constitute a “Lender” hereunder and, provided further, that no Lender shall transfer or grant
any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of
any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Final Maturity Date or is otherwise cash collateralized in accordance with the terms hereof) in which such participant is participating, or reduce the rate
or extend the time of payment of interest or Fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof (it being understood that any amendment or
modification to the financial definitions in this Agreement, to Section 13.07(a) or as contemplated in clause (6) of the second proviso of Section 13.12(a) shall not constitute a reduction in the rate of interest or Fees payable
hereunder), or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Revolving Loan
Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Loan Commitment (or the available portion thereof) or Loan shall be permitted without the consent of any participant if the
participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the
Collateral under any or all of the Security Documents (except as expressly provided in the Credit Documents) or all or substantially all of the value of the Guaranty (except as expressly provided in the Credit Documents) supporting the Loans or
Letters of Credit hereunder in which such participant is participating. The Borrowers agree that each participant shall be entitled to the benefits of Sections 2.10, 3.06, 2.11 and 5.04 (subject to the requirements and limitations therein, including
the requirements under Section 5.04(e) (it being understood that the documentation required under Section 5.04(e) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section; provided that such participant (A) agrees to be subject to the provisions of Sections 2.12(b) and 2.13 as if it were an assignee under paragraph (b) of this Section; and
(B) shall not be entitled to receive any greater payment under Sections 2.10, 3.06 or 5.04, with respect to any participation, than its participating Lender would have been entitled to receive, unless the sale of the participation to such
Participant is made with the Borrowers’ prior written consent (not to be unreasonably withheld or delayed). Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with
the Borrowers to effectuate the provisions of Section 2.13 with respect to any Participant.
(b) Notwithstanding the foregoing, any
Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Revolving Loan Commitment and related outstanding Obligations (or, if the Revolving Loan Commitment has terminated, outstanding Obligations)
hereunder to (i) (A) its parent company and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company or (B) to one or more other Lenders or any affiliate of any such other Lender which is at
least 50% owned by such other Lender or its parent company (provided that any fund that invests in loans and is managed or advised by the same investment advisor of another fund which is a Lender (or by an Affiliate of such investment
advisor) shall be treated as an affiliate of such other Lender for the purposes of this sub-clause (x)(i)(B)),
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provided, that no such assignment may be made to any such Person that is, or would at such time constitute, a Defaulting Lender or (ii) in the case of any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed or advised by the same investment advisor of any Lender or by an Affiliate of such investment advisor or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 (or such lesser amount as the Administrative Agent and the Company may otherwise agree) in the aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan Commitments and related outstanding Obligations (or, if the
Revolving Loan Commitments have terminated, outstanding Obligations) hereunder to one or more Eligible Transferees, each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement,
provided that (i) at such time, Schedule 1.01(a) shall be deemed modified to reflect the Revolving Loan Commitments and/or outstanding Revolving Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) upon
the surrender of any Notes by the assigning Lender (or, upon such assigning Lender’s indemnifying the relevant Borrower or Borrowers for any lost Note pursuant to a customary indemnification agreement) new Notes will be issued, at the
Borrowers’ joint and several expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate
modifications) to the extent needed to reflect the revised Revolving Loan Commitments and/or outstanding Revolving Loans, as the case may be, (iii) so long as no Event of Default then exists, the consent of the Company shall be required in
connection with any such assignment pursuant to clause (y) above (such consent, in any case, not to be unreasonably withheld, delayed or conditioned), provided that the Company shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof, (iv) the consent of the Administrative Agent, each Issuing Lender and the Swingline Lender shall be
required in connection with any such assignment of Revolving Loan Commitments (and related Obligations) (such consent, in any case, not to be unreasonably withheld, delayed or conditioned), (v) the Administrative Agent shall receive at the time
of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500 (provided that only one such fee shall be payable in the case of one or more concurrent assignments by or to investment
funds managed or advised by the same investment advisor or an affiliated investment advisor; provided further that the Administrative Agent may waive the payment of such fee in its sole discretion), and (vi) no such transfer or
assignment will be effective until recorded by the Administrative Agent on the Register pursuant to Section 13.15; provided in all cases that the transferee Lender does not form part of the public (as such term is understood under the
Dutch Financial Markets Supervision Act). To the extent of any assignment pursuant to this Section 13.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitment and
outstanding Revolving Loans. At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Lender hereunder and which is not a United States Person for U.S. federal income tax purposes, the respective
assignee Lender shall, to the extent legally entitled to do so, provide to the Company and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a U.S. Tax Compliance Certificate) described in
Section 5.04(e) to the extent such forms would provide a complete exemption from or reduction in U.S. federal withholding tax. In addition, each assignee Lender that is a United States Person and not already a Lender, if requested by the
relevant Borrower or the Administrative Agent, shall deliver such documentation (including Internal Revenue Service Form W-9) prescribed by applicable law as will enable the relevant Borrower or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information reporting requirements. To the extent that an assignment of all or any portion of a Lender’s Revolving Loan Commitment and related outstanding Obligations pursuant to Section 2.13
or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 2.10, 3.06 or 5.04 from those being charged by the respective assigning Lender prior to such assignment, then no Borrower shall be
obligated to pay such increased costs (although the Borrowers, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after
the date of the respective assignment).
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(c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder including to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank and, with prior notification to the Administrative Agent, any Lender which is a fund may pledge all or any portion of its
Loans and Notes to its trustee or to a collateral agent providing credit or credit support to such Lender in support of its obligations to such trustee, such collateral agent or a holder of such obligations, as the case may be. No pledge pursuant to
this clause (c) shall release the transferor Lender from any of its obligations hereunder.
(d) Any Lender which assigns all of its
Revolving Loan Commitment and/or Loans hereunder in accordance with Section 13.04(b) shall cease to constitute a “Lender” hereunder, except with respect to indemnification provisions under this Agreement (including Sections 2.10,
2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such assigning Lender solely with respect to events or circumstances that occurred prior to such assignment.
(e) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a
register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any
commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in
registered form under Section 5f.103-(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(f) A transfer or assignment under Section 13.04(b) may, with respect to a
Dutch Borrower, only be made to a person who is a Professional Lender.
13.05. No Waiver; Remedies Cumulative. No failure or delay
on the part of the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Company, any other Borrower
or any other Credit Party and the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative
and not exclusive of any rights, powers or remedies which the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to
any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender to any other or further action in any circumstances
without notice or demand.
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13.06. Payments Pro Rata. (a) Except as otherwise provided in this Agreement, the
Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of any Borrower in respect of any Obligations hereunder, the Administrative Agent shall distribute such payment to the Lenders entitled thereto (other than
any Lender that has consented in writing to waive its pro rata share of any such payment) pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive (other than in connection with an assignment made pursuant to Section 13.04)
any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which with respect to the related sum or sums received by other Lenders is in a
greater proportion than the total of such Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess payment
shall purchase for cash without recourse or warranty from the other Lenders an interest in the Obligations of the respective Credit Party to such Lenders in such amount as shall result in a proportional participation by all the Lenders in such
amount; provided that if all or any portion of such excess amount is thereafter recovered from such Lenders, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, (i) the provisions of the preceding Sections 13.06(a) and (b) shall
be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders and (ii) the provisions of the preceding Section 13.06(b) shall be
subject to the express provisions of this Agreement which require payments to be allocated to a particular Lender or Lenders.
13.07.
Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Company to the Lenders); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) used in determining
the Fixed Charge Coverage Ratio and the Total Leverage Ratio in determining compliance with Section 10 shall (x) utilize GAAP and policies in conformity with those used to prepare the audited financial statements of the Company referred to
in Section 8.05(a) for its fiscal year ended, and otherwise in effect as of, December 31, 2014 and (y) be made in a manner such that any obligations relating to a lease that was accounted for by such Person as an operating lease as of
the Effective Date and any similar lease entered into after the Effective Date by the Company or any Subsidiary shall be accounted for as obligations relating to an operating lease and not as Capital Lease Obligations, (ii) notwithstanding
anything to the contrary contained herein, all such financial statements shall be prepared, and all financial covenants contained herein or in any other Credit Document shall be calculated, in each case, without giving effect to (x) any
election under FASB ASC 825 (or any similar accounting principle permitting a Person to value its financial liabilities at the fair value thereof), or (y) any treatment of Indebtedness in respect of convertible debt instruments under Accounting
Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such
Indebtedness shall at all times be valued at the full stated principal amount thereof, (iii) to the extent expressly provided herein, certain calculations shall be made on a Pro Forma Basis and (iv) for purposes of determining compliance
with any incurrence or expenditure tests set forth herein, amounts so incurred or expended (to the extent
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incurred or expended in a currency other than U.S. Dollars) shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if
same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate
U.S. Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of U.S. Dollars, all outstanding amounts originally
incurred or spent in currencies other than U.S. Dollars shall be converted into U.S. Dollars on the basis of the exchange rates (as shown for the prior day as published on Bloomberg or, if same does not provide such exchange rates, on such other
basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of any new incurrence or expenditures made under any provision of any such Section that regulates the U.S. Dollar amount outstanding at any time).
(b) All computations of interest (except as otherwise expressly provided herein), Commitment Commission and other Fees hereunder shall be
made on the basis of a year of 360 days (except for interest calculated by reference to the Prime Lending Rate, which shall be based on a year of 365 or 366 days, as applicable) for the actual number of days (including the first day but excluding
the last day; except that in the case of Letter of Credit Fees and Facing Fees, the last day shall be included) occurring in the period for which such interest, Commitment Commission or Fees are payable.
13.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY OTHER CREDIT DOCUMENT, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (OR, IN
RESPECT OF SECTION 12.12, NETHERLANDS LAW) (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). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT SHALL (EXCEPT AS OTHERWISE PERMITTED BELOW) BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, BOROUGH
OF MANHATTAN (OR, IN RESPECT OF SECTION 12.12, THE COURTS OF AMSTERDAM, THE NETHERLANDS), AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF THE COMPANY AND EACH OTHER BORROWER HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 13.08 AND IN ADDITION TO THE SERVICE OF PROCESS PROVIDED FOR HEREIN, EACH
DUTCH BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS THE COMPANY (AND THE COMPANY HEREBY IRREVOCABLY ACCEPTS SUCH APPOINTMENT), AS ITS AUTHORIZED DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON THE COMPANY SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH DUTCH BORROWER
AGREES TO DESIGNATE A NEW AUTHORIZED DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION REASONABLY SATISFACTORY
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TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. EACH OF THE COMPANY AND EACH OTHER BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER THE
COMPANY OR ANY SUCH OTHER BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION
OVER THE COMPANY OR ANY SUCH OTHER BORROWER. EACH OF THE COMPANY AND EACH OTHER BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY OR SUCH OTHER BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH DUTCH BORROWER EXPRESSLY AND IRREVOCABLY
AGREES THAT SUCH SERVICE OF PROCESS MAY BE MADE DIRECTLY ON IT NOTWITHSTANDING ITS APPOINTMENT OF THE COMPANY TO RECEIVE SERVICE OF PROCESS AS PROVIDED ABOVE IN THIS SECTION 13.08(a) AND EITHER OR BOTH PROCEDURES FOR SERVICE OF PROCESS MAY BE
IMPLEMENTED. EACH OF THE COMPANY AND EACH OTHER BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY
OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY OTHER BORROWER IN ANY OTHER JURISDICTION.
(b) EACH OF THE COMPANY AND EACH OTHER BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE THAT ARE LOCATED IN THE COUNTY OF NEW YORK AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09. Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Company and
the Administrative Agent. Delivery of an executed counterpart hereof by facsimile or electronic transmission shall be as effective as delivery of an original executed counterpart hereof.
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13.10. Effectiveness. This Agreement shall become effective on the date (the
“Effective Date”) on which (i) the Company, the Subsidiaries of the Company that are other Borrowers on the Effective Date, the Administrative Agent, the Collateral Agent and each of the Lenders shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent at the Notice Office or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing),
written notice (actually received) at such office that the same has been signed and mailed to it and (ii) the conditions contained in Section 6 have been met to the reasonable satisfaction of the Administrative Agent. Unless the
Administrative Agent has received actual notice from any Lender that the conditions described in clause (ii) of the preceding sentence have not been met to its satisfaction, upon the satisfaction of the condition described in clause (i) of
the immediately preceding sentence and upon the Administrative Agent’s good faith determination that the conditions described in clause (ii) of the immediately preceding sentence have been met, then the Effective Date shall have deemed to
have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Effective Date shall not release any Borrower from any liability for failure to satisfy one or more
of the applicable conditions contained in Section 6, other than any condition that must be satisfied to the Administrative Agent’s satisfaction or other subjective standard of similar effect). The Administrative Agent will give the
Company, the other Borrowers and each Lender prompt written notice of the occurrence of the Effective Date.
13.11. Headings
Descriptive. The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
13.12. Amendment or Waiver; etc. (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be
changed, waived, discharged or terminated (other than in accordance with Section 2.19) unless such change, waiver, discharge or termination is in writing signed by the respective Credit Parties party hereto or thereto and the Required Lenders
(or by the Administrative Agent at the written direction of the Required Lenders) (although additional parties may be added to (and annexes may be modified to reflect such additions), and Subsidiaries of the Company (other than the Borrowers) may be
released from, the relevant Guaranty and the relevant Security Documents in accordance with the provisions hereof and thereof (without the consent of the other Credit Parties party thereto or the Required Lenders)), provided that no such
change, waiver, discharge or termination shall, without the consent of each Lender (other than, except with respect to the following clause (i), a Defaulting Lender) (with Obligations being directly affected in the case of following clauses (i),
(iii), (iv) and (vii)), (i) extend the final scheduled maturity of any Loan or Note or extend the stated expiration date of any Letter of Credit beyond the Final Maturity Date (unless otherwise cash collateralized in accordance with the
terms hereof), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with the waiver of applicability of any post-default increase in interest rates), or reduce (or forgive) the principal amount thereof
(it being understood that any amendment or modification to the financial definitions in this Agreement, to Section 13.07(a) or as contemplated in clause (6) of the second proviso of this Section 13.12(a) shall not constitute a
reduction in the rate of interest or Fees for the purposes of this clause (i)), (ii) release all or substantially all of the Collateral under all the Security Documents (except as expressly provided in the Credit Documents) or release all or
substantially all of the value of the Guaranty made by the Guarantors (except as expressly provided in the Credit Documents), (iii) amend, modify or waive any provision of this Section 13.12(a) (except for technical amendments with respect
to additional extensions of credit pursuant to this Agreement which afford the protections to such additional extensions of credit of the type provided to the
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Revolving Loan Commitments and the Loans on the Effective Date), Section 13.06 or any provision of Section 2.09 that expressly requires the consent of all Lenders, (iv) reduce the
“majority” voting threshold specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the extensions of Revolving Loan Commitments are included on the Effective Date), (v) increase the advance rates applicable to any Borrowing Base over those in effect on
the Effective Date (it being understood that the establishment, modification or elimination of Reserves and adjustment, establishment and elimination of criteria for Eligible Accounts and Eligible Inventory, in each case by the Administrative Agent
in accordance with the terms hereof, will not be deemed such an increase in advance rates), (vi) consent to the release, assignment or transfer by any Borrower of any of its rights and obligations under this Agreement, or (vii) amend,
modify or waive the order of application of payments set forth in Section 5.03(d), Section 5.03(e), Section 5.4 of the U.S. Security Agreement, Section 5.4 of the Dutch General Security Agreement, Section 5.3 of the Dutch
Inventory Security Agreement or Section 6.3 of the Dutch Receivables Security Agreement; provided further, that no such change, waiver, discharge or termination shall (1) increase the Revolving Loan Commitment of any Lender
over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Revolving Loan
Commitment shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of the Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan
Commitment of such Lender), (2) without the consent of each Issuing Lender, amend, modify or waive any provision of Section 3 or alter such Issuing Lenders’ rights or obligations with respect to Letters of Credit issued by such
Issuing Lender, (3) without the consent of the Swingline Lender, alter the Swingline Lender’s rights or obligations with respect to Swingline Loans, (4) without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 12 or any other provision of this Agreement or any other Credit Document as same relates to the rights or obligations of the Administrative Agent, (5) without the consent of the Collateral Agent, amend, modify or waive
any provision of the Agreement or any other Credit Documents relating to the rights or obligations of the Collateral Agent, (6) without the consent of the Supermajority Lenders, (x) amend the definition of Supermajority Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Supermajority Lenders on substantially the same basis as the extensions of Loans and
Revolving Loan Commitments are included on the Effective Date) or (y) amend or expand any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: any Borrowing Base,
Eligible Accounts, Eligible Cash and Cash Equivalents, Eligible Machinery and Equipment and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of
Reserves and adjustment, establishment and elimination of criteria for Eligible Accounts, Eligible Cash and Cash Equivalents, Eligible Machinery and Equipment and Eligible Inventory, in each case by the Administrative Agent in accordance with the
terms hereof, will not be deemed to require a Supermajority Lender consent).
(b) If, in connection with any proposed change, waiver,
discharge or termination of or to any of the provisions of this Agreement as contemplated by clauses (i) through (vii), inclusive, of the first proviso to Section 13.12(a), the consent of the Required Lenders is obtained but the consent of
one or more of such other Lenders whose consent is required is not obtained, then the Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 2.13 so long as at the time of such replacement, each such Replacement Lender consents to the
proposed change, waiver, discharge or termination or (B) terminate such non-consenting Lender’s Revolving Loan Commitment and/or repay all outstanding Revolving Loans of such Lender and/or cash collateralize its applicable
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RL Percentage of the Letter of Credit Outstandings in accordance with Sections 4.02(b) and/or 5.01(b), provided that, unless the Revolving Loan Commitments which are terminated and
Revolving Loans which are repaid pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of one or more Replacement Lenders or the increase of the Revolving Loan Commitments and/or outstanding
Revolving Loans of one or more existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the Required Lenders (determined after giving effect to the proposed action)
shall specifically consent thereto, provided further, that no Borrower shall have any right to replace a Lender, terminate its Revolving Loan Commitment or repay its Revolving Loans solely as a result of the exercise of such
Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 13.12(a).
(c) Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Company, the
other Borrowers, the Required Lenders and the Administrative Agent (and, if their rights or obligations are affected thereby, each Issuing Lender and the Swingline Lender) if (i) by the terms of such agreement the Revolving Loan Commitment of
each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment (including
pursuant to an assignment to a replacement Lender in accordance with Section 13.04) in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(d) Notwithstanding anything to the contrary contained in this Section 13.12, (x) Security Documents and related documents executed
by the Credit Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, restated, amended and restated, supplemented and waived with the consent of the Administrative Agent and
the Company without the need to obtain the consent of any other Person if such amendment, supplement or waiver is delivered (i) in order to comply with local law or advice of local counsel, (ii) in order to cause such Security Document or
other document to be consistent with this Agreement and the other Credit Documents or (iii) in connection with the incurrence of any Permitted Additional Secured Indebtedness or any Cash Flow Revolving Indebtedness (and, in each case, the
addition of Permitted Additional Secured Indebtedness Priority Collateral as Collateral) and the entry by the Collateral Agent into intercreditor arrangements in connection therewith and (y) if following the Effective Date, the Administrative
Agent and any Credit Party shall have jointly identified an ambiguity, inconsistency, obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents, then the Administrative Agent
and the Credit Parties shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Documents if the same is not objected to in writing by the Required
Lenders within five Business Days following receipt of notice thereof.
(e) Notwithstanding any provision herein to the contrary, this
Agreement and the other Credit Documents may be amended in accordance with Section 2.19 to effectuate an Extension and to provide for non-pro rata borrowings and payments of any amounts hereunder as between the Loans and any commitments in
connection therewith, in each case with the consent of the Administrative Agent but without the consent of any Lender (except as expressly provided in Section 2.19) required.
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13.13. Survival. All indemnities set forth herein including in Sections 2.10, 2.11, 3.06,
5.04, 12.06 and 13.01 shall survive the execution, delivery and termination of this Agreement and the Notes and the making and repayment of the Obligations.
13.14. Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate
of such Lender. Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 13.14 would, at the time of such transfer, result in increased costs or taxes under Section 2.10,
2.11, 3.06 or 5.04 from those being charged by the respective Lender prior to such transfer, then no Borrower shall be obligated to pay such increased costs or taxes (although the Borrowers shall be jointly and severally obligated to pay any other
increased costs and taxes of the type described above resulting from changes after the date of the respective transfer).
13.15.
Register. Each Borrower hereby designates the Administrative Agent to serve as its agent, solely for purposes of this Section 13.15, to maintain a register (the “Register”) on which it will record the Revolving Loan
Commitments from time to time of each of the Lenders, the Loans made by each of the Lenders and each repayment in respect of the principal amount of, and stated interest on, the Loans of each Lender. Failure to make any such recordation, or any
error in such recordation, shall not affect any Borrower’s obligations in respect of such Loans. With respect to any Lender, the transfer of the Revolving Loan Commitment of such Lender and the rights to the principal of, and interest on, any
Loan made pursuant to such Revolving Loan Commitment shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Revolving Loan Commitment and Loans and prior to
such recordation all amounts owing to the transferor with respect to such Revolving Loan Commitment and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Revolving Loan Commitments and Loans
shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Assumption Agreement pursuant to Section 13.04(b). Upon such acceptance and
recordation, the assignee specified therein shall be treated as a Lender for all purposes of this Agreement. Coincident with the delivery of such an Assignment and Assumption Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note (if any) evidencing such Loan, and thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the assigning or transferor Lender and/or the new Lender at the request of any such Lender. The Register shall be available for inspection by each Borrower at any reasonable time and from time to time upon reasonable prior
notice. The Register shall be available for inspection by any Lender at the office of the Administrative Agent at any reasonable time and from time to time upon reasonable prior notice.
13.16. Confidentiality. (a) Subject to the provisions of clause (b) of this Section 13.16, each Agent and each Lender
agrees not to disclose without the prior consent of the Company (other than on a need to know basis to such Agent’s or such Lender’s employees, auditors, advisors or counsel in connection with this Agreement and the transactions
contemplated hereby or to another Agent or Lender if such Lender or such Lender’s holding or parent company in its sole discretion determines that any such party should have access to such information, provided such Persons shall be
subject to the provisions of this Section 13.16 to the same extent as such Lender) any information with respect to the Company or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit
Document by or on behalf of a Credit Party, provided that any Agent or Lender may disclose any such information (i) as has become generally available to the public other than by virtue of a breach of this Section 13.16(a) by the
respective Agent or Lender, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body (including any self-regulatory body, such as the National Association of
Insurance Commissioners) having or claiming to
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have jurisdiction over such Agent or Lender or to the Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors
(in which case such Agent or Lender, as applicable, to the extent permitted by law, agrees to use commercially reasonable efforts to provide the Company notice thereof except in connection with any request as part of any regulatory audit or
examination conducted by accountants or any Governmental Authority having jurisdiction over such Agent or Lender), (iii) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation, (iv) in
order to comply with any law, order, regulation or ruling applicable to such Lender, (v) to the Administrative Agent or the Collateral Agent, (vi) to any direct or indirect contractual counterparty in any swap, hedge or similar agreement
(or to any such contractual counterparty’s professional advisor) under which payments are to be made by reference to the Obligations or to the Borrowers and their respective obligations or to this Agreement or payments hereunder, so long as
such contractual counterparty (or such professional advisor) agrees to be bound by the provisions of this Section 13.16, (vii) to any prospective or actual transferee, pledgee or participant in connection with any contemplated transfer,
pledge or participation of any of the Notes or Revolving Loan Commitments or any interest therein by such Lender, provided that such prospective transferee, pledgee or participant agrees to be bound by confidentiality provisions at least as
restrictive as those contained in this Section 13.16, (viii) to any other party to this Agreement, (ix) to the extent applicable and reasonably necessary or advisable, for purposes of establishing a “due diligence” defense
or the enforcement of remedies hereunder or under the other Credit Documents, (x) to the extent it is information pertaining to the terms of this Agreement routinely provided to market data collectors (including league table providers) for the
lending industry, to such market data collectors, (xi) to the extent it is information pertaining to the terms of this Agreement, to any nationally recognized rating agency that requires access to information about a Lender’s investment
portfolio in connection with ratings issued with respect to such Lender and (xii) with the consent of the Company (not to be unreasonably withheld, delayed or conditioned) to (I) the CUSIP Service Bureau or any similar agency or
organization or similar service providers to the lending industry, (II) service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement, the other Credit Documents, the Revolving
Loan Commitments and the Loans, (III) any credit insurers, (IV) any nationally recognized rating agency (to the extent consisting of information not governed by clause (xi) above) or (V) otherwise to the extent consisting of general
portfolio information that does not identify the Credit Parties.
(b) Each of the Company and each other Borrower hereby acknowledges and
agrees that each Agent and each Lender may share with any of its affiliates, and such affiliates may share with such Agent or Lender, as applicable, any information related to the Company or any of its Subsidiaries (including any non-public customer information regarding the creditworthiness of the Company and its Subsidiaries), provided such Persons shall be subject to the provisions of this Section 13.16 to the same extent as
such Agent or Lender.
(c) Each Agent and each of the Lenders acknowledges that (i) the information referred to in clause
(a) above may include material non-public information concerning the Company or a Subsidiary thereof, as the case may be, (ii) it has developed compliance procedures regarding the use of material non-public information and (iii) it
will handle such material non-public information in accordance with such compliance procedures and applicable law, including United States federal and state securities laws.
13.17. No Fiduciary Duty. Each Agent, each Lender, each Issuing Lender and their respective Affiliates (collectively, solely for
purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their respective affiliates. Each Credit Party agrees that nothing in the Credit Documents or
otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and any Credit Party, its respective stockholders or its respective affiliates, on
159
the other. The Credit Parties acknowledge and agree that: (i) the transactions contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and thereunder)
are arm’s-length commercial transactions between the Lenders, on the one hand, each Credit Party, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary
responsibility in favor of any Credit Party, its respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto
(irrespective of whether any Lender has advised, is currently advising or will advise any Credit Party, its respective stockholders or its respective Affiliates on other matters) or any other obligation to any Credit Party except the obligations
expressly set forth in the Credit Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of such Credit Party, its respective management, stockholders, creditors or any other Person. Each Credit Party
acknowledges and agrees that such Credit Party has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the
process leading thereto. Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Credit Party, in connection with such transaction or the
process leading thereto.
13.18. Patriot Act. Each Lender subject to the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into
law October 26, 2011)) (as amended from time to time, the “Patriot Act”) hereby notifies the Company and the other Borrowers that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies the Company, the other Borrowers and the other Credit Parties and such other information that will allow such Lender to identify the Company, the other Borrowers and the other Credit Parties in accordance with the Patriot
Act.
13.19. Waiver of Sovereign Immunity. Each of the Credit Parties, in respect of itself, its Subsidiaries, its process agents,
and its properties and revenues, hereby irrevocably agrees that, to the extent that such Credit Party, its Subsidiaries or any of its properties has or may hereafter acquire any right of immunity, whether characterized as sovereign immunity or
otherwise, from any legal proceedings, whether in the United States, the Netherlands or elsewhere, to enforce or collect upon the Loans or any Credit Document or any other liability or obligation of such Credit Party or any of its Subsidiaries
related to or arising from the transactions contemplated by any of the Credit Documents, including immunity from service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity
of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution upon a judgment, such Credit Party, for itself and on behalf of its Subsidiaries, hereby expressly waives, to the fullest extent
permissible under applicable law, any such immunity, and agrees not to assert any such right or claim in any such proceeding, whether in the United States, the Netherlands or elsewhere. Without limiting the generality of the foregoing, each Credit
Party further agrees that the waivers set forth in this Section 13.19 shall have the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act.
13.20. Judgment Currency. (a) The Credit Parties’ obligations hereunder and under the other Credit Documents to make
payments in the respective Available Currency (the “Obligation Currency”) shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the effective receipt by the Administrative Agent, the Collateral Agent, the respective Issuing Lender or the respective Lender of the full amount of the Obligation Currency (and
the conversion of any such payments shall be calculated in accordance with the provisions of this Section 13.20) expressed to be payable to the Administrative Agent, the Collateral Agent, such Issuing Lender or such Lender under this Agreement
or the other Credit Documents. If for the purpose of obtaining or enforcing judgment against any Credit Party in any court or in any jurisdiction, it becomes necessary to
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convert into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the “Judgment Currency”) an amount due in the
Obligation Currency, the conversion shall be made, at the rate of exchange (as quoted by the Administrative Agent or if the Administrative Agent does not quote a rate of exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent in its reasonable discretion) determined, in each case, as of the day on which the judgment is given (such day being hereinafter referred to as the “Judgment Currency Conversion Date”).
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, each Borrower covenants and agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at
the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate or exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any rate of exchange for this Section, such amounts
shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
13.21. OTHER LIENS ON
COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC. (a) EACH LENDER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT LIENS MAY BE CREATED ON THE COLLATERAL PURSUANT TO THE PERMITTED ADDITIONAL SECURED INDEBTEDNESS DOCUMENTS, WHICH LIENS SHALL BE
SUBJECT TO THE TERMS AND CONDITIONS OF THE INTERCREDITOR AGREEMENT. THE EXPRESS TERMS OF THE INTERCREDITOR AGREEMENT SHALL PROVIDE, IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND ANY OF THE CREDIT DOCUMENTS, THE
PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.
(b) EACH LENDER AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT
AND THE COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON BEHALF OF THE LENDERS, AND TO TAKE ALL ACTIONS (AND EXECUTE ALL DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE) BY IT IN ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR AGREEMENT.
THE PROVISIONS OF THIS SECTION 13.21 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST BE
MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE
ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT.
13.22. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Credit Document, the interest paid or agreed
to be paid under the Credit Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate,
161
the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged,
or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
SECTION 14. Nature of Obligations.
14.01. Nature of Obligations. Notwithstanding anything to the contrary contained elsewhere in this Agreement, it is understood and
agreed by the various parties to this Agreement that:
(a) all U.S. Borrower Obligations to repay principal of, interest on, and all
other amounts with respect to, all U.S. Borrower Revolving Loans, U.S. Borrower Swingline Loans, Letters of Credit issued for the account of any U.S. Borrower and all other U.S. Borrower Obligations pursuant to this Agreement and each other Credit
Document (including all fees, indemnities, taxes and other U.S. Borrower Obligations in connection therewith or in connection with the related Commitments) shall constitute the joint and several obligations of each of the U.S. Borrowers. In addition
to the direct (and joint and several) obligations of the U.S. Borrowers with respect to the U.S. Borrower Obligations as described above, all such U.S. Borrower Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the
U.S. Guaranty, provided that the obligations of a U.S. Borrower with respect to the U.S. Borrower Obligations as described above shall not be limited by any provision of the U.S. Guaranty entered into by such U.S. Borrower; and
(b) all Dutch Borrower Obligations to repay principal of, interest on, and all other amounts with respect to, all Dutch Borrower Revolving
Loans, Dutch Borrower Swingline Loans, Letters of Credit issued for the account of any Dutch Borrower and all other Dutch Borrower Obligations pursuant to this Agreement and each other Credit Document (including all fees, indemnities, taxes and
other Dutch Borrower Obligations in connection therewith or in connection with the related Commitments) shall constitute the joint and several obligations of each of the Dutch Borrowers. In addition to the direct (and joint and several) obligations
of the Dutch Borrowers with respect to Dutch Borrower Obligations as described above, all such Dutch Borrower Obligations shall be guaranteed pursuant to, and in accordance with the terms of, each of the U.S. Guaranty and the Dutch Guaranty.
14.02. Independent Obligation. The obligations of each Borrower with respect to its Borrower Obligations are independent of the
Obligations of each other Borrower or any Guarantor under its Guaranty of such Borrower Obligations, and a separate action or actions may be brought and prosecuted against each Borrower, whether or not any other Borrower or any Guarantor is joined
in any such action or actions. Each Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment by any Borrower or other circumstance
which operates to toll any statute of limitations as to any Borrower shall, to the fullest extent permitted by law, operate to toll the statute of limitations as to each Borrower.
14.03. Authorization. Each of the Borrowers authorizes the Administrative Agent, the Collateral Agent, the Issuing Lenders and the
Lenders without notice or demand (except as shall be required by applicable statute and cannot be waived), and without affecting or impairing its liability hereunder, from time to time to, to the maximum extent permitted by applicable law and the
Credit Documents:
(a) exercise or refrain from exercising any rights against any other Borrower or any Guarantor or others
or otherwise act or refrain from acting;
162
(b) release or substitute any other Borrower, endorsers, Guarantors or other
obligors;
(c) settle or compromise any of the Borrower Obligations of any other Borrower or any other Credit Party, any
security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of
any Borrower to its creditors other than the Lenders;
(d) apply any sums paid by any other Borrower or any other Person,
howsoever realized to any liability or liabilities of such other Borrower or other Person regardless of what liability or liabilities of such other Borrower or other Person remain unpaid; and/or
(e) consent to or waive any breach of, or act, omission or default under, this Agreement or any of the instruments or
agreements referred to herein, or otherwise, by any other Borrower or any other Person.
14.04. Reliance. It is not necessary for
the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender to inquire into the capacity or powers of the Company, any other Borrower or any of their respective Subsidiaries or the officers, directors, members, partners or
agents acting or purporting to act on its behalf, and any Borrower Obligations made or created in reliance upon the professed exercise of such powers shall constitute the joint and several obligations of the respective Borrowers hereunder.
14.05. Contribution; Subrogation. No Borrower shall exercise any rights of contribution or subrogation with respect to any other
Borrower as a result of payments made by it hereunder, in each case unless and until (a) the Total Revolving Loan Commitment and all Letters of Credit have been terminated (or have been cash collateralized or backstopped by another letter of
credit, in either case on terms and pursuant to arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such cash collateral or backstop letter of credit to
be in a stated amount equal to not more than 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time)) and (b) all of the Obligations have been paid in full in cash (other than any indemnities or other contingent
payment obligations of the Credit Parties set forth in the Credit Documents and reimbursement obligations under Section 13.01 which, in either case are not then due and payable). To the extent that any Dutch Credit Party or U.S. Credit Party
shall be required to pay a portion of the Obligations which shall exceed the amount of loans, advances or other extensions of credit received by such Credit Party and all interest, costs, fees and expenses attributable to such loans, advances or
other extensions of credit, then such Credit Party shall be reimbursed by the other Credit Parties within its group (Dutch or U.S.) for the amount of such excess, subject to the restrictions of the previous sentence. This Section 14.05 is
intended only to define the relative rights of Credit Parties, and nothing set forth in this Section 14.05 is intended or shall impair the obligations of each Credit Party to pay the Obligations as and when the same shall become due and payable
in accordance with the terms hereof.
14.06. Waiver. Each Borrower waives any right to require the Administrative Agent, the
Collateral Agent, the Issuing Lenders or the Lenders to (a) proceed against any other Borrower, any Guarantor or any other party, (b) proceed against or exhaust any security held from any Borrower, any Guarantor or any other party or
(c) pursue any other remedy in the Administrative Agent’s, the Collateral Agent’s, any Issuing Lender’s or Lenders’ power whatsoever. Each Borrower waives any defense based
163
on or arising out of suretyship or any impairment of security held from any Borrower, any Guarantor or any other party or
on or arising out of any defense of any other Borrower, any Guarantor or any other party other than payment in full in cash of its Borrower Obligations,
including any defense based on or arising out of the disability of any other Borrower, any Guarantor or any other party, or the unenforceability of its Borrower Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of any other Borrower, in each case other than as a result of the payment in full in cash of its Borrower Obligations.
14.07.
Limitation on Dutch Borrower Obligations. Notwithstanding anything to the contrary herein or in any other Credit Document (including provisions that may override any other provision), in no event shall the Dutch Borrowers or any other Dutch
Credit Party guarantee or be deemed to have guaranteed or become liable or obligated on a joint and several basis or otherwise for, or to have pledged any of its assets to secure, any direct U.S. Borrower Obligation under this Agreement or under any
of the other Credit Documents. All provisions contained in any Credit Document shall be interpreted consistently with this Section 14.07 to the extent possible, and where such other provisions conflict with the provisions of this
Section 14.07, the provisions of this Section 14.07 shall govern.
14.08. Rights and Obligations. The obligations of the
Swingline Lender, each Issuing Lender and each Lender under this Agreement bind each of them severally. Failure by the Swingline Lender, any Issuing Lender or any Lender, as the case may be, to perform its obligations under this Agreement does not
affect the obligations of any other party under this Agreement. The Swingline Lender, each Issuing Lender or each Lender is not responsible for the obligations of any other Swingline Lender, Issuing Lender or Lender, as the case may be, under this
Agreement. The rights, powers and remedies of the Swingline Lender, each Issuing Lender and each Lender in connection with this Agreement are separate and independent rights, powers and remedies and any debt arising under this Agreement to or for
the account of the Swingline Lender, any Issuing Lender or any Lender from a Credit Party is a separate and independent debt.
*
* *
164
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and
deliver this Agreement as of the date first above written.
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|
|
|
|
| Address: |
|
|
|
|
|
|
| Tesla Motors, Inc. 3500 Deer Creek Road
Palo Alto, California 94304 Attention: Chief Financial
Officer |
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TESLA MOTORS, INC. |
|
|
|
| with copies to: |
|
By: |
|
/s/ Deepak Ahuja |
|
|
Name: |
|
Deepak Ahuja |
|
|
Title: |
|
Chief Financial Officer |
|
|
| Tesla Motors, Inc. 3500 Deer Creek Road
Palo Alto, California 94304 Attention: General
Counsel |
|
TESLA MOTORS NETHERLANDS B.V. |
|
|
|
| and |
|
|
|
|
|
|
By: |
|
/s/ Todd Andrew Maron |
|
|
Name: |
|
Todd Andrew Maron |
|
|
Title: |
|
Managing Director |
|
|
|
| Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road Palo Alto, California 94304
Attention: Andrew J. Hirsch |
|
|
|
|
[Signature Page – Tesla Credit Agreement]
|
|
|
| DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent, as Collateral Agent, as Issuing Lender and as a Lender |
|
|
| By: |
|
/s/ Michael Shannon |
| Name: |
|
Michael Shannon |
| Title: |
|
Vice President |
|
|
| By: |
|
/s/ Peter Cucchiara |
| Name: |
|
Peter Cucchiara |
| Title: |
|
Vice President |
[Signature Page – Tesla Credit Agreement]
|
|
|
| Wells Fargo Bank, N.A., as
Documentation Agent and a Lender |
|
|
| By: |
|
/s/ Jeff Royston |
| Name: |
|
Jeff Royston |
| Title: |
|
Director |
[Signature Page – Tesla Credit Agreement]
|
|
|
| JPMorgan Chase Bank, N.A., as a
Syndication Agent and a Lender |
|
|
| By: |
|
/s/ Annaliese Fisher |
| Name: |
|
Annaliese Fisher |
| Title: |
|
Vice President |
[Signature Page – Tesla Credit Agreement]
|
|
|
| Goldman Sachs Bank USA, as a
Syndication Agent and a Lender |
|
|
| By: |
|
/s/ Rebecca Kratz |
| Name: |
|
Rebecca Kratz |
| Title: |
|
Authorized Signatory |
[Signature Page – Tesla Credit Agreement]
|
|
|
| Morgan Stanley Senior Funding Inc.,
As a Syndication Agent and Lender |
|
|
| By: |
|
/s/ Michael King |
| Name: |
|
Michael King |
| Title: |
|
Vice President |
[Signature Page – Tesla Credit Agreement]
|
|
|
| Bank of America, N.A. as a
Syndication Agent and a Lender |
|
|
| By: |
|
/s/ Robert M. Dalton |
| Name: |
|
Robert M. Dalton |
| Title: |
|
Senior Vice President |
[Signature Page – Tesla Credit Agreement]
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as a Lender |
|
|
| By: |
|
/s/ Vipul Dhadda |
| Name: |
|
Vipul Dhadda |
| Title: |
|
Authorized Signatory |
|
|
| By: |
|
/s/ D. Andrew Maletta |
| Name: |
|
D. Andrew Maletta |
| Title: |
|
Authorized Signatory |
[Signature Page – Tesla Credit Agreement]
Schedule 1.01(a)
Lenders; Commitments
Revolving Loan Commitments
|
|
|
|
|
| Lender |
|
Revolving Loan Commitment |
|
| DEUTSCHE BANK AG NEW YORK BRANCH |
|
$ |
80,000,000 |
|
| JPMORGAN CHASE BANK, N.A. |
|
$ |
80,000,000 |
|
| GOLDMAN SACHS BANK USA |
|
$ |
80,000,000 |
|
| MORGAN STANLEY SENIOR FUNDING INC. |
|
$ |
80,000,000 |
|
| BANK OF AMERICA, N.A. |
|
$ |
80,000,000 |
|
| WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
$ |
75,000,000 |
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
$ |
25,000,000 |
|
|
|
|
|
|
| TOTAL |
|
$ |
500,000,000 |
|
|
|
|
|
|
Schedule 13.03
Notice Addresses
|
|
|
| Lender |
|
Notice Address/Lending Offices |
| DEUTSCHE BANK AG NEW YORK BRANCH |
|
Deutsche Bank AG New York Branch 60 Wall
Street New York, NY 10005 Attention: Phelecia Parker
Telephone: 904-271-3583 Facsimile: 904-779-3080
Email: Agency.Transactions@db.com |
|
|
| JPMORGAN CHASE BANK, N.A. |
|
JPMorgan Chase Bank, N.A. 1111 Polaris
Parkway Columbus, OH 43240 Attention: Vivin Vinod
Telephone: +91-80-66763011 Facsimile: 312-377-1108
Email: cbc.participations@jpmchase.com |
|
|
| GOLDMAN SACHS BANK USA |
|
Goldman Sachs Bank USA 200 West Street
New York, NY 10282 Attention: Michelle Latzoni
Telephone: 212-902-1099 Facsimile: 917-977-3966 |
|
|
| MORGAN STANLEY SENIOR FUNDING INC. |
|
Morgan Stanley Senior Funding Inc. 1300
Thames Street Wharf, 4th floor Baltimore, MD 21231 Attention:
Morgan Stanley Loan Servicing Telephone: 443-627-4355
Facsimile: 718-233-2140 Email:
msloanservicing@morganstanley.com |
|
|
| BANK OF AMERICA, N.A. |
|
Bank of America, N.A. 20975 Swenson
Drive Waukesha, WI 53186 Attention: Laura Williams
Telephone: 262-207-3313 Facsimile: 312-453-2584
Email: laura.williams@baml.com |
|
|
|
| WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
Wells Fargo Bank, National Association 2450
Colorado Avenue, Suite 3000 West Santa Monica, CA 90404
Attention: Samuel Brunelle Telephone: 310-453-8273
Facsimile: 866-615-7803 Email:
samuel.d.brunelle@wellsfargo.com Additional Lending Office:
Wells Fargo Bank, N.A.
London Branch One Plantation Place
30 Fenchurch Street London, EC3M 3BD |
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
Credit Suisse AG, Cayman Islands Branch 7033
Louis Stephens Drive PO Box 110047 Research Triangle Park, NC
27709 Attention: Rafal Luczak Telephone: 919-994-6364
Facsimile: 866-469-3871 Email:
rafal.luczak@credit-suisse.com |
EXHIBIT A-1
FORM OF NOTICE OF BORROWING
,
20
|
|
|
| Deutsche Bank AG New York Branch as Administrative Agent (the “Administrative Agent”) for the Lenders party to the Credit Agreement referred to below |
|
|
60 Wall Street
New York, New
York 10005
Attention: Phelecia Parker
Telephone No.:
(904) 271-3583
Facsimile No.: (904) 779-3080
Email: Agency.Transactions@db.com
Ladies and Gentlemen:
The undersigned, [NAME OF BORROWER]1 (the “Borrower”), refers to the ABL Credit
Agreement, dated as of June 10, 2015 (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”, the capitalized terms defined therein being used herein as therein defined), among the
Borrower, the other Borrowers from time to time party thereto, the lenders from time to time party thereto (each, a “Lender” and collectively, the “Lenders”), you, as Administrative Agent and Collateral Agent for
such Lenders, and the other agents party thereto, and hereby gives you notice, irrevocably, pursuant to Section [2.03(a)][2.03(b)(i)]2 of the Credit Agreement, that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in connection therewith sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section [2.03(a)][2.03(b)(i)] of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is
, .3
| 1 |
Insert name of the Applicable Borrower. |
| 2 |
Use 2.03(a) for Revolving Loans and 2.03(b)(i) for Swingline Loans. |
| 3 |
Shall be (x) a Business Day at least one Business Date after the date hereof in the case of Base Rate Loans (including Agent Advances, but excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory
Borrowing) so long as this notice is received by the Administrative Agent prior to 2:00 P.M. (New York City time), (y) in the case of Swingline Loans the Business Day hereof so long as this notice is received by the Administrative Agent no
later than 2:00 P.M. (New York City time) or (z) a Business Day at least three Business Days (or four Business Days in the case of Loans denominated in Euros or an Acceptable Foreign Currency) after the date hereof in the case of LIBOR Loans so
long as this notice shall be received by the Administrative Agent prior to 2:00 P.M. (New York time). |
EXHIBIT A-1
Page 2
(ii) The aggregate principal amount of the Proposed Borrowing is
[US$ ] [€ ][Acceptable Foreign Currency].
(iii) The Loans to be made pursuant to the Proposed Borrowing shall consist of [U.S. Borrower Revolving Loans][Dutch Borrower
Revolving Loans][U.S. Borrower Swingline Loans][Dutch Borrower Swingline Loans].
(iv) [The Loans [will][will not]
constitute Agent Advances.]4
(v) The Loans to be made pursuant to the
Proposed Borrowing shall be initially maintained as [Base Rate Loans] [LIBOR Loans].
(vi) [The initial Interest Period for
the Proposed Borrowing is [one month][two months][three months][six months][other period].]5
(vii) The
[U.S.]6[Dutch]7 Borrowing Base (based on the Borrowing Base Certificate last delivered) is
.
The undersigned hereby
certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing and also after giving effect thereto:
(A) the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true
and correct in all material respects, with the same effect as though made on such date, unless any such representation or warranty is stated to relate to a specific earlier date, in which case such representation or warranty shall be 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 similar language shall be true and correct in
all respects on the date of the Proposed Borrowing or as of such earlier date, as applicable);
(B) no Default or Event of
Default exists;
(C) after giving effect to the Proposed Borrowing (and the use of the proceeds thereof), (i) [the
Aggregate U.S. Borrower Exposure will not exceed 100% (or, during an Agent Advance Period, 105%) of the U.S. Borrowing Base at such time][the Aggregate Dutch Borrower Exposure will not exceed 100% (or, during an Agent Advance Period, 105%) of the
Dutch Borrowing Base at such time] [and][,] (ii) the Aggregate Exposure will not exceed the Total Revolving Loan Commitment at such time[ and (iii) Excess Availability will exceed 10% of the Availability at such time]8; and
| 4 |
To be included only for a Proposed Borrowing of Revolving Loans. All paragraph numbers need to be renumbered accordingly. |
| 5 |
A period of less than one month with the consent of the Administrative Agent or such other period if agreed to by all Lenders. Paragraph (vi) should only be included for a Proposed Borrowing of Revolving Loans to
be maintained as LIBOR Loans. All paragraph numbers need to be renumbered accordingly. |
| 6 |
Insert if Borrower is a U.S. Borrower. |
| 7 |
Insert if Borrower is a Dutch Borrower. |
| 8 |
To be included only during a Reduced Availability Period. |
EXHIBIT A-1
Page 3
(D) [there are currently no outstanding Collateralized Letters of Credit][the
Borrower is in compliance with Section 7.04 of the Credit Agreement].
|
|
|
| Very truly yours, |
|
| [NAME OF BORROWER] |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
EXHIBIT A-2
FORM OF NOTICE OF CONVERSION/CONTINUATION
,
20
Deutsche Bank AG New York Branch,
as Administrative Agent for the Lenders party
to the Credit
Agreement
referred to below
60 Wall Street
New York, New York 10005
Attention: Phelecia Parker
Telephone No.: (904) 271-3583
Facsimile No.:
(904) 779-3080
Email: Agency.Transactions@db.com
Ladies and Gentlemen:
The undersigned, [NAME OF BORROWER]1 (the “Borrower”), refers to the ABL Credit Agreement, dated as of June 10, 2015 (as amended, restated, modified and/or supplemented from time to time, the “Credit
Agreement”, the capitalized terms defined therein being used herein as therein defined), among the Borrower, the other Borrowers from time to time party thereto, the lenders from time to time party thereto (each, a “Lender”
and collectively, the “Lenders”), you, as Administrative Agent and Collateral Agent for such Lenders, and the other agents party thereto, and hereby gives you notice, irrevocably, pursuant to Section
[2.06][2.09] of the Credit Agreement, that the undersigned hereby requests to [convert][continue] the Borrowing of [U.S. Borrower Revolving Loans][Dutch Borrower Revolving Loans] referred to below, and in
connection therewith sets forth below the information relating to such [conversion][continuation] (the “Proposed [Conversion][Continuation]”) as required by Section
[2.06][2.09] of the Credit Agreement:
(i) The Proposed
[Conversion][Continuation] relates to the Borrowing of [U.S. Borrower Revolving Loans][Dutch Borrower Revolving Loans] originally made on
, 20 (the “Outstanding Borrowing”) in the principal amount of
[$ ] [€ ][Acceptable Foreign Currency] and currently maintained as a Borrowing of [Base Rate
Loans][LIBOR Loans with an Interest Period ending on ,
].
(ii) The Business Day of the Proposed [Conversion][Continuation] is
, .2
| 1 |
Insert the name of the applicable Borrower. |
| 2 |
In the case of a conversion into, or a continuation of, LIBOR Loans, this date shall be a Business Day at least three Business Days after the date hereof (or with respect to any Loan denominated in Euros or an
Acceptable Foreign Currency, the fourth Business Day), or in the case of a conversion into Base Rate Loans, this date shall be a Business Day at least one Business Day after the date hereof; provided that such notice shall be deemed to have
been given on a certain day only if given before 2:00 P.M. (New York City time) on such day. |
EXHIBIT A-2
Page 2
(iii) The Outstanding Borrowing shall be [continued as a Borrowing of [LIBOR Loans with an Interest
Period of ][converted into a Borrowing of [Base Rate Loans][LIBOR Loans with an Interest Period of
].3
[The undersigned hereby certifies that no Default or Event of Default has occurred and will be continuing on the date of the Proposed
[Conversion][Continuation] or will have occurred and be continuing on the date of the Proposed [Conversion][Continuation]].4
|
|
|
| Very truly yours, |
|
| [NAME OF BORROWER] |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| 3 |
In the event that either (x) only a portion of the Outstanding Borrowing is to be so converted or continued or (y) the Outstanding Borrowing is to be divided into separate Borrowings with different Interest
Periods, the Borrower should make appropriate modifications to this clause to reflect same. |
| 4 |
In the case of a Proposed Conversion or Continuation, insert this sentence only (i) in the event that the conversion is from a Base Rate Loan to a LIBOR Loan or (ii) in the case of a continuation of a LIBOR
Loan. |
EXHIBIT B-1
FORM OF U.S. BORROWER REVOLVING NOTE
,
20
FOR VALUE RECEIVED, Tesla Motors, Inc., a Delaware corporation (the “Company”, and together with each
Wholly-Owned Domestic Subsidiary of the Company that becomes a U.S. Borrower under the Credit Agreement referred to below, each a “U.S. Borrower” and, collectively, the “U.S. Borrowers”), hereby jointly and
severally promise to pay to [ ] or its registered assigns (the “Lender”), in lawful money of the
relevant Available Currency (as defined in the Credit Agreement) in immediately available funds, at the Payment Office (as defined in the Credit Agreement referred to below), on the Final Maturity Date (as defined in the Credit Agreement) the
principal sum of U.S. DOLLARS ($ ) or, if less, the unpaid
principal amount of all U.S. Borrower Revolving Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement; provided that,
notwithstanding the fact that the principal amount of this Note is denominated in U.S. Dollars, to the extent provided in the Credit Agreement, all payments hereunder with respect to U.S. Borrower Revolving Loans shall be made in the respective
Available Currency, whether or not the U.S. Dollar Equivalent (as defined in the Credit Agreement) of such amounts would exceed the stated principal amount of this Note.
The U.S. Borrowers also jointly and severally promise to pay interest on the unpaid principal amount of each U.S. Borrower Revolving Loan made by the Lender
in like money at said office from the date hereof until paid, and payable at the rates and at the times provided in Section 2.08 of the Credit Agreement.
This Note is one of the U.S. Borrower Revolving Notes referred to in the ABL Credit Agreement, dated as of June 10, 2015, among 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 Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”;
and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders party thereto from time to time (including the Lender), Deutsche Bank AG New York Branch, as Collateral Agent and as
Administrative Agent, and the other agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”) and is entitled to the benefits thereof and of the other Credit Documents (as
defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) entered into by the U.S. Credit Parties and is entitled to the benefits of the U.S. Guaranty (as defined in the Credit Agreement).
As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Final Maturity Date, in whole or in part, and U.S. Borrower Revolving Loans may be converted from one Type (as defined in the
Credit Agreement) of U.S. Borrower Revolving Loan into another Type of U.S. Borrower Revolving Loan to the extent provided in the Credit Agreement.
EXHIBIT B-1
Page 2
In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal
of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
The U.S.
Borrowers hereby waive, to the fullest extent permitted by applicable law, presentment, demand, protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW 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).
|
|
|
| TESLA MOTORS, INC. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| [NAME OF OTHER BORROWERS]1 |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| 1 |
Include a signature block for each other U.S Borrower (if any) party to the Note. |
EXHIBIT B-2
FORM OF DUTCH BORROWER REVOLVING NOTE
,
20
FOR VALUE RECEIVED, Tesla Motors Netherlands B.V., a company organized under the laws of the Netherlands
(“Tesla B.V.”, and together with each Wholly-Owned Dutch Subsidiary (as defined in the Credit Agreement referred to below) of Tesla B.V. that becomes a Borrower under the Credit Agreement referred to below, each a “Dutch
Borrower” and, collectively, the “Dutch Borrowers”), hereby jointly and severally promise to pay to
[ ] or its registered assigns (the “Lender”), in lawful money of the relevant Available Currency
(as defined in the Credit Agreement) in immediately available funds, at the Payment Office (as defined in the Credit Agreement referred to below), on the Final Maturity Date (as defined in the Credit Agreement) the principal sum of
U.S. DOLLARS ($ ) or, if less, the unpaid principal amount of
all Dutch Borrower Revolving Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement; provided that, notwithstanding
the fact that the principal amount of this Note is denominated in U.S. Dollars, to the extent provided in the Credit Agreement, all payments hereunder with respect to Dutch Borrower Revolving Loans shall be made in the respective Available Currency,
whether or not the U.S. Dollar Equivalent (as defined in the Credit Agreement) of such amounts would exceed the stated principal amount of this Note.
The Dutch Borrowers also jointly and severally promise to pay interest on the unpaid principal amount of each Dutch Borrower Revolving Loan made by the Lender
in like money at said office from the date hereof until paid, and payable at the rates and at the times provided in Section 2.08 of the Credit Agreement.
This Note is one of the Dutch Borrower Revolving Notes referred to in the ABL Credit Agreement, dated as of June 10, 2015, among the Dutch Borrowers,
Tesla Motors, 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”; and the U.S. Borrowers, together with the Dutch Borrowers, collectively, the “Borrowers”), the lenders party thereto from time to time (including the Lender), Deutsche Bank AG New York Branch, as Collateral
Agent and as Administrative Agent, and the other agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”) and is entitled to the benefits thereof and of the other Credit
Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Guaranties (as defined in the Credit Agreement). As provided in the Credit
Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Final Maturity Date, in whole or in part, and Dutch Borrower Revolving Loans may be converted from one Type (as defined in the Credit Agreement) of Dutch
Borrower Revolving Loans into another Type of Dutch Borrower Revolving Loans to the extent provided in the Credit Agreement.
EXHIBIT B-2
Page 2
In case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal
of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
The Dutch
Borrowers hereby waive, to the fullest extent permitted by applicable law, presentment, demand, protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW 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).
|
|
|
| TESLA MOTORS NETHERLANDS B.V. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| [NAME OF OTHER BORROWERS]1 |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| 1 |
Include a signature block for each other Dutch Borrower (if any) party to the Note. |
EXHIBIT B-3
FORM OF U.S. BORROWER SWINGLINE NOTE
,
20
FOR VALUE RECEIVED, Tesla Motors, Inc., a Delaware corporation (the “Company”, and together with each
Wholly-Owned Domestic Subsidiary of the Company that becomes a U.S. Borrower under the Credit Agreement referred to below, each a “U.S. Borrower” and, collectively, the “U.S. Borrowers”), hereby jointly and
severally promise to pay to DEUTSCHE BANK AG NEW YORK BRANCH or its registered assigns (the “Lender”), in lawful money of the United States of America in immediately available funds, at the Payment Office (as defined in the Credit
Agreement referred to below), on the Swingline Expiry Date (as defined in the Credit Agreement) the principal sum of U.S.
DOLLARS ($ ) or, if less, the unpaid principal amount of all U.S. Borrower Swingline Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement, payable
at such times and in such amounts as are specified in the Credit Agreement.
The U.S. Borrowers also jointly and severally promise to pay interest on the
unpaid principal amount of each U.S. Borrower Swingline Loan made by the Lender in like money at said office from the date hereof until paid, and payable at the rates and at the times provided in Section 2.08 of the Credit Agreement.
This Note is the U.S. Borrower Swingline Note referred to in the ABL Credit Agreement, dated as of June 10, 2015, among 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 Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”; and the
Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders party thereto from time to time (including the Lender), Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative
Agent, and the other agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”) and is entitled to the benefits thereof and of the other Credit Documents (as defined in the
Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) entered into by the U.S. Credit Parties and is entitled to the benefits of the U.S. Guaranty (as defined in the Credit Agreement). As provided in
the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Swingline Expiry Date, in whole or in part.
In
case an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
EXHIBIT B-3
Page 2
The U.S. Borrowers hereby waive, to the fullest extent permitted by applicable law, presentment, demand,
protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW 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).
|
|
|
| TESLA MOTORS, INC. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| [NAME OF OTHER BORROWERS]1 |
|
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| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| 1 |
Include a signature block for each other U.S Borrower (if any) party to the Note. |
EXHIBIT B-4
FORM OF DUTCH BORROWER SWINGLINE NOTE
,
20
FOR VALUE RECEIVED, Tesla Motors Netherlands B.V., a company organized under the laws of the Netherlands
(“Tesla B.V.”, and together with each Wholly-Owned Dutch Subsidiary (as defined in the Credit Agreement referred to below) of Tesla B.V. that becomes a Borrower under the Credit Agreement referred to below, each a “Dutch
Borrower” and, collectively, the “Dutch Borrowers”), hereby jointly and severally promise to pay to DEUTSCHE BANK AG NEW YORK BRANCH or its registered assigns (the “Lender”), in lawful money of the United
States of America in immediately available funds, at the Payment Office (as defined in the Credit Agreement referred to below), on the Swingline Expiry Date (as defined in the Credit Agreement) the principal sum of
U.S. DOLLARS ($ ) or, if less, the unpaid principal amount of
all Dutch Borrower Swingline Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement.
The Dutch Borrowers also jointly and severally promise to pay interest on the unpaid principal amount of each Dutch Borrower Swingline Loan made by the Lender
in like money at said office from the date hereof until paid, and payable at the rates and at the times provided in Section 2.08 of the Credit Agreement.
This Note is the Dutch Borrower Swingline Note referred to in the ABL Credit Agreement, dated as of June 10, 2015, among the Dutch Borrowers, Tesla
Motors, 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”; and
the U.S. Borrowers, together with the Dutch Borrowers, collectively, the “Borrowers”), the lenders party thereto from time to time (including the Lender), Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative
Agent, and the other agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”) and is entitled to the benefits thereof and of the other Credit Documents (as defined in the
Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Guaranties (as defined in the Credit Agreement). As provided in the Credit Agreement, this Note is subject
to voluntary prepayment and mandatory repayment prior to the Swingline Expiry Date, in whole or in part.
In case an Event of Default (as defined in the
Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
EXHIBIT B-4
Page 2
The Dutch Borrowers hereby waive, to the fullest extent permitted by applicable law, presentment, demand,
protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW 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).
|
|
|
| TESLA MOTORS NETHERLANDS B.V. |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
|
| [NAME OF OTHER BORROWERS]1 |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| 1 |
Include a signature block for each other Dutch Borrower (if any) party to the Note. |
EXHIBIT C
FORM OF LETTER OF CREDIT REQUEST
Dated ,
20
Deutsche Bank AG New York Branch, as Administrative Agent, under the ABL
Credit Agreement, dated as of June 10, 2015 (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”), among Tesla Motors, Inc. (the “Company”), Tesla Motors Netherlands
B.V. (“Tesla B.V.”), the other Borrowers from time to time party thereto, the lenders party thereto from time to time, Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative Agent, and the other agents party
thereto.
60 Wall Street
New York, New York 10005
Attention: Phelecia Parker
Telephone No.: (904) 271-3583
Facsimile No.: (904) 779-3080
Email:
Agency.Transactions@db.com
[ ],1 as Issuing Lender
under the Credit Agreement
]
Attention:
[ ]
Ladies and Gentlemen:
Pursuant to Section 3.03 of the
Credit Agreement, the undersigned hereby requests that the Issuing Lender referred to above issue a [trade][standby] Letter of Credit for the account of the undersigned on
2 (the “Date of Issuance”), which Letter of
Credit shall be denominated in 3 and shall be in the aggregate
Stated Amount of .
For
purposes of this Letter of Credit Request, unless otherwise defined herein, all capitalized terms used herein which are defined in the Credit Agreement shall have the respective meaning provided therein.
| 1 |
Insert name and address of Issuing Lender. |
| 2 |
Date of Issuance which shall be a Business Day that is at least 2 Business Days after the date hereof (or such earlier date as is acceptable to the respective Issuing Lender in any given case). |
| 3 |
Insert applicable Available Currency in which the Letter of Credit is to be denominated. |
EXHIBIT C
Page 2
The beneficiary of the requested Letter of Credit will be
4 , and such Letter of Credit will be in support of
5 and will have a stated expiration date
of 6 .
The undersigned hereby certifies that:
| |
(A) |
the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects on the Date of Issuance, both before and after giving
effect to the issuance of the Letter of Credit requested hereby, unless any such representation or warranty is stated to relate to a specific earlier date, in which case such representation or warranty shall be 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 similar language shall be true and correct in all respects on the Date
of Issuance or as of such earlier date, as applicable); |
| |
(B) |
no Default or Event of Default exists nor, after giving effect to the issuance of the Letter of Credit requested hereby, would such a Default or Event of Default occur; |
| |
(C) |
after giving effect to the issuance of such Letter of Credit (and the use of the proceeds thereof), (i) [the Aggregate U.S. Borrower Exposure will not exceed 100% (or, during an Agent Advance Period, 105%) of the
U.S. Borrowing Base at such time][the Aggregate Dutch Borrower Exposure will not exceed 100% (or, during an Agent Advance Period, 105%) of the Dutch Borrowing Base at such time]; (ii) the Aggregate Exposure will not exceed the Total Revolving
Loan Commitment at such time[ and (iii) Excess Availability will exceed 10% of the Availability at such time]7; |
| |
(D) |
the Stated Amount of such Letter of Credit, when added to the Letter of Credit Outstandings, will not exceed $100,000,000 and the Stated Amount of such Letter of Credit, when added to the Letter of Credit Outstandings
in respect of Letters of Credit issued by the Issuing Lender at such time, will not exceed of $35,000,000; and |
| 4 |
Insert name and address of beneficiary. |
| 5 |
Insert a description of L/C Supportable Obligations (in the case of standby Letters of Credit) and insert description of permitted trade obligations of the Company or any of its Subsidiaries (in the case of trade
Letters of Credit), including, if applicable, the Subsidiary on whose behalf the Letter of Credit is being issued. |
| 6 |
Insert the last date upon which drafts may be presented which may not be later than the earlier of (x) twelve months after the Date of Issuance or such longer period as may be acceptable to the respective Issuing
Lender (although any such standby Letter of Credit may be extendible for successive periods of up to twelve months but, in each case, not beyond the fifth Business Day prior to the Final Maturity Date, unless cash collateralized in an amount equal
to 102% of the Stated Amount of such Letter of Credit in a manner reasonably acceptable to the respective Issuing Lender) and (y) the fifth Business Day preceding the Final Maturity Date unless cash collateralized in an amount equal to 102% of
the Stated Amount of such Letter of Credit in a manner reasonably acceptable to the respective Issuing Lender. |
| 7 |
To be included only during a Reduced Availability Period. |
EXHIBIT C
Page 3
| |
(E) |
[there are currently no outstanding Collateralized Letters of Credit][the Borrower is in compliance with Section 7.04 of the Credit Agreement]. |
Copies of all documentation with respect to the supported transaction are attached hereto or have been provided to the Issuing Lender.
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| [APPLICABLE BORROWER] |
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| By: |
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| Name: |
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| Title: |
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EXHIBIT D-1
[FORM OF]
U.S. TAX COMPLIANCE
CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of June 10, 2015, among Tesla Motors, 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 the Company that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”;
and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative Agent, and the other
agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 5.04(e)(ii)(B) of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (iii) it is not a “10-percent shareholder” of the Company within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to the Company as described in
Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company with a certificate of its
non-U.S. Person status on Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned
shall promptly so inform the Company and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
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| [NAME OF LENDER] |
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| By: |
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| Name: |
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| Title: |
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Date: ,
20[ ]
EXHIBIT D-2
[FORM OF]
U.S. TAX COMPLIANCE
CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of June 10, 2015, among Tesla Motors, 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 the Company that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”;
and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative Agent, and the other
agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 5.04(e)(ii)(B) of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10-percent
shareholder” of the Company within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on Internal Revenue Service Form
W-8BEN or Internal Revenue Service Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and
(2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
|
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| [NAME OF PARTICIPANT] |
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| By: |
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| Name: |
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| Title: |
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Date: ,
20[ ]
EXHIBIT D-3
[FORM OF]
U.S. TAX COMPLIANCE
CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of June 10, 2015, among Tesla Motors, 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 the Company that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”;
and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative Agent, and the other
agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 5.04(e)(ii)(B) of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither
the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of
the Code, (iv) none of its direct or indirect partners/members is a “10-percent shareholder” of the Company within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a
“controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned
has furnished its participating Lender with Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an Internal Revenue Service Form
W-8BEN or Internal Revenue Service Form W-8BEN-E or (ii) an Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E from each of such partner’s/member’s
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender
and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
EXHIBIT D-3
Page 2
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| [NAME OF PARTICIPANT] |
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| By: |
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| Name: |
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| Title: |
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Date: ,
20[ ]
EXHIBIT D-4
[FORM OF]
U.S. TAX COMPLIANCE
CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the ABL Credit Agreement, dated as of June 10, 2015, among Tesla Motors, 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 the Company that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”;
and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative Agent, and the other
agents party thereto (as amended, restated, modified and/or supplemented from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 5.04(e)(ii)(B) of the Credit Agreement, the undersigned hereby certifies that (i) it is the
sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any
Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank”
extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “10-percent
shareholder” of the Company within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Company as described in
Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company with Internal Revenue
Service Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E or
(ii) an Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio
interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of
the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
EXHIBIT D-4
Page 2
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| [NAME OF LENDER] |
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| By: |
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| Name: |
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| Title: |
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Date: ,
20[ ]
EXHIBIT E-1
FORM OF OFFICER’S CERTIFICATE - COMPANY
I, the undersigned, [Title of Authorized Officer] of Tesla Motors, Inc., a corporation organized and existing under the laws of the State of
Delaware (the “Company”), do hereby certify, solely in my capacity as an officer of the Company and not in my individual capacity, on behalf of the Company, that:
1. This Certificate is furnished pursuant to the ABL Credit Agreement, dated as of June 10, 2015, among the Company (together with and
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”; and the Dutch Borrowers, together with the U.S.
Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Administrative Agent and Collateral Agent, and the other agents party thereto (such ABL Credit Agreement,
as in effect on the date of this Certificate, being herein called the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.
2. The persons named in Exhibit A have been duly elected or appointed, have duly qualified as, and are acting officers of the Company,
holding the respective offices in Exhibit A set forth opposite their names, and the signatures on Exhibit A set forth opposite their names are their genuine signatures. Each such officer named in Exhibit A is duly authorized to
execute and deliver, on behalf of the Company, the Credit Agreement, the Credit Documents and all other related documents to which the Company is a party.
3. Attached hereto as Exhibit B is a certified copy of the Amended and Restated Certificate of Incorporation of the Company, as filed
in the Office of the Secretary of State of the State of Delaware on , , together with all amendments
thereto adopted through the date hereof, and said Certificate is in full force and effect as of the date hereof, and no further amendment thereto has been authorized.
4. Attached hereto as Exhibit C is a true, correct and complete copy of the Amended and Restated By-Laws of the Company which were duly
adopted and are in full force and effect on the date hereof, together with all amendments thereto adopted through the date hereof. No action has been taken by the Company or each of its shareholders, directors or officers to authorize or effect any
amendment or modification to, or withdrawal, cancellation or revocation of, such By-Laws.
5. Attached hereto as Exhibit D is a
true and correct copy of resolutions which were duly adopted on , [by unanimous written consent of
the Board of Directors of the Company][by a meeting of the Board of Directors of the Company at which a quorum was present and acting throughout], authorizing, among other things, the execution, delivery and performance of the Credit
Documents to which the Company is a party and the transactions contemplated thereby or incidental thereto, and said resolutions have not been rescinded,
EXHIBIT E-1
Page 2
amended or modified and remain in full force and effect as of the date hereof. Except as attached hereto as Exhibit D, no resolutions have been adopted by the Board of Directors of the
Company which deal with the execution, delivery or performance of any of the Credit Documents to which the Company is a party or relating to the matters set forth therein and any transactions contemplated thereby or incidental thereto.
6. On the date hereof, all of the conditions set forth in Sections 6.05, 6.13(b) and 7.01 of the Credit Agreement have been satisfied.
7. True and correct copies of the financial statements referred to in Section 8.05(a) of the Credit Agreement required to be delivered to
the Administrative Agent pursuant to Section 6.10 of the Credit Agreement have been delivered to the Administrative Agent prior to the date hereof.
8. On the date hereof, there is no pending proceeding for the dissolution or liquidation of the Company or, to the knowledge of the
undersigned, threatening its existence.
EXHIBIT E-1
Page 3
IN WITNESS WHEREOF, I have hereunto set my hand this day of
, .
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| TESLA MOTORS, INC. |
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| By: |
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| Name: |
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| Title: |
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EXHIBIT E-1
Page 4
I, the undersigned, [Secretary/Assistant Secretary] of the Company, do hereby
certify, solely in my capacity as an officer of the Company and not in my individual capacity, on behalf of the Company that:
1. [Name of Person
making above certifications] is the duly elected and qualified [Title of Authorized Officer] of the Company and the signature above is [his][her] genuine signature.
2. The certifications made by [name of Person making above certifications] on behalf of the Company in Items 2, 3, 4, 5 and 8 above are true and
correct.
IN WITNESS WHEREOF, I have hereunto set my hand this day of
, .
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| TESLA MOTORS, INC. |
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| By: |
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| Name: |
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| Title: |
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Exhibit A
Incumbency
| 1 |
Include name, office and signature of each officer who will sign any Credit Document on behalf of the Company, including the officer who will sign the certification at the end of this Certificate or related
documentation. |
Exhibit B
Amended and Restated Certificate of Incorporation
[Attached.]
Exhibit C
Amended and Restated By-Laws
[Attached.]
Exhibit D
Resolutions
[Attached.]
EXHIBIT E-2
FORM OF OFFICER’S CERTIFICATE - CREDIT PARTIES
I, the undersigned, [Title of Authorized Officer] of [Name of Credit Party], a [corporation] organized and existing under the laws of
[ ] (the “Company”), [which corporation constitutes the general partner of
, a [general][limited] partnership (the “Partnership”),][which corporation
constitutes the managing member of , a limited liability company (the “Limited
Liability Company”),] do hereby certify, solely in my capacity as an officer of the Company and not in my individual capacity, on behalf of the Company[, as the general partner of the Partnership][, as the managing member of the Limited
Liability Company], that:
1. This Certificate is furnished pursuant to the ABL Credit Agreement, dated as of June 10, 2015, among
Tesla Motors, Inc. (“Tesla”, and together with each Wholly-Owned Domestic Subsidiary of Tesla 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”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Administrative Agent and Collateral
Agent, and the other agents party thereto (such ABL Credit Agreement, as in effect on the date of this Certificate, being herein called the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this
Certificate shall have the meanings set forth in the Credit Agreement.
2. The persons named in Exhibit A have been duly elected or
appointed, have duly qualified as, and are acting officers of the Company, holding the respective offices in Exhibit A set forth opposite their names, and the signatures on Exhibit A set forth opposite their names are their genuine
signatures. Each such officer named in Exhibit A is duly authorized to execute and deliver, on behalf of the Company, the Credit Agreement, the Credit Documents and all other related documents to which the Company is a party.
3. Attached hereto as Exhibit B is a certified copy of the [Certificate of Incorporation of the Company][Certificate of
Partnership of the Partnership][Certificate of Formation of the Limited Liability Company], as filed in the Office of on
, , together with all amendments thereto adopted through the date hereof, and said
Certificate is in full force and effect as of the date hereof, and no further amendment thereto has been authorized.
4. Attached hereto
as Exhibit C is a [true, correct and complete copy of the By-Laws of the Company which were duly adopted and are in full force and effect on the date hereof][true and correct copy of the [Partnership Agreement of the
Partnership][Limited Liability Company Agreement of the Limited Liability Company], together with all amendments thereto adopted through the date hereof]. No action has been taken by the Company or any of its
[members,][shareholders, directors] or officers (as applicable) to authorize or effect any amendment or modification to, or withdrawal, cancellation or revocation of, such [By-Laws][Partnership Agreement of the Partnership][Limited
Liability Company Agreement of the Limited Liability Company].
EXHIBIT E-2
Page 2
5. Attached hereto as Exhibit D is a true and correct copy of resolutions which were
duly adopted on , [by unanimous written consent of the Board of Directors of
the Company][by a meeting of the Board of Directors of the Company at which a quorum was present and acting throughout], authorizing, among other things, the execution, delivery and performance of the Credit Documents to which the
Company[, as the general partner of the Partnership,][, as the managing member of the Limited Liability Company,] is a party and the transactions contemplated thereby or incidental thereto, and said resolutions have not been
rescinded, amended or modified and remain in full force and effect as of the date hereof. Except as attached hereto as Exhibit D, no resolutions have been adopted by the Board of Directors of the Company which deal with the execution, delivery or
performance of any of the Credit Documents to which the Company[, as the general partner of the Partnership,][, as the managing member of the Limited Liability Company,] is a party or relating to the matters set forth therein
and any transactions contemplated thereby or incidental thereto.
[6. Attached hereto as Exhibit E are true and correct copies of
the written advice from the works council in relation to the transactions contemplated by the Credit Agreement and any other documents required for compliance with the Dutch Works Council Act.]
* * *
EXHIBIT E-2
Page 3
IN WITNESS WHEREOF, I have hereunto set my hand this day of
, .
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| [NAME OF CREDIT PARTY] |
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| By: |
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| Name: |
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| Title: |
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EXHIBIT E-2
Page 4
I, the undersigned, [Secretary/Assistant Secretary] of the Company, do hereby
certify, solely in my capacity as an officer of the Company and not in my individual capacity, on behalf of the Company[, as general partner of the Partnership,] [, as the managing member of the Limited Liability Company,] that:
1. [Name of Person making above certifications] is the duly elected and qualified [Title of Authorized Officer] of the
Company and the signature above is [his] [her] genuine signature.
2. The certifications made by [name of Person making
above certifications] on behalf of the Company in Items 2, 3, 4 [and][,] 5 [and 6] above are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this day of ,
.
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| [NAME OF CREDIT PARTY] |
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| By: |
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| Name: |
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| Title: |
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Exhibit A
Incumbency
| 1 |
Include name, office and signature of each officer who will sign any Credit Document on behalf of the Company, including the officer who will sign the certification at the end of this Certificate or related
documentation. |
Exhibit B
[Certificate of Incorporation of the Company][Certificate of Partnership of the
Partnership][Certificate of Formation of the Limited Liability Company]
[Attached.]
Exhibit C
[By-Laws][Partnership Agreement][Limited Liability Company Agreement]
[Attached.]
Exhibit D
Resolutions
[Attached.]
Exhibit E
[Dutch Works Council Advice]
[Attached.]
EXHIBIT F
FORM OF INCREMENTAL COMMITMENT AGREEMENT
[Name(s) of Lender(s)]
[Date]
Tesla Motors, Inc.
Tesla Motors Netherlands B.V.
c/o Tesla Motors, Inc.
[EACH OTHER BORROWER
c/o Tesla Motors, Inc.]
3500 Deer Creek Road
Palo Alto, California 94304
Attention: Chief Financial
Officer
Email: deepak@teslamotors.com and mike@teslamotors.com
Facsimile: 650-681-5203
with copies to:
Tesla Motors, Inc.
3500 Deer Creek Road
Palo Alto, California 94304
Attention: General Counsel
Email: tmaron@teslamotors.com and jchang@teslamotors.com
Facsimile: 650-681-5203
and
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill
Road
Palo Alto, California 94304
Attention: Andrew J.
Hirsch
Facsimile: 650-493-6811
Email: ahirsch@wsgr.com
Re: Incremental Commitments
Ladies and Gentlemen:
Reference is hereby made to the ABL Credit Agreement, dated as of June 10, 2015, among Tesla Motors, 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,
EXHIBIT F
Page 2
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”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time
to time party thereto (the “Lenders”), Deutsche Bank AG New York Branch, as Administrative Agent (the “Administrative Agent”) and as Collateral Agent, and the other agents party thereto (as amended, restated,
modified or supplemented from time to time, the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings set forth in the Credit Agreement. Each lender (each, an
“Incremental Lender”) party to this letter agreement (this “Agreement”) hereby severally agrees to provide the Incremental Commitment set forth opposite its name on Annex I attached hereto (for each such
Incremental Lender, its “Incremental Commitment”). Each Incremental Commitment provided pursuant to this Agreement shall be subject to all of the terms and conditions set forth in the Credit Agreement, including, without limitation,
Sections 2.01(a) and 2.14 thereof.
Each Incremental Lender, the Borrowers and the Administrative Agent acknowledge and agree that the Incremental
Commitments provided pursuant to this Agreement shall constitute Incremental Commitments and, upon the Agreement Effective Date (as hereinafter defined), the Incremental Commitment of each Incremental Lender shall become, or in the case of an
existing Lender, shall be added to (and thereafter become a part of), the Revolving Loan Commitment of such Incremental Lender. Each Incremental Lender, the Borrowers and the Administrative Agent further agree that, with respect to the Incremental
Commitment provided by each Incremental Lender pursuant to this Agreement, such Incremental Lender shall receive from the Company such upfront fees and/or other fees, if any, as may be separately agreed to in writing with the Company and
acknowledged by the Administrative Agent, all of which fees shall be due and payable to such Incremental Lender on the terms and conditions set forth in each such separate agreement. Each Incremental Lender, the Borrowers and the Administrative
Agent further agree that the Loans made in respect of the Incremental Commitments shall constitute Revolving Loans for all purposes of the Credit Agreement and the other Credit Documents.
Furthermore, each of the parties to this Agreement hereby agrees to the terms and conditions set forth on Annex I hereto in respect of each Incremental
Commitment provided pursuant to this Agreement.
Each Incremental Lender party to this Agreement, to the extent not already a party to the Credit
Agreement as a Lender thereunder, (i) confirms that it is an Eligible Transferee, (ii) confirms that it has received a copy of the Credit Agreement and the other Credit Documents, together with copies of the financial statements referred
to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to become a Lender under the Credit Agreement, (iii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under
the Credit Agreement and the other Credit Documents, (iv) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the Administrative Agent and the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto, (v) agrees that it will perform in accordance with
their terms all
EXHIBIT F
Page 3
of the obligations which by the terms of the Credit Agreement and the other Credit Documents are required to be performed by it as a Lender, and (vi) in the case of each Incremental Lender
organized under the laws of a jurisdiction outside the United States, attaches the forms and/or applicable certificate referred to in Section 5.04(e) of the Credit Agreement.
Upon the date of (i) the execution of a counterpart of this Agreement by each Incremental Lender, each Borrower, each Guarantor, the Administrative
Agent, the Swingline Lender and each Issuing Lender if required pursuant to Section 2.14(a)(ii) of the Credit Agreement, (ii) the delivery to the Administrative Agent and the Borrowers of a fully executed counterpart (including by way of
facsimile or other electronic transmission) hereof, (iii) the payment of any fees then due and payable in connection herewith and (iv) the satisfaction of any other conditions precedent set forth in Section 3 of Annex I hereto
(such date, the “Agreement Effective Date”), each Incremental Lender party hereto (i) shall be obligated to make the Revolving Loans provided to be made by it as provided in this Agreement, and participate in Swingline Loans
and Letters of Credit made or issued on the terms, and subject to the conditions, set forth in the Credit Agreement and in this Agreement and (ii) to the extent provided in this Agreement, shall have the rights and obligations of a Lender under
the Credit Agreement and the other applicable Credit Documents.
Each U.S. Borrower acknowledges and agrees that (i) it shall be jointly and
severally liable for all U.S. Borrower Obligations of any U.S. Borrowers in the same manner with respect to the Incremental Commitments provided hereby as provided in the Credit Agreement including, without limitation, all U.S. Borrower Revolving
Loans made pursuant thereto, and (ii) all such Obligations (including all such U.S. Borrower Revolving Loans) shall be entitled to the benefits of the respective Security Documents and Guaranties in accordance with the requirements of the
Credit Agreement.
Each Dutch Borrower acknowledges and agrees that (i) it shall be jointly and severally liable for all Dutch Borrower Obligations
of any Dutch Borrowers in the same manner with respect to the Incremental Commitments provided hereby as provided in the Credit Agreement including, without limitation, all Dutch Borrower Revolving Loans made pursuant thereto, and (ii) all such
Obligations (including all such Dutch Borrower Revolving Loans) shall be entitled to the benefits of the respective Security Documents and Guaranties in accordance with the requirements of the Credit Agreement.
Each Borrower acknowledges and agrees that, on the Agreement Effective Date, (i) the representations and warranties contained in the Credit Agreement and
in the other Credit Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on the Agreement Effective Date, both before and after giving effect to the Credit Event to
occur on the Agreement Effective Date and the application of the proceeds thereof, unless such representation or warranty is stated to relate to a specific earlier date, in which case such representation or warranty was 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 similar language shall be true and correct in all respects on
the Agreement Effective Date or such earlier date, as applicable), and (ii) no Default or Event of Default exists or would exist after giving effect to the Credit Event to occur on the Agreement Effective Date or the application of proceeds
therefrom.
EXHIBIT F
Page 4
Each Guarantor acknowledges and agrees that all Obligations with respect to the Incremental Commitments
provided hereby and all Revolving Loans made pursuant hereto shall (i) be fully guaranteed pursuant to the relevant Guaranties as, and to the extent, provided therein and in the Credit Agreement and (ii) be entitled to the benefits of the
Credit Documents as, and to the extent, provided therein and in the Credit Agreement.
Attached hereto as Annex II are true and correct copies of
officers’ certificates, board of director (or equivalent) resolutions, good standing certificates and opinions of counsel (which are substantially similar to such opinions of counsel delivered on the Effective Date) of the Credit Parties
required to be delivered pursuant to clause (iv) of the definition of “Incremental Commitment Requirements” appearing in Section 1.01 of the Credit Agreement.
Attached hereto as Annex III is a true and correct copy of the officer’s certificate of the Company required to be delivered pursuant to clause
(v) of the definition of “Incremental Commitment Requirements” appearing in Section 1.01 of the Credit Agreement.
You may accept this
Agreement by signing the enclosed copies in the space provided below, and returning one copy of same to us (including by facsimile or other electronic transmission in accordance with Section 13.03 of the Credit Agreement) before the close of
business on , 20 . If you do not so accept this Agreement by such time, our Incremental Commitments set forth in this Agreement
shall be deemed canceled.
After the execution and delivery to the Administrative Agent of a fully executed copy of this Agreement (including by way of
counterparts and by facsimile or other electronic transmission) by the parties hereto, this Agreement may only be changed, modified or varied by written instrument in accordance with the requirements for the modification of Credit Documents pursuant
to Section 13.12 of the Credit Agreement.
In the event of any conflict between the terms of this Agreement and those of the Credit Agreement, the
terms of the Credit Agreement shall control.
* * *
EXHIBIT F
Page 5
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
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| Very truly yours, |
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| [NAME OF EACH INCREMENTAL LENDER] |
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| By |
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| Name: |
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| Title |
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Agreed and Accepted
this
day of , 20 :
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| TESLA MOTORS, INC. |
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| By: |
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| Name: |
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| Title: |
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| TESLA MOTORS NETHERLANDS B.V. |
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| By: |
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| Name: |
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| Title: |
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| [EACH OTHER BORROWER] |
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| By: |
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| Name: |
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| Title: |
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EXHIBIT F
Page 6
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent, Issuing Lender and Swingline Lender
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| By: |
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| Name: |
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| Title: |
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| By: |
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| Name: |
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| Title: |
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| [EACH OTHER ISSUING LENDER] |
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| By: |
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| Name: |
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| Title:] |
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EXHIBIT F
Page 7
Each Guarantor acknowledges and agrees to each of the foregoing provisions of this
Incremental Commitment Agreement and to the incurrence of Revolving Loans to be made pursuant thereto.
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| [EACH GUARANTOR], as a Guarantor |
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| By: |
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| Name: |
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| Title: |
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ANNEX I
TERMS AND CONDITIONS FOR INCREMENTAL COMMITMENT AGREEMENT
Dated as of , 20
| 1. |
Names of the Borrowers: |
| 2. |
Incremental Commitment amounts (as of the Agreement Effective Date): |
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| Names of Incremental Lenders |
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Amount of Incremental
Commitment to be added to the
Total Revolving Loan
Commitment |
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| Total:1 |
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| 3. |
Other Conditions Precedent:2 |
| 1 |
The aggregate amount of Incremental Commitments must be at least $50,000,000 (or such lesser amount that is acceptable to the Administrative Agent). The aggregate amount of all Incremental Commitments permitted to be
provided pursuant to Section 2.14 of the Credit Agreement shall not exceed in the aggregate $250,000,000. |
| 2 |
Insert any additional conditions precedent which may be required to be satisfied prior to the Agreement Effective Date. |
ANNEX II
[True and correct copies of officers’ certificates, board of director (or equivalent) resolutions, good standing certificates and opinions
of counsel (which are substantially similar to such opinions of counsel delivered on the Effective Date) of the Credit Parties, delivered pursuant to clause (iv) of the definition of “Incremental Commitment Requirements” appearing in
Section 1.01 of the Credit Agreement.]
ANNEX III
[True and correct copy of the Officer’s Certificate of the Company required to be delivered pursuant to clause (v) of the definition
of “Incremental Commitment Requirements” appearing in Section 1.01 of the Credit Agreement.]
EXHIBIT G-1
FORM OF DUTCH GUARANTY
[Provided
under Separate Cover]
EXHIBIT G-1
FORM OF DUTCH GUARANTY
GUARANTY (as amended, modified, restated and/or supplemented from time to time, this “Guaranty”), dated as of June 10,
2015, made by and among each of the undersigned guarantors (each, a “Guarantor” and, together with any other entity that becomes a guarantor hereunder pursuant to Section 23 hereof, collectively, the
“Guarantors”) in favor of Deutsche Bank AG New York Branch, as administrative agent (together with any successor administrative agent, the “Administrative Agent”), for the benefit of the Secured Creditors (as
defined below). Certain capitalized terms as used herein are defined in Section 1 hereof. Except as otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H:
WHEREAS, Tesla Motors, Inc., a Delaware corporation (the “Company”, 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., a company organized under the laws of the Netherlands (“Tesla
B.V.” and together with each other 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”; and the Dutch Borrowers,
together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc.
and Bank of America, N.A., as Syndication Agents, Wells Fargo Bank, National Association, as Documentation Agent, and Deutsche Bank AG New York Branch, as Collateral Agent (together with any successor collateral agent, the “Collateral
Agent”) and as Administrative Agent, have entered into an ABL Credit Agreement, dated as of June 10, 2015 (as amended, modified, restated and/or supplemented from time to time, the “Credit Agreement”), providing for
the making of Loans to the Borrowers, and the issuance of, and participation in, Letters of Credit for the account of the Borrowers, all as contemplated therein (the Lenders, each Issuing Lender, the Administrative Agent and the Collateral Agent are
herein called the “Secured Creditors”);
WHEREAS, each Guarantor (other than Tesla B.V.) is a Wholly-Owned Dutch
Subsidiary of Tesla B.V.;
WHEREAS, it is a condition precedent to the making of Loans to the Borrowers, and the issuance of (and
participation in) Letters of Credit for the account of the Borrowers, in each case under the Credit Agreement, that each Guarantor shall have executed and delivered to the Administrative Agent this Guaranty; and
WHEREAS, each Guarantor will benefit from the incurrence of Loans by the Dutch Borrowers and the issuance of (and participation in) Letters of
Credit for the account of the Dutch Borrowers under the Credit Agreement and, accordingly, desires to execute this Guaranty in order to (i) satisfy the condition described in the preceding paragraph and (ii) induce the Lenders to make
Loans to the Dutch Borrowers and issue (and/or participate in) Letters of Credit for the account of the Dutch Borrowers;
Page 2
to Exhibit G-1
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each
Guarantor, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby makes the following representations and warranties to the Administrative Agent for the benefit of the Secured Creditors and hereby covenants and agrees
with each other Guarantor and the Administrative Agent for the benefit of the Secured Creditors as follows:
1. GUARANTY
Each Guarantor, jointly and severally, irrevocably, absolutely and unconditionally guarantees as a primary obligor and not merely as surety to
the Secured Creditors the full and prompt payment when due (whether at the stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of (i) the principal of, premium, if any, and interest on the Notes issued by,
and the Loans made to, the Dutch Borrowers under the Credit Agreement, and all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit issued for the account of a Dutch Borrower and (ii) all other obligations (including,
without limitation, obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due), liabilities and indebtedness owing by the Dutch Borrowers to the Secured Creditors under the Credit Agreement and
each other Credit Document to which any Dutch Borrower is a party (including, without limitation, indemnities, Fees and expenses in respect of which a Dutch Borrower is obligated and interest thereon (including, without limitation, in each case any
interest, fees or expenses accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided for in the Credit Agreement, whether or not such interest, fees or 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 (all such principal, premium, interest, reimbursement obligations, Unpaid Drawings, liabilities, indebtedness and
obligations being herein collectively called the “Guaranteed Obligations”). For the avoidance of doubt, in no event shall the Guaranteed Obligations of any Guarantor include any Obligations of any U.S. Borrower or any U.S.
Subsidiary Guarantor.
Each Guarantor understands, agrees and confirms that the Secured Creditors may enforce this Guaranty up to the full
amount of the Guaranteed Obligations against such Guarantor without proceeding against any other Guarantor or any other guarantor of the Guaranteed Obligations, or any Borrower, or against any security for the Guaranteed Obligations, or under any
other guaranty covering all or a portion of the Guaranteed Obligations. This Guaranty is a guaranty of prompt payment and performance and not of collection. For purposes of this Guaranty, the term “Guarantor” as applied to any Borrower
shall refer to such Borrower as a guarantor of indebtedness incurred by another Borrower, and not indebtedness directly incurred by such Borrower.
The following capitalized terms used herein shall have the definitions specified below:
“Termination Date” shall mean the date upon which the Total Revolving Loan Commitment under the Credit Agreement has been
terminated, no Note is outstanding (and all Loans and Unpaid Drawings have been paid in full), all Letters of Credit have been terminated (or have been cash collateralized or backstopped by another letter of credit, in either case on terms and
pursuant to arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such cash collateral or backstop letter of credit to be in a stated amount equal to at
least 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time)), and all other Guaranteed Obligations (other than indemnities and other contingent payment obligations under the Credit Documents which are not then due
and payable) then due and payable have been paid in full.
Page 3
to Exhibit G-1
(b) Additionally, each Guarantor, jointly and severally, unconditionally, absolutely and
irrevocably, guarantees the payment of any and all Guaranteed Obligations whether or not due and payable by any Dutch Borrower upon the occurrence, in respect of any Borrower, of any of the events specified in Section 11.05 of the Credit
Agreement, and unconditionally, absolutely and irrevocably, jointly and severally, promises to pay such Guaranteed Obligations to the Secured Creditors, or order, on demand.
2. LIABILITY OF GUARANTORS ABSOLUTE
The liability of each Guarantor hereunder is primary, absolute, joint and several, and unconditional and is exclusive and independent of any
security for or other guaranty of the indebtedness of the Dutch Borrowers whether executed by such Guarantor, any other Guarantor, any other guarantor or by any other party, and the liability of each Guarantor hereunder shall not be affected or
impaired by any circumstance or occurrence whatsoever, including, without limitation: (a) any direction as to application of payment by any Dutch Borrower or any other party, (b) any other continuing or other guaranty, undertaking or
maximum liability of a Guarantor or of any other party as to the Guaranteed Obligations, (c) any payment on or in reduction of any such other guaranty or undertaking, (d) any dissolution, termination or increase, decrease or change in
personnel by any Borrower, (e) the failure of a Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty, (f) any payment made to any Secured Creditor on the indebtedness which any
Secured Creditor repays any Dutch Borrower or any other party pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding, (g) any action or inaction by the Secured Creditors as contemplated in Section 5 hereof or (h) any invalidity, rescission, irregularity or unenforceability of all or any
part of the Guaranteed Obligations or of any security therefor.
3. OBLIGATIONS OF GUARANTORS INDEPENDENT
The obligations of each Guarantor hereunder are independent of the obligations of any other Guarantor, any other guarantor or any Borrower, and
a separate action or actions may be brought and prosecuted against each Guarantor whether or not action is brought against any other Guarantor, any other guarantor or any Dutch Borrower and whether or not any other Guarantor, any other guarantor or
any Borrower is joined in any such action or actions. Each Guarantor waives (to the fullest extent permitted by applicable law) the benefits of any statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment by
any Dutch Borrower or other circumstance which operates to toll any statute of limitations as to any Dutch Borrower shall operate to toll the statute of limitations as to each Guarantor.
4. WAIVERS BY GUARANTORS
(a) Each Guarantor hereby waives (to the fullest extent permitted by applicable law) notice of acceptance of this Guaranty and notice of the
existence, creation or incurrence of any new or additional liability to which it may apply, and waives (to the fullest extent permitted by applicable law) promptness, diligence, presentment, demand of payment, demand for performance, protest, notice
of dishonor or nonpayment of any such liabilities, suit or taking of other action by the Administrative Agent or any other Secured Creditor against, and any other notice to, any party liable thereon (including such Guarantor, any other Guarantor,
any other guarantor or any Borrower) and each Guarantor further hereby waives (to the fullest extent permitted by applicable law) any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice or
proof of reliance by any Secured Creditor upon this Guaranty, and the Guaranteed Obligations shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified, supplemented or waived, in reliance upon
this Guaranty.
Page 4
to Exhibit G-1
(b) Each Guarantor waives any right (except as shall be required by applicable law and cannot
be waived) to require the Secured Creditors to: (i) proceed against any Dutch Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party; (ii) proceed against or exhaust any security held from any
Dutch Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any other remedy in the Secured Creditors’ power whatsoever. Each Guarantor waives any defense based on or arising
out of any defense of any Dutch Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party other than the occurrence of the Termination Date, including, without limitation, any defense based on or arising out
of the disability of any Dutch Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party, or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any
cause of the liability of any Dutch Borrower other than the occurrence of the Termination Date. The Secured Creditors may, at their election, upon the occurrence and during the continuance of an Event of Default, foreclose on any collateral serving
as security held by the Administrative Agent, the Collateral Agent or the other Secured Creditors by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the Secured Creditors may have against any Dutch Borrower or any other party, or any security, without affecting or impairing in any way the liability of any Guarantor hereunder
except to the extent the Termination Date has occurred. Each Guarantor waives (to the fullest extent permitted by applicable law) any defense arising out of any such election by the Secured Creditors, even though such election may operate to impair
or extinguish any right of reimbursement, contribution, indemnification or subrogation or other right or remedy of such Guarantor against any Dutch Borrower, any other guarantor of the Guaranteed Obligations or any other party or any security.
(c) Each Guarantor has knowledge and assumes all responsibility for being and keeping itself informed of each Dutch Borrower’s and each
other Guarantor’s financial condition, affairs and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks which such Guarantor assumes and incurs
hereunder, and has adequate means to obtain from each Dutch Borrower and each other Guarantor on an ongoing basis information relating thereto and each Dutch Borrower’s and each other Guarantor’s ability to pay and perform its respective
Guaranteed Obligations, and agrees to assume the responsibility to keep so informed for so long as such Guarantor is a party to this Guaranty. Each Guarantor acknowledges and agrees that (x) the Secured Creditors shall have no obligation to
investigate the financial condition or affairs of any Dutch Borrower or any other Guarantor for the benefit of such Guarantor nor to advise such Guarantor of any fact respecting, or any change in, the financial condition, assets or affairs of any
Dutch Borrower or any other Guarantor that might become known to any Secured Creditor at any time, whether or not such Secured Creditor knows or believes or has reason to know or believe that any such fact or change is unknown to such Guarantor, or
might (or does) increase the risk of such Guarantor as guarantor hereunder, or might (or would) affect the willingness of such Guarantor to continue as a Guarantor hereunder and (y) the Secured Creditors shall have no duty to advise any
Guarantor of information known to them regarding any of the aforementioned circumstances or risks.
(d) Each Guarantor hereby acknowledges
and agrees that no Secured Creditor nor any other Person shall be under any obligation (a) to marshal any assets in favor of such Guarantor or in payment of any or all of the liabilities of any Dutch Borrower under the Credit Documents or the
obligation of such Guarantor hereunder or (b) to pursue any other remedy that such Guarantor may or may not be able to pursue itself any right to which such Guarantor hereby waives.
Page 5
to Exhibit G-1
(e) Each Guarantor warrants and agrees that each of the waivers set forth in Section 3
hereof and in this Section 4 is made with full knowledge of its significance and consequences and that if any of such waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective only to the
maximum extent permitted by applicable law.
5. RIGHTS OF SECURED CREDITORS
Any Secured Creditor may (except as shall be required by applicable law and cannot be waived) at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring responsibility to such Guarantor, without impairing or releasing the obligations or liabilities of such Guarantor hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change, increase or extend the time of payment of, renew,
increase, accelerate or alter, any of the Guaranteed Obligations (including, without limitation, any increase or decrease in the rate of interest thereon or the principal amount thereof), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the Guaranteed Obligations as so changed, extended, increased, accelerated, renewed or altered;
(b) take and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, surrender, impair,
realize upon or otherwise deal with in any manner and in any order any property or other collateral by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;
(c)
exercise or refrain from exercising any rights against any Dutch Borrower, any other Credit Party, any Subsidiary thereof, any other guarantor of any Dutch Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors, other guarantors, any Dutch Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Dutch Borrower to creditors of any Dutch Borrower other
than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of
any Dutch Borrower to the Secured Creditors regardless of what liabilities of such Dutch Borrower remain unpaid;
(g)
consent to or waive any breach of, or any act, omission or default under, any of the Credit Documents or any of the instruments or agreements referred to therein, or otherwise amend, modify or supplement any of the Credit Documents or any of such
other instruments or agreements;
(h) act or fail to act in any manner which may deprive such Guarantor of its right to
subrogation against any Dutch Borrower to recover full indemnity for any payments made pursuant to this Guaranty; and/or
Page 6
to Exhibit G-1
(i) take any other action or omit to take any other action which would, under
otherwise applicable principles of common law, give rise to a legal or equitable discharge of such Guarantor from its liabilities under this Guaranty (including, without limitation, any action or omission whatsoever that might otherwise vary the
risk of such Guarantor or constitute a legal or equitable defense to or discharge of the liabilities of a guarantor or surety or that might otherwise limit recourse against such Guarantor).
No invalidity, illegality, irregularity or unenforceability of all or any part of the Guaranteed Obligations, the Credit Documents or any other agreement or
instrument relating to the Guaranteed Obligations or of any security or guarantee therefor shall affect, impair or be a defense to this Guaranty, and this Guaranty shall be primary, absolute and unconditional notwithstanding the occurrence of any
event or the existence of any other circumstances which might constitute a legal or equitable discharge of a surety or guarantor except the occurrence of the Termination Date.
6. CONTINUING GUARANTY
This Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any Secured Creditor in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein expressly specified are cumulative and not exclusive of any rights or remedies which any
Secured Creditor would otherwise have. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Secured
Creditor to any other or further action in any circumstances without notice or demand. It is not necessary for any Secured Creditor to inquire into the capacity or powers of any Dutch Borrower or the officers, directors, partners or agents acting or
purporting to act on its or their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
7. SUBORDINATION OF INDEBTEDNESS HELD BY GUARANTORS
Any indebtedness of any Dutch Borrower now or hereafter held by any Guarantor is hereby subordinated to the Guaranteed Obligations of such
Dutch Borrower to the Secured Creditors; and the indebtedness of such Dutch Borrower to any Guarantor, if the Administrative Agent or the Collateral Agent, after an Event of Default has occurred and is continuing, so requests, to the extent such
indebtedness constitutes Collateral shall be collected, enforced and received by such Guarantor as trustee for the Secured Creditors and be paid over to the Secured Creditors on account of the Guaranteed Obligations of such Dutch Borrower to the
Secured Creditors, but without affecting or impairing in any manner the liability of such Guarantor under the other provisions of this Guaranty. Without limiting the generality of the foregoing, each Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at any time otherwise have as a result of this Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until the Termination Date;
provided, that if any amount shall be paid to such Guarantor on account of such subrogation rights at any time prior to the Termination Date, such amount shall be held in trust for the benefit of the Secured Creditors and shall promptly be
paid to the Secured Creditors to be credited and applied upon the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Credit Documents or, if the Credit Documents do not provide for the application of such
amount, to be held by the Secured Creditors as collateral security for any Guaranteed Obligations thereafter existing.
Page 7
to Exhibit G-1
8. GUARANTY ENFORCEABLE BY ADMINISTRATIVE AGENT OR COLLATERAL AGENT
Notwithstanding anything to the contrary contained elsewhere in this Guaranty, the Secured Creditors agree (by their acceptance of the benefits
of this Guaranty) that this Guaranty may be enforced only by the action of the Administrative Agent or the Collateral Agent, in each case acting upon the instructions of the Required Lenders and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Guaranty or to realize upon the security to be granted by the Security Documents, it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent or the
Collateral Agent, as the case may be, for the benefit of the Secured Creditors upon the terms of this Guaranty and the Security Documents. The Secured Creditors further agree that this Guaranty may not be enforced against any director, officer,
employee, partner, member or stockholder of any Guarantor (except to the extent such partner, member or stockholder is also a Guarantor hereunder). It is understood and agreed that the agreement in this Section 8 is among and solely for the
benefit of the Secured Creditors and that, if the Required Lenders so agree (without requiring the consent of any Guarantor), this Guaranty may be directly enforced by any Secured Creditor.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GUARANTORS
In order to induce the Lenders to make Loans to, and issue Letters of Credit for the account of, the Dutch Borrowers pursuant to the Credit
Agreement, each Guarantor represents and warrants that:
(a) such Guarantor (i) is a duly organized and validly
existing Business, (ii) has the Business power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the nature of its business requires such qualification, except for failures to be in good standing or so qualified which, either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect;
(b) such Guarantor has the Business power and authority to execute, deliver and perform
the terms and provisions of each of the Credit Documents to which it is a party and has taken all necessary Business action to authorize the execution, delivery and performance by it of each of the Credit Documents to which it is a party;
(c) such Guarantor has duly executed and delivered each of the Credit Documents to which it is a party, and each such Credit
Documents to which it is a party constitutes the legal, valid and binding obligation of such Guarantor enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(d) neither the execution, delivery or performance by such Guarantor of the Credit Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, will (i) contravene any provision of any applicable law, statute, rule or regulation or any applicable order, writ, injunction or decree of any court or Governmental Authority,
(ii) conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of any Guarantor pursuant to the terms of any material indenture, mortgage, deed of trust, credit agreement, or loan agreement, or any other material agreement, contract or instrument, in
each
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case, to which any Guarantor or any of its Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject or (iii) violate any provision of
the certificate or articles of incorporation, by-laws, partnership agreement or limited liability company agreement (or equivalent organizational documents), as applicable, of such Guarantor or any of its respective Subsidiaries;
(e) no order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for
(x) those that have otherwise been obtained or made prior to the Effective Date and which remain in full force and effect on the Effective Date and (y) filings which are necessary to perfect the security interests created or intended to be
created under the Security Documents), or exemption by, any Governmental Authority is required to be obtained, or made by, or on behalf of the Guarantor to authorize, or is required to be obtained, or made by, or on behalf of the Guarantor in
connection with, (i) the execution, delivery and performance by such Guarantor of the Credit Documents to which such Guarantor is a party or (ii) the legality, validity, binding effect or enforceability against such Guarantor of any Credit
Document to which such Guarantor is a party; and
(f) there are no actions, suits or proceedings pending or, to the
knowledge of any Responsible Officer of such Guarantor, threatened in writing (i) that purports to affect the legality, validity or enforceability of any Credit Document to which such Guarantor is a party or (ii) with respect to such
Guarantor or any of its Subsidiaries that, either individually or in the aggregate, could reasonably be expected to have, a Material Adverse Effect.
Until the Termination Date, such Guarantor will comply, and will cause each of its Subsidiaries to comply, with all of the applicable
provisions, covenants and agreements contained in Sections 9 and 10 of the Credit Agreement which are expressly applicable to such Guarantor and/or such Guarantor’s Subsidiaries, and will take, or will refrain from taking, as the case may be,
all actions that are necessary to be taken or not taken so that no violation of any provision, covenant or agreement contained in Sections 9 and 10 of the Credit Agreement which are expressly applicable to such Guarantor and/or such Guarantor’s
Subsidiaries, and so that no Default or Event of Default, is caused by the actions of such Guarantor or any of its Subsidiaries.
10.
EXPENSES
The Guarantors hereby jointly and severally agree to pay all reasonable and documented out-of-pocket costs and expenses of
the Collateral Agent, the Administrative Agent and each other Secured Creditor following the occurrence and during the continuance of an Event of Default in connection with the enforcement of this Guaranty and the protection of the Secured
Creditors’ rights hereunder and any amendment, waiver or consent relating hereto (including, in each case, without limitation, the reasonable and invoiced fees and disbursements of consultants and counsel employed by the Collateral Agent, the
Administrative Agent and each other Secured Creditor (but limited, in the case of attorneys’ fees and disbursements, to one counsel to the Secured Creditors, taken as a whole, one local counsel for the Collateral Agent and Administrative Agent
and the Secured Creditors, taken as a whole, in each relevant jurisdiction, and, solely in the case of an actual or perceived conflict of interests, one additional counsel in each relevant jurisdiction to each group of affected Secured Creditors
similarly situated, taken as a whole)).
11. BENEFIT AND BINDING EFFECT
This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the Secured Creditors and
their successors and assigns.
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12. AMENDMENTS; WAIVERS
Neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby (it being understood that the addition or release of any Guarantor hereunder shall not constitute a change, waiver, discharge or termination affecting any Guarantor other than the Guarantor so added or released)
and with the written consent of the Required Lenders (or, to the extent required by Section 13.12 of the Credit Agreement, with the written consent of each Lender) at all times prior to the Termination Date.
13. SET OFF
In addition
to any rights now or hereafter granted under applicable law (including, without limitation, Section 151 of the New York Debtor and Creditor Law) and not by way of limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, each Secured Creditor, with the consent of the Administrative Agent, is hereby authorized, at any time or from time to time, without notice to any Guarantor or to any other Person, any such notice being expressly waived (to the
extent permitted by applicable law), to set off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by such Secured Creditor to or for the credit or the account of such
Guarantor, against and on account of the obligations and liabilities of such Guarantor to such Secured Creditor under this Guaranty, irrespective of whether or not such Secured Creditor shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be contingent or unmatured. Each Secured Creditor (by its acceptance of the benefits hereof) acknowledges and agrees that the provisions of this Section 13 are subject to the
sharing provisions set forth in Section 13.06 of the Credit Agreement.
14. NOTICE
Except as otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be
sent or delivered by mail, email, telecopy or courier service and all such notices and communications shall, when mailed, emailed, telecopied or sent by courier, be effective when received by the Administrative Agent or such Guarantor, as the case
may be. All notices and other communications shall be in writing and addressed to such party at (i) in the case of any Secured Creditor, as provided in the Credit Agreement and (ii) in the case of any Guarantor, at its address set forth
opposite its signature page below; or in any case at such other address as any of the Persons listed above may hereafter notify the others in writing.
15. REINSTATEMENT
Notwithstanding anything to the contrary contained herein, if any claim is ever made upon any Secured Creditor for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including, without limitation, any Dutch Borrower), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be binding upon such Guarantor, notwithstanding any revocation hereof or the cancellation of any Note, any other Credit Document or any other instrument evidencing any
liability of any Dutch Borrower, and such Guarantor shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
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16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; AND WAIVER OF TRIAL BY JURY
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW 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) (OR, IN RESPECT OF SECTION 24, NETHERLANDS LAW). ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT TO WHICH ANY GUARANTOR IS A PARTY SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
IN EACH CASE LOCATED WITHIN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN (OR, IN RESPECT OF SECTION 24, THE COURTS OF AMSTERDAM, THE NETHERLANDS), AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH GUARANTOR, AND
AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION
OVER SUCH GUARANTOR. EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
EACH GUARANTOR AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN, HOWEVER, SHALL
AFFECT THE RIGHT OF ANY OF THE SECURED CREDITORS TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GUARANTOR IN ANY OTHER JURISDICTION.
(b) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE
THAT ARE LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN, AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES
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ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
17. RELEASE OF LIABILITY OF GUARANTOR
In the event that all of the Equity Interests of one or more Guarantors (other than a Dutch Borrower) is sold or otherwise disposed of in a
transaction not prohibited by the Credit Agreement or liquidated in compliance with the requirements of Section 10.02 of the Credit Agreement (or such sale, other disposition or liquidation has been approved in writing by the Required Lenders
(or all the Lenders if required by Section 13.12 of the Credit Agreement)), to the extent applicable, such Guarantor shall, or upon consummation of such sale or other disposition (except to the extent that such sale or disposition is to the
Company or another Subsidiary thereof), as applicable, shall be released from this Guaranty automatically and without further action and this Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no further force or effect (it
being understood and agreed that the sale of one or more Persons that own, directly or indirectly, all of the Equity Interests of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes of this Section 17). Subject to
Section 15, on the Termination Date this Guaranty shall terminate (provided that all indemnities set forth herein shall survive such termination) and each Guarantor shall be released from its obligations under this Guaranty.
18. CONTRIBUTION
At any
time a payment in respect of the Guaranteed Obligations is made under this Guaranty, the right of contribution of each Guarantor against each other Guarantor shall be determined as provided in the immediately following sentence, with the right of
contribution of each Guarantor to be revised and restated as of each date on which a payment (a “Relevant Payment”) is made on the Guaranteed Obligations under this Guaranty. At any time that a Relevant Payment is made by a
Guarantor that results in the aggregate payments made by such Guarantor in respect of the Guaranteed Obligations to and including the date of the Relevant Payment exceeding such Guarantor’s Contribution Percentage (as defined below) of the
aggregate payments made by all Guarantors in respect of the Guaranteed Obligations to and including the date of the Relevant Payment (such excess, the “Aggregate Excess Amount”), each such Guarantor shall have a right of
contribution against each other Guarantor who has made payments in respect of the Guaranteed Obligations to and including the date of the Relevant Payment in an aggregate amount less than such other Guarantor’s Contribution Percentage of the
aggregate payments made to and including the date of the Relevant Payment by all Guarantors in respect of the Guaranteed Obligations (the aggregate amount of such deficit, the “Aggregate Deficit Amount”) in an amount equal to
(x) a fraction the numerator of which is the Aggregate Excess Amount of such Guarantor and the denominator of which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate Deficit Amount of such other Guarantor. A
Guarantor’s right of contribution pursuant to the preceding sentences shall arise at the time of each computation, subject to adjustment to the time of each computation; provided that no Guarantor may take any action to enforce such
right until the Termination Date, it being expressly recognized and agreed by all parties hereto that any Guarantor’s right of contribution arising pursuant to this Section 18 against any other Guarantor shall be expressly junior and
subordinate to such other Guarantor’s obligations and liabilities in respect of the Guaranteed Obligations and any other obligations owing under this Guaranty. As used in this Section 18: (i) each Guarantor’s
“Contribution Percentage” shall mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net Worth of all Guarantors; (ii) the
“Adjusted Net Worth” of each Guarantor shall mean the greater of (x) the Net Worth (as defined below) of such Guarantor and (y) zero; and (iii) the “Net Worth” of each Guarantor shall mean the amount
by which the fair saleable value of such Guarantor’s assets on the date of any Relevant
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Payment exceeds its existing debts and other liabilities (including contingent liabilities, but without giving effect to any Guaranteed Obligations arising under this Guaranty or any guaranteed
obligations arising under any guaranty of any Permitted Additional Indebtedness) on such date. Notwithstanding anything to the contrary contained above, any Guarantor that is released from this Guaranty pursuant to Section 17 hereof shall
thereafter have no contribution obligations, or rights, pursuant to this Section 18, and at the time of any such release, if the released Guarantor had an Aggregate Excess Amount or an Aggregate Deficit Amount, same shall be deemed reduced to
$0, and the contribution rights and obligations of the remaining Guarantors shall be recalculated on the respective date of release (as otherwise provided above) based on the payments made hereunder by the remaining Guarantors. All parties hereto
recognize and agree that, except for any right of contribution arising pursuant to this Section 18, each Guarantor who makes any payment in respect of the Guaranteed Obligations shall have no right of contribution or subrogation against any
other Guarantor in respect of such payment until the Termination Date. Each of the Guarantors recognizes and acknowledges that the rights to contribution arising hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to waive its contribution right against any Guarantor to the extent that after giving effect to such waiver such Guarantor would remain solvent, in the determination of the Required
Lenders.
19. LIMITATION ON GUARANTEED OBLIGATIONS
Each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Guaranty) hereby confirms that it is its intention that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any similar Federal or state law. To effectuate the foregoing intention, each Guarantor and each Secured
Creditor (by its acceptance of the benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed Obligations guaranteed by such Guarantor shall be limited to such amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such Guarantor that are relevant under such laws and after giving effect to any rights to contribution pursuant to any agreement providing for an equitable contribution among such Guarantor and the other
Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of such maximum amount not constituting a fraudulent transfer or conveyance.
20. COUNTERPARTS
This
Guaranty may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Company and the Administrative Agent. Delivery of an executed counterpart hereof by facsimile or electronic transmission shall be as effective as delivery
of an original executed counterpart hereof.
21. PAYMENTS
All payments made by any Guarantor hereunder will be made without setoff, counterclaim or other defense and on the same basis as payments are
made by the applicable Borrowers under Sections 5.03 and 5.04 of the Credit Agreement.
22. JUDGMENT CURRENCY
(a) The Guarantors’ obligations hereunder to make payments in the Obligation Currency shall not be discharged or satisfied by any tender
or recovery pursuant to any judgment
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expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Administrative Agent or
the other Secured Creditors of the full amount of the Obligation Currency expressed to be payable to the Administrative Agent or the other Secured Creditors under this Guaranty. If for the purpose of obtaining or enforcing judgment against any
Guarantor in any court or in any jurisdiction, it becomes necessary to convert into or from the Judgment Currency an amount due in the Obligation Currency, the conversion shall be made, at the rate of exchange (as quoted by the Administrative Agent
or if the Administrative Agent does not quote a rate of exchange on such currency, by a known dealer in such currency designated by the Administrative Agent) determined, in each case, as of the Judgment Currency Conversion Date.
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, each Guarantor covenants and agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at
the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate or exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any rate of exchange for this Section 22, such
amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
23. ADDITIONAL
GUARANTORS
It is understood and agreed that any Wholly-Owned Dutch Subsidiary of Tesla B.V. that is required to execute a counterpart
of this Guaranty after the date hereof pursuant to the Credit Agreement shall become a Guarantor hereunder by (x) executing and delivering a counterpart hereof, or a Joinder Agreement and delivering same to the Administrative Agent and
(y) taking all actions as specified in this Guaranty as would have been taken by such Guarantor had it been an original party to this Guaranty, in each case with all documents required above to be delivered to the Administrative Agent and
actions required to be taken above to be taken to the reasonable satisfaction of the Administrative Agent.
24. DUTCH PARALLEL DEBT
(a) Each Guarantor irrevocably and unconditionally undertakes to pay to the Collateral Agent amounts equal to, and in the currency or
currencies of, its Dutch Corresponding Debt on the terms and conditions specified in Section 12.12 of the Credit Agreement.
(b) The
Dutch Parallel Debt of each Guarantor (i) shall become due and payable at the same time as its Dutch Corresponding Debt; and (ii) is independent and separate from, and without prejudice to, its Dutch Corresponding Debt.
(c) For purposes of this Section 24, the Collateral Agent (i) is the independent and separate creditor of each Dutch Parallel Debt;
(ii) acts in its own name and not as agent, representative or trustee of the Secured Creditors and its claims in respect of each Dutch Parallel Debt shall not be held on trust; and (iii) shall have the independent and separate right to
demand payment of each Dutch Parallel Debt in its own name (including, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
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(d) The Dutch Parallel Debt of each Guarantor shall be (i) decreased to the extent that
its Dutch Corresponding Debt has been irrevocably and unconditionally paid or discharged, and (ii) increased to the extent to that its Dutch Corresponding Debt has increased, and the Dutch Corresponding Debt of each Guarantor shall be
(x) decreased to the extent that its Dutch Parallel Debt has been irrevocably and unconditionally paid or discharged, and (y) increased to the extent that its Dutch Parallel Debt has increased, in each case provided that the Dutch Parallel
Debt of a Guarantor shall never exceed its Dutch Corresponding Debt.
(e) Each Guarantor may not pay any of its Dutch Parallel Debt other
than at the instruction of, and in the manner determined by, the Collateral Agent. Without prejudice to the preceding sentence, each Dutch Credit Party shall be obliged to pay the Dutch Parallel Debt (or if such Guarantor‘s Dutch Corresponding
Debt is due at different times, an amount of the relevant Dutch Parallel Debt corresponding to its relevant Dutch Corresponding Debt) only when its relevant Dutch Corresponding Debt has become due.
(f) All parties to this Agreement have acknowledged and agreed with and/or shall acknowledge and agree with the provisions of this
Section 24.
(g) For the avoidance of doubt, each Guarantor and the Collateral Agent acknowledge and agree that the rules applicable
in respect of common property (gemeenschap) do not apply, whether or not by analogy, to the relation between any relevant parties to the relevant Dutch Security Agreement as a result of the provisions in this Section 24.
(h) All amounts received or recovered by the Collateral Agent in connection with Section 12.12 of the Credit Agreement and owed to
Lenders, to the extent permitted by applicable law, shall be applied in accordance with Section 13.06 of the Credit Agreement.
(i)
This Section 24 applies for the purpose of determining the Secured Obligations in each Dutch Security Agreement.
25. HEADINGS
DESCRIPTIVE
The headings of the several Sections of this Guaranty are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Guaranty.
26. INTERCREDITOR AGREEMENT
This Guaranty is subject to the Intercreditor Agreement at any time such Intercreditor Agreement is in effect and applicable to the Dutch
Borrowers and the Dutch Subsidiary Guarantors. In the event of a conflict between the terms of this Guaranty and the Intercreditor Agreement, the Intercreditor Agreement shall control.
* * *
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered as of
the date first above written.
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GUARANTORS: |
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| Tesla Motors, Inc. |
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TESLA MOTORS NETHERLANDS B.V. |
| 3500 Deer Creek Road |
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| Palo Alto, California 94304 |
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| Attention: Chief Financial Officer |
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By: |
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| Email: deepak@teslamotors.com and |
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Name: |
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| mike@teslamotors.com |
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Title: |
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| Facsimile: 650-681-5203 |
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Tesla Motors, Inc.
3500 Deer Creek Road Palo Alto, California 94304
Attention: General Counsel Email: tmaron@teslamotors.com and
jchang@teslamotors.com Facsimile: 650-681-5203
and
Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill
Road Palo Alto, California 94304 Attention: Andrew J.
Hirsch Facsimile: 650-493-6811 Email:
ahirsch@wsgr.com |
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Signature Page to Tesla Dutch Guaranty
Accepted and Agreed to:
DEUSTCHE BANK AG NEW YORK BRANCH,
as Administrative Agent
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Signature Page to Tesla Dutch Guaranty
EXHIBIT G-2
FORM OF U.S. GUARANTY
[Provided
under Separate Cover]
EXHIBIT G-2
FORM OF U.S. GUARANTY
GUARANTY (as amended, modified, restated and/or supplemented from time to time, this “Guaranty”), dated as of June 10,
2015, made by and among each of the undersigned guarantors (each, a “Guarantor” and, together with any other entity that becomes a guarantor hereunder pursuant to Section 23 hereof, collectively, the
“Guarantors”) in favor of Deutsche Bank AG New York Branch, as administrative agent (together with any successor administrative agent, the “Administrative Agent”), for the benefit of the Secured Creditors (as
defined below). Certain capitalized terms as used herein are defined in Section 1 hereof. Except as otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H:
WHEREAS, Tesla Motors, Inc., a Delaware corporation (the “Company”, 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., a company organized under the laws of the Netherlands (“Tesla
B.V.” and together with each other 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”; and the Dutch Borrowers,
together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc.
and Bank of America, N.A., as Syndication Agents, Wells Fargo Bank, National Association, as Documentation Agent, and Deutsche Bank AG New York Branch, as Collateral Agent (together with any successor collateral agent, the “Collateral
Agent”) and as Administrative Agent, have entered into an ABL Credit Agreement, dated as of June 10, 2015 (as amended, modified, restated and/or supplemented from time to time, the “Credit Agreement”), providing for
the making of Loans to the Borrowers, and the issuance of, and participation in, Letters of Credit for the account of the Borrowers, all as contemplated therein (the Lenders, each Issuing Lender, the Administrative Agent and the Collateral Agent are
herein called the “Lender Creditors”);
WHEREAS, the Company and/or one or more of its Subsidiaries have entered into, or
may at any time and from time to time on or after the Effective Date enter into, one or more Secured Hedging Agreements with one or more Lender Counterparties (the “Secured Hedging Creditors”);
WHEREAS, the Company and/or one or more of its Subsidiaries and any Lender (and/or one or more of its banking affiliates) designated to the
Administrative Agent in writing by the Company as a provider of Treasury Services (as defined below), including Deutsche Bank AG New York Branch who is hereby so designated (collectively, the “Treasury Services Creditors” and,
together with the Lender Creditors and the Secured Hedging Creditors, the “Secured Creditors”), have entered into, or in the future may enter into, arrangements to provide treasury, depositary or cash management services (including
without limitation, overnight overdraft services), credit, debit or store-value cards (including commercial cards (including so-called “purchase cards”, procurement cards or “p-cards”)), credit card processing services and/or
automated clearinghouse transfers of funds to the Company and such Subsidiaries (collectively, “Treasury Services,” and with any written agreement evidencing such arrangements, as amended, modified, supplemented, replaced or
refinanced from time to time, herein called a “Treasury Services Agreement”), where such Treasury Services Agreements may be evidenced by standard account terms of the respective Treasury Services Creditor;
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to Exhibit G-2
WHEREAS, each Guarantor (other than the Company) is a Wholly-Owned Domestic Subsidiary of the
Company;
WHEREAS, it is a condition precedent to (i) the making of Loans to the Borrowers, and the issuance of (and participation
in) Letters of Credit for the account of the Borrowers, in each case under the Credit Agreement, (ii) the Secured Hedging Creditors entering into Secured Hedging Agreements with the Company or its Subsidiaries and (iii) the extension of
the Treasury Services by Treasury Services Creditors, that each Guarantor shall have executed and delivered to the Administrative Agent this Guaranty; and
WHEREAS, each Guarantor will benefit from the incurrence of Loans by the Borrowers and the issuance of (and participation in) Letters of
Credit for the account of the Borrowers under the Credit Agreement and the entering into by the Company or its Subsidiaries of Secured Hedging Agreements with the Secured Hedging Creditors and the extension of Treasury Services to the Company and
its Subsidiaries by the Treasury Services Creditors and, accordingly, desires to execute this Guaranty in order to (i) satisfy the condition described in the preceding paragraph and (ii) induce (x) the Lenders to make Loans to the
Borrowers and issue (and/or participate in) Letters of Credit for the account of the Borrowers, (y) the Secured Hedging Creditors to enter into Secured Hedging Agreements with the Company or its Subsidiaries and (z) the Treasury Services
Creditors to provide Treasury Services pursuant to Treasury Services Agreements;
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to each Guarantor, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby makes the following representations and warranties to the Administrative Agent for the benefit of the Secured Creditors
and hereby covenants and agrees with each other Guarantor and the Administrative Agent for the benefit of the Secured Creditors as follows:
1. GUARANTY.
(a) Each Guarantor, jointly and severally, irrevocably, absolutely and unconditionally guarantees as a primary obligor and not merely as
surety:
(i) to the Lender Creditors the full and prompt payment when due (whether at the stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise) of (x) the principal of, premium, if any, and interest on the Notes issued by, and the Loans made to, the Borrowers under the Credit Agreement, and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit and (y) all other obligations (including, without limitation, obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrowers to the Lender Creditors under the Credit Agreement and each other Credit Document to which any Borrower is a party (including, without limitation, indemnities, Fees, expenses and interest thereon (including,
without limitation, in each case any interest, fees or expenses accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided for in the Credit Agreement, whether or not such interest, fees or
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 (all such principal, premium, interest, reimbursement obligations, Unpaid
Drawings, liabilities, indebtedness and obligations under this clause (i), except to the extent consisting of obligations, liabilities or indebtedness with respect to Secured Hedging Agreements and Treasury Services Agreements, being herein
collectively called the “Credit Document Obligations”);
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to Exhibit G-2
(ii) to each Secured Hedging Creditor the full and prompt payment when due (whether at the
stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of all obligations (including, without limitation, obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due), liabilities and indebtedness (including, without limitation, any interest, fees or expenses accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided for in the respective Secured
Hedging Agreements, whether or not such interest, fees or expenses are an allowed claim in any such proceeding), but excluding, with respect to any Guarantor, any Excluded Swap Obligations of such Guarantor, owing by any Borrower and each other
Guaranteed Party under each Secured Hedging Agreement to which any Borrower or other Guaranteed Party is a party, whether now in existence or hereafter arising (all such obligations, liabilities and indebtedness described in this clause
(ii) being herein collectively called the “Secured Hedging Obligations”); and
(iii) to each Treasury Services
Creditor the full and prompt payment when due (whether at the stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of all obligations, liabilities and indebtedness (including, without limitation, all interest,
fees or expenses accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided for in the respective Treasury Services Agreement, whether or not such interest, fees or expenses are an allowed
claim in any such proceeding) owing by any Borrower and each other Guaranteed Party to the Treasury Services Creditors with respect to Treasury Services, whether now in existence or hereafter arising in each case under any Treasury Services
Agreement to which any such Borrower or Guaranteed Party becomes a party (all such obligations, liabilities and indebtedness described in this clause (iii) being herein collectively called the “Treasury Services Obligations”
and, together with the Credit Document Obligations and the Secured Hedging Obligations, are herein collectively called the “Guaranteed Obligations”). For the avoidance of doubt, in no event shall the Guaranteed Obligations of any
Guarantor include any Excluded Swap Obligations of such Guarantor.
Each Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the Guaranteed Obligations against such Guarantor without proceeding against any other Guarantor, any Borrower or any other Guaranteed Party, or against any security for the Guaranteed
Obligations, or under any other guaranty covering all or a portion of the Guaranteed Obligations. This Guaranty is a guaranty of prompt payment and performance and not of collection. For purposes of this Guaranty, the term “Guarantor” as
applied to any Borrower or any other Guarantor shall refer to such Borrower or such other Guarantor as a guarantor of indebtedness incurred by another Guaranteed Party, and not indebtedness directly incurred by such Guarantor, in its capacity as
Borrower or otherwise.
The following capitalized terms used herein shall have the definitions specified below:
“Guaranteed Party” shall mean (x) each Borrower and (y) each other Subsidiary of the Company that is party to a
Secured Hedging Agreement or Treasury Service Agreement.
“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, together with the Administrative Agent’s, such Lender’s or such affiliate’s successors and
assigns, or, in respect of any Interest Rate Protection Agreement and/or Other Hedging Agreement entered into prior to the Closing Date, was the Administrative Agent, a Lender or an affiliate of the Administrative Agent or a Lender on the Closing
Date (with respect to this clause (b), even if the Administrative Agent or such Lender subsequently ceases to be the Administrative Agent or a
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to Exhibit G-2
Lender, as the case may be, under the Credit Agreement for any reason), 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.
“Qualified Keepwell Provider”: shall mean, in respect of any
Swap Obligation, each Guarantor that, at all times during the Swap Guarantee Eligibility Period, has total assets exceeding $10,000,000 or otherwise constitutes an “eligible contract participant” under the Commodity Exchange Act or any
regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” with respect to such Swap Obligation at such time by entering into a keepwell pursuant to section 1a(18)(A)(v)(II) of the
Commodity Exchange Act.
“Secured Debt Agreements” shall mean and include (i) the Credit Documents, (ii) the
Secured Hedging Agreements entered into with a Secured Hedging Creditor, and (iii) the Treasury Services Agreements entered into with a Treasury Services Creditor.
“Secured Hedging Agreement” shall mean each Interest Rate Protection Agreement and/or Other Hedging Agreements entered into
with a Lender Counterparty, provided that (i) other than with respect to Interest Protection Agreements or Other Hedging Agreements entered into prior to the Closing Date, such Interest Rate Protection Agreement and/or Other Hedging
Agreement expressly states that it constitutes a “Secured Hedging Agreement” for purposes of the Credit Agreement and the other Credit Documents and (ii) the Company and the other parties thereto shall have delivered to the Collateral
Agent a written notice specifying that such Interest Rate Protection Agreement and/or Other Hedging Agreement constitutes a “Secured Hedging Agreement” for purposes of the Credit Agreement and the other Credit Documents.
“Swap Guarantee Eligibility Period” shall mean, with respect to any Guarantor and the relevant Swap Obligation, the period
from and including the date on which the relevant guarantee (or grant of the relevant security interest, as applicable) becomes effective with respect to such Swap Obligation until the date on which such guarantee (or grant of the relevant security
interest, if applicable) is no longer in effect. For the avoidance of doubt, the Swap Guarantee Eligibility Period shall commence on the date of the execution of a Swap if the corresponding guarantee (or grant of security interest, as applicable) is
then in effect, otherwise it shall commence on the date of execution and delivery of the relevant guarantee (or grant of security interest, as applicable) unless the guarantee (or relevant collateral agreement or pledge documentation, as applicable)
specifies a subsequent effective date.
“Termination Date” shall mean the date upon which the Total Revolving Loan
Commitment under the Credit Agreement has been terminated, no Note is outstanding (and all Loans and Unpaid Drawings have been paid in full), all Letters of Credit have been terminated (or have been cash collateralized or backstopped by another
letter of credit, in either case on terms and pursuant to arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such cash collateral or backstop letter of
credit to be in a stated amount equal to at least 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time)), and all other Credit Document Obligations (other than indemnities and other contingent payment obligations
under the Credit Documents which are not then due and payable) then due and payable have been paid in full.
(b) Additionally, each
Guarantor, jointly and severally, unconditionally, absolutely and irrevocably, guarantees the payment of any and all Guaranteed Obligations (other than, for the avoidance of doubt, any Excluded Swap Obligations of any Guarantor) whether or not due
and payable by any Borrower or any other Guaranteed Party upon the occurrence, in respect of any Borrower or any other Guaranteed Party, of any of the events specified in Section 11.05 of the Credit Agreement, and unconditionally, absolutely
and irrevocably, jointly and severally, promises to pay such Guaranteed Obligations to the Secured Creditors, or order, on demand.
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(c) Keepwell. Each Qualified Keepwell Provider hereby jointly and severally absolutely,
unconditionally, and irrevocably undertakes to provide such funds or other support as may be needed by each other Credit Party for such Credit Party to qualify as an “eligible contract participant” under the Commodity Exchange Act or any
regulations promulgated thereunder at any time during the Swap Guarantee Eligibility Period in respect of any Swap Obligation (provided, however, that each Qualified Keepwell Provider shall only be liable under this Section 1(c)
for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 1(c), or otherwise under any relevant guarantee, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount). The obligations of such Qualified Keepwell Provider under this Section 1(c) shall remain in full force and effect until each Guarantor has been released from its obligations under this
Guaranty pursuant to Section 17. Each Qualified Keepwell Provider intends that this Section 1(c) constitute, and this Section 1(c) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of
each other Credit Party for all purposes of section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
2. LIABILITY OF GUARANTORS
ABSOLUTE.
The liability of each Guarantor hereunder is primary, absolute, joint and several, and unconditional and is exclusive and
independent of any security for or other guaranty of the indebtedness of the Company or any other Guaranteed Party whether executed by such Guarantor, any other Guarantor, any other guarantor or by any other party, and the liability of each
Guarantor hereunder shall not be affected or impaired by any circumstance or occurrence whatsoever, including, without limitation: (a) any direction as to application of payment by any Borrower, or any other Guaranteed Party or any other party,
(b) any other continuing or other guaranty, undertaking or maximum liability of a Guarantor or of any other party as to the Guaranteed Obligations, (c) any payment on or in reduction of any such other guaranty or undertaking, (d) any
dissolution, termination or increase, decrease or change in personnel by any Borrower or any other Guaranteed Party, (e) the failure of a Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this
Guaranty, (f) any payment made to any Secured Creditor on the indebtedness which any Secured Creditor repays any Borrower or any other Guaranteed Party pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (g) any action or inaction by the Secured Creditors as contemplated in Section 5
hereof or (h) any invalidity, rescission, irregularity or unenforceability of all or any part of the Guaranteed Obligations or of any security therefor.
3. OBLIGATIONS OF GUARANTORS INDEPENDENT.
The obligations of each Guarantor hereunder are independent of the obligations of any other Guarantor, any other guarantor, any Borrower or any
other Guaranteed Party, and a separate action or actions may be brought and prosecuted against each Guarantor whether or not action is brought against any other Guarantor, any other guarantor, any Borrower or any other Guaranteed Party and whether
or not any other Guarantor, any other guarantor, any Borrower or any other Guaranteed Party is joined in any such action or actions. Each Guarantor waives (to the fullest extent permitted by applicable law) the benefits of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by any Borrower or any other Guaranteed Party or other circumstance which operates to toll any statute of limitations as to any Borrower or any other Guaranteed Party shall
operate to toll the statute of limitations as to each Guarantor.
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4. WAIVERS BY GUARANTORS.
(a) Each Guarantor hereby waives (to the fullest extent permitted by applicable law) notice of acceptance of this Guaranty and notice of
the existence, creation or incurrence of any new or additional liability to which it may apply, and waives (to the fullest extent permitted by applicable law) promptness, diligence, presentment, demand of payment, demand for performance, protest,
notice of dishonor or nonpayment of any such liabilities, suit or taking of other action by the Administrative Agent or any other Secured Creditor against, and any other notice to, any party liable thereon (including such Guarantor, any other
Guarantor, any other guarantor, any Borrower or any other Guaranteed Party) and each Guarantor further hereby waives (to the fullest extent permitted by applicable law) any and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice or proof of reliance by any Secured Creditor upon this Guaranty, and the Guaranteed Obligations shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, modified,
supplemented or waived, in reliance upon this Guaranty.
(b) Each Guarantor waives any right (except as shall be required by applicable
law and cannot be waived) to require the Secured Creditors to: (i) proceed against any Borrower, any other Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party; (ii) proceed against or
exhaust any security held from any Borrower, any other Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any other remedy in the Secured Creditors’ power
whatsoever. Each Guarantor waives any defense based on or arising out of any defense of any Borrower, any other Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party other than the occurrence of
the Termination Date, including, without limitation, any defense based on or arising out of the disability of any Borrower, any other Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed Obligations or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower or any other Guaranteed Party other than the occurrence of the Termination Date. The Secured
Creditors may, at their election, upon the occurrence and during the continuance of an Event of Default, foreclose on any collateral serving as security held by the Administrative Agent, the Collateral Agent or the other Secured Creditors by one or
more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Secured Creditors may have against any
Borrower, any other Guaranteed Party or any other party, or any security, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Termination Date has occurred. Each Guarantor waives (to the
fullest extent permitted by applicable law) any defense arising out of any such election by the Secured Creditors, even though such election may operate to impair or extinguish any right of reimbursement, contribution, indemnification or subrogation
or other right or remedy of such Guarantor against any Borrower, any other Guaranteed Party, any other guarantor of the Guaranteed Obligations or any other party or any security.
(c) Each Guarantor has knowledge and assumes all responsibility for being and keeping itself informed of each Borrower’s, each other
Guaranteed Party’s and each other Guarantor’s financial condition, affairs and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks which
such Guarantor assumes and incurs hereunder, and has adequate means to obtain from each Borrower, each other Guaranteed Party and each other Guarantor on an ongoing basis information relating thereto and each Borrower’s, each other Guaranteed
Party’s and each other Guarantor’s ability to pay and perform its respective Guaranteed Obligations, and agrees to assume the responsibility to keep so informed for so long as such Guarantor is a party to this Guaranty. Each Guarantor
acknowledges and agrees that (x) the Secured Creditors shall have no obligation to investigate the financial condition or affairs of any Borrower, any other Guaranteed Party or any other Guarantor for the benefit of such Guarantor nor to advise
such Guarantor of any fact
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to Exhibit G-2
respecting, or any change in, the financial condition, assets or affairs of any Borrower, any other Guaranteed Party or any other Guarantor that might become known to any Secured Creditor at any
time, whether or not such Secured Creditor knows or believes or has reason to know or believe that any such fact or change is unknown to such Guarantor, or might (or does) increase the risk of such Guarantor as guarantor hereunder, or might (or
would) affect the willingness of such Guarantor to continue as a Guarantor hereunder and (y) the Secured Creditors shall have no duty to advise any Guarantor of information known to them regarding any of the aforementioned circumstances or
risks.
(d) Each Guarantor hereby acknowledges and agrees that no Secured Creditor nor any other Person shall be under any obligation
(a) to marshal any assets in favor of such Guarantor or in payment of any or all of the liabilities of any Guaranteed Party under the Secured Debt Agreements or the obligation of such Guarantor hereunder or (b) to pursue any other remedy
that such Guarantor may or may not be able to pursue itself any right to which such Guarantor hereby waives.
(e) Each Guarantor warrants
and agrees that each of the waivers set forth in Section 3 hereof and in this Section 4 is made with full knowledge of its significance and consequences and that if any of such waivers are determined to be contrary to any applicable law or
public policy, such waivers shall be effective only to the maximum extent permitted by applicable law.
5. RIGHTS OF SECURED
CREDITORS.
Any Secured Creditor may (except as shall be required by applicable law and cannot be waived) at any time and from time to
time without the consent of, or notice to, any Guarantor, without incurring responsibility to such Guarantor, without impairing or releasing the obligations or liabilities of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or change, increase or extend the time of
payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations (including, without limitation, any increase or decrease in the rate of interest thereon or the principal amount thereof), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty herein made shall apply to the Guaranteed Obligations as so changed, extended, increased, accelerated, renewed or altered;
(b) take and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, surrender, impair,
realize upon or otherwise deal with in any manner and in any order any property or other collateral by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;
(c)
exercise or refrain from exercising any rights against any Borrower, any other Guaranteed Party, any other Credit Party, any Subsidiary thereof, any other guarantor of any Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors, other guarantors, any Borrower, any other Guaranteed Party or
other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Borrower or any other Guaranteed
Party to creditors of any Borrower or such other Guaranteed Party other than the Secured Creditors;
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to Exhibit G-2
(f) apply any sums by whomsoever paid or howsoever realized to any liability
or liabilities of any Borrower or any other Guaranteed Party to the Secured Creditors regardless of what liabilities of such Borrower or such other Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default under, any of the Secured Debt Agreements or any of the
instruments or agreements referred to therein, or otherwise amend, modify or supplement any of the Secured Debt Agreements or any of such other instruments or agreements;
(h) act or fail to act in any manner which may deprive such Guarantor of its right to subrogation against any Borrower or any
other Guaranteed Party to recover full indemnity for any payments made pursuant to this Guaranty; and/or
(i) take any
other action or omit to take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge of such Guarantor from its liabilities under this Guaranty (including, without limitation,
any action or omission whatsoever that might otherwise vary the risk of such Guarantor or constitute a legal or equitable defense to or discharge of the liabilities of a guarantor or surety or that might otherwise limit recourse against such
Guarantor).
No invalidity, illegality, irregularity or unenforceability of all or any part of the Guaranteed Obligations, the Secured Debt Agreements or
any other agreement or instrument relating to the Guaranteed Obligations or of any security or guarantee therefor shall affect, impair or be a defense to this Guaranty, and this Guaranty shall be primary, absolute and unconditional notwithstanding
the occurrence of any event or the existence of any other circumstances which might constitute a legal or equitable discharge of a surety or guarantor except the occurrence of the Termination Date.
6. CONTINUING GUARANTY.
This Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any Secured Creditor in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein expressly specified are cumulative and not exclusive of any rights or remedies which any
Secured Creditor would otherwise have. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Secured
Creditor to any other or further action in any circumstances without notice or demand. It is not necessary for any Secured Creditor to inquire into the capacity or powers of any Borrower or any other Guaranteed Party or the officers, directors,
partners or agents acting or purporting to act on its or their behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
7. SUBORDINATION OF INDEBTEDNESS HELD BY GUARANTORS.
Any indebtedness of any Borrower or any other Guaranteed Party now or hereafter held by any Guarantor is hereby subordinated to the Guaranteed
Obligations of such Borrower or such other
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to Exhibit G-2
Guaranteed Party to the Secured Creditors; and the indebtedness of such Borrower or such other Guaranteed Party to any Guarantor, if the Administrative Agent or the Collateral Agent, after an
Event of Default has occurred and is continuing, so requests, to the extent such indebtedness constitutes Collateral shall be collected, enforced and received by such Guarantor as trustee for the Secured Creditors and be paid over to the Secured
Creditors on account of the Guaranteed Obligations of such Borrower or such other Guaranteed Party to the Secured Creditors, but without affecting or impairing in any manner the liability of such Guarantor under the other provisions of this
Guaranty. Without limiting the generality of the foregoing, each Guarantor hereby agrees with the Secured Creditors that it will not exercise any right of subrogation which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until the Termination Date; provided, that if any amount shall be paid to such Guarantor on account of such subrogation rights at any time prior to the Termination Date,
such amount shall be held in trust for the benefit of the Secured Creditors and shall promptly be paid to the Secured Creditors to be credited and applied upon the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of
the Credit Documents or, if the Credit Documents do not provide for the application of such amount, to be held by the Secured Creditors as collateral security for any Guaranteed Obligations thereafter existing.
8. GUARANTY ENFORCEABLE BY ADMINISTRATIVE AGENT OR COLLATERAL AGENT.
Notwithstanding anything to the contrary contained elsewhere in this Guaranty, the Secured Creditors agree (by their acceptance of the benefits
of this Guaranty) that this Guaranty may be enforced only by the action of the Administrative Agent or the Collateral Agent, in each case acting upon the instructions of the Required Lenders and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Guaranty or to realize upon the security to be granted by the Security Documents, it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent or the
Collateral Agent, as the case may be, for the benefit of the Secured Creditors upon the terms of this Guaranty and the Security Documents. The Secured Creditors further agree that this Guaranty may not be enforced against any director, officer,
employee, partner, member or stockholder of any Guarantor (except to the extent such partner, member or stockholder is also a Guarantor hereunder). It is understood and agreed that the agreement in this Section 8 is among and solely for the
benefit of the Secured Creditors and that, if the Required Lenders so agree (without requiring the consent of any Guarantor), this Guaranty may be directly enforced by any Secured Creditor.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GUARANTORS.
In order to induce the Lenders to make Loans to, and issue Letters of Credit for the account of, the Borrowers pursuant to the Credit
Agreement, and in order to induce the Secured Hedging Creditors to execute, deliver and perform the Secured Hedging Agreements to which they are a party and in order to induce the Treasury Services Creditors to execute, deliver and perform the
Treasury Services Agreements to which they are a party, each Guarantor represents and warrants that:
(a) such Guarantor
(i) is a duly organized and validly existing Business, (ii) has the Business power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) is in good
standing under the laws of the jurisdiction of its organization and is duly qualified and is authorized to do business and is in good standing in each jurisdiction where the nature of its business requires such qualification, except for failures to
be in good standing or so qualified which, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
(b) such Guarantor has the Business power and authority to execute, deliver and perform the terms and provisions of each of the
Credit Documents to which it is a party and has taken all necessary Business action to authorize the execution, delivery and performance by it of each of the Credit Documents to which it is a party;
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to Exhibit G-2
(c) such Guarantor has duly executed and delivered each of the Credit
Documents to which it is a party, and each such Credit Documents to which it is a party constitutes the legal, valid and binding obligation of such Guarantor enforceable in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(d) neither the execution, delivery or performance by such Guarantor of the Credit Documents to which it is a party, nor
compliance by it with the terms and provisions thereof, will (i) contravene any provision of any applicable law, statute, rule or regulation or any applicable order, writ, injunction or decree of any court or Governmental Authority,
(ii) conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of any Guarantor pursuant to the terms of any material indenture, mortgage, deed of trust, credit agreement, or loan agreement, or any other material agreement, contract or instrument, in
each case, to which any Guarantor or any of its Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject or (iii) violate any provision of the certificate or articles of incorporation,
by-laws, partnership agreement or limited liability company agreement (or equivalent organizational documents), as applicable, of such Guarantor or any of its respective Subsidiaries;
(e) no order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for
(x) those that have otherwise been obtained or made prior to the Effective Date and which remain in full force and effect on the Effective Date and (y) filings which are necessary to perfect the security interests created or intended to be
created under the Security Documents), or exemption by, any Governmental Authority is required to be obtained, or made by, or on behalf of the Guarantor to authorize, or is required to be obtained, or made by, or on behalf of the Guarantor in
connection with, (i) the execution, delivery and performance by such Guarantor of the Credit Documents to which such Guarantor is a party or (ii) the legality, validity, binding effect or enforceability against such Guarantor of any Credit
Document to which such Guarantor is a party; and
(f) there are no actions, suits or proceedings pending or, to the
knowledge of any Responsible Officer of such Guarantor, threatened in writing (i) that purports to affect the legality, validity or enforceability of any Credit Document to which such Guarantor is a party or (ii) with respect to such
Guarantor or any of its Subsidiaries that, either individually or in the aggregate, could reasonably be expected to have, a Material Adverse Effect.
Until the Termination Date, such Guarantor will comply, and will cause each of its Subsidiaries to comply, with all of the applicable
provisions, covenants and agreements contained in Sections 9 and 10 of the Credit Agreement which are expressly applicable to such Guarantor and/or such Guarantor’s Subsidiaries, and will take, or will refrain from taking, as the case may be,
all actions that are necessary to be taken or not taken so that no violation of any provision, covenant or agreement contained in Sections 9 and 10 of the Credit Agreement which are expressly applicable to such Guarantor and/or such Guarantor’s
Subsidiaries, and so that no Default or Event of Default, is caused by the actions of such Guarantor or any of its Subsidiaries.
Page 11
to Exhibit G-2
10. EXPENSES.
The Guarantors hereby jointly and severally agree to pay all reasonable and documented out-of-pocket costs and expenses of the Collateral
Agent, the Administrative Agent and each other Lender Creditor following the occurrence and during the continuance of an Event of Default in connection with the enforcement of this Guaranty and the protection of the Secured Creditors’ rights
hereunder and any amendment, waiver or consent relating hereto (including, in each case, without limitation, the reasonable and invoiced fees and disbursements of consultants and counsel employed by the Collateral Agent, the Administrative Agent and
each other Lender Creditor (but limited, in the case of attorneys’ fees and disbursements, to one counsel to the Lender Creditors, taken as a whole, one local counsel for the Collateral Agent and Administrative Agent and the Lender Creditors,
taken as a whole, in each relevant jurisdiction, and, solely in the case of an actual or perceived conflict of interests, one additional counsel in each relevant jurisdiction to each group of affected Lender Creditors similarly situated, taken as a
whole)).
11. BENEFIT AND BINDING EFFECT.
This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the benefit of the Secured Creditors and
their successors and assigns.
12. AMENDMENTS; WAIVERS.
Neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby (it being understood that the addition or release of any Guarantor hereunder shall not constitute a change, waiver, discharge or termination affecting any Guarantor other than the Guarantor so added or released)
and with the written consent of the Required Lenders (or, to the extent required by Section 13.12 of the Credit Agreement, with the written consent of each Lender) at all times prior to the Termination Date.
13. SET OFF.
In addition
to any rights now or hereafter granted under applicable law (including, without limitation, Section 151 of the New York Debtor and Creditor Law) and not by way of limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, each Secured Creditor, with the consent of the Administrative Agent, is hereby authorized, at any time or from time to time, without notice to any Guarantor or to any other Person, any such notice being expressly waived (to the
extent permitted by applicable law), to set off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by such Secured Creditor to or for the credit or the account of such
Guarantor, against and on account of the obligations and liabilities of such Guarantor to such Secured Creditor under this Guaranty, irrespective of whether or not such Secured Creditor shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be contingent or unmatured; provided that, for the avoidance of doubt, no amounts received from, or set off with respect to, any Guarantor shall be applied to any Excluded
Swap Obligations of such Guarantor. Each Secured Creditor (by its acceptance of the benefits hereof) acknowledges and agrees that the provisions of this Section 13 are subject to the sharing provisions set forth in Section 13.06 of the
Credit Agreement.
14. NOTICE.
Except as otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be
sent or delivered by mail, email, telecopy
Page 12
to Exhibit G-2
or courier service and all such notices and communications shall, when mailed, emailed, telecopied or sent by courier, be effective when received by the Administrative Agent or such Guarantor, as
the case may be. All notices and other communications shall be in writing and addressed to such party at (i) in the case of any Lender Creditor, as provided in the Credit Agreement, (ii) in the case of any Guarantor, at its address set
forth opposite its signature page below, and (iii) in the case of any Secured Hedging Creditor or any Treasury Services Creditor, at such address as such Secured Hedging Creditor or such Treasury Services Creditor shall have specified in
writing to the Company; or in any case at such other address as any of the Persons listed above may hereafter notify the others in writing.
15. REINSTATEMENT.
Notwithstanding anything to the contrary contained herein, if any claim is ever made upon any Secured Creditor for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including, without limitation, any Borrower or any other Guaranteed Party), then and in
such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon such Guarantor, notwithstanding any revocation hereof or the cancellation of any Note, any other Credit Document, any Secured
Hedging Agreement, any Treasury Services Agreement or any other instrument evidencing any liability of any Borrower or any other Guaranteed Party, and such Guarantor shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
16. CONSENT TO
JURISDICTION; SERVICE OF PROCESS; AND WAIVER OF TRIAL BY JURY.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED
CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW 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). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT TO WHICH ANY GUARANTOR IS A PARTY SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE LOCATED WITHIN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH GUARANTOR, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH GUARANTOR. EACH GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH GUARANTOR AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
Page 13
to Exhibit G-2
AFTER SUCH MAILING. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN, HOWEVER, SHALL AFFECT THE RIGHT OF ANY OF THE SECURED CREDITORS TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GUARANTOR IN ANY OTHER JURISDICTION.
(b) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE
THAT ARE LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN, AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
17. RELEASE OF LIABILITY OF GUARANTOR.
In the event that all of the Equity Interests of one or more Guarantors (other than a Borrower) is sold or otherwise disposed of in a
transaction not prohibited by the Credit Agreement or liquidated in compliance with the requirements of Section 10.02 of the Credit Agreement (or such sale, other disposition or liquidation has been approved in writing by the Required Lenders
(or all the Lenders if required by Section 13.12 of the Credit Agreement)), to the extent applicable, such Guarantor shall, or upon consummation of such sale or other disposition (except to the extent that such sale or disposition is to the
Company or another Subsidiary thereof), as applicable, shall be released from this Guaranty automatically and without further action and this Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no further force or effect (it
being understood and agreed that the sale of one or more Persons that own, directly or indirectly, all of the Equity Interests of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes of this Section 17). Subject to
Section 15, on the Termination Date this Guaranty shall terminate (provided that all indemnities set forth herein shall survive such termination) and each Guarantor shall be released from its obligations under this Guaranty.
18. CONTRIBUTION.
At any
time a payment in respect of the Guaranteed Obligations is made under this Guaranty, the right of contribution of each Guarantor against each other Guarantor shall be determined as provided in the immediately following sentence, with the right of
contribution of each Guarantor to be revised and restated as of each date on which a payment (a “Relevant Payment”) is made on the Guaranteed Obligations under this Guaranty. At any time that a Relevant Payment is made by a
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to Exhibit G-2
Guarantor that results in the aggregate payments made by such Guarantor in respect of the Guaranteed Obligations to and including the date of the Relevant Payment exceeding such Guarantor’s
Contribution Percentage (as defined below) of the aggregate payments made by all Guarantors in respect of the Guaranteed Obligations to and including the date of the Relevant Payment (such excess, the “Aggregate Excess Amount”),
each such Guarantor shall have a right of contribution against each other Guarantor who has made payments in respect of the Guaranteed Obligations to and including the date of the Relevant Payment in an aggregate amount less than such other
Guarantor’s Contribution Percentage of the aggregate payments made to and including the date of the Relevant Payment by all Guarantors in respect of the Guaranteed Obligations (the aggregate amount of such deficit, the “Aggregate
Deficit Amount”) in an amount equal to (x) a fraction the numerator of which is the Aggregate Excess Amount of such Guarantor and the denominator of which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the
Aggregate Deficit Amount of such other Guarantor. A Guarantor’s right of contribution pursuant to the preceding sentences shall arise at the time of each computation, subject to adjustment to the time of each computation; provided that
no Guarantor may take any action to enforce such right until the Termination Date, it being expressly recognized and agreed by all parties hereto that any Guarantor’s right of contribution arising pursuant to this Section 18 against any
other Guarantor shall be expressly junior and subordinate to such other Guarantor’s obligations and liabilities in respect of the Guaranteed Obligations and any other obligations owing under this Guaranty. As used in this Section 18:
(i) each Guarantor’s “Contribution Percentage” shall mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net Worth of all
Guarantors; (ii) the “Adjusted Net Worth” of each Guarantor shall mean the greater of (x) the Net Worth (as defined below) of such Guarantor and (y) zero; and (iii) the “Net Worth” of each
Guarantor shall mean the amount by which the fair saleable value of such Guarantor’s assets on the date of any Relevant Payment exceeds its existing debts and other liabilities (including contingent liabilities, but without giving effect to any
Guaranteed Obligations arising under this Guaranty or any guaranteed obligations arising under any guaranty of any Permitted Additional Indebtedness) on such date. Notwithstanding anything to the contrary contained above, any Guarantor that is
released from this Guaranty pursuant to Section 17 hereof shall thereafter have no contribution obligations, or rights, pursuant to this Section 18, and at the time of any such release, if the released Guarantor had an Aggregate Excess
Amount or an Aggregate Deficit Amount, same shall be deemed reduced to $0, and the contribution rights and obligations of the remaining Guarantors shall be recalculated on the respective date of release (as otherwise provided above) based on the
payments made hereunder by the remaining Guarantors. All parties hereto recognize and agree that, except for any right of contribution arising pursuant to this Section 18, each Guarantor who makes any payment in respect of the Guaranteed
Obligations shall have no right of contribution or subrogation against any other Guarantor in respect of such payment until the Termination Date. Each of the Guarantors recognizes and acknowledges that the rights to contribution arising hereunder
shall constitute an asset in favor of the party entitled to such contribution. In this connection, each Guarantor has the right to waive its contribution right against any Guarantor to the extent that after giving effect to such waiver such
Guarantor would remain solvent, in the determination of the Required Lenders.
19. LIMITATION ON GUARANTEED OBLIGATIONS.
Each Guarantor and each Secured Creditor (by its acceptance of the benefits of this Guaranty) hereby confirms that it is its intention that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any similar Federal or state law. To effectuate the foregoing intention, each Guarantor and each Secured
Creditor (by its acceptance of the benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed Obligations guaranteed by such Guarantor shall be limited to such amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such Guarantor that are relevant under such laws and after giving effect to any rights to contribution pursuant to any agreement providing
Page 15
to Exhibit G-2
for an equitable contribution among such Guarantor and the other Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of such maximum amount not constituting a fraudulent
transfer or conveyance.
20. COUNTERPARTS.
This Guaranty may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Company and the Administrative Agent. Delivery of
an executed counterpart hereof by facsimile or electronic transmission shall be as effective as delivery of an original executed counterpart hereof.
21. PAYMENTS.
All
payments made by any Guarantor hereunder will be made without setoff, counterclaim or other defense and on the same basis as payments are made by the applicable Borrowers under Sections 5.03 and 5.04 of the Credit Agreement.
22. Judgment Currency.
(a) The Guarantors’ obligations hereunder to make payments in the Obligation Currency shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Administrative Agent or the other
Secured Creditors of the full amount of the Obligation Currency expressed to be payable to the Administrative Agent or the other Secured Creditors under this Guaranty. If for the purpose of obtaining or enforcing judgment against any Guarantor in
any court or in any jurisdiction, it becomes necessary to convert into or from the Judgment Currency an amount due in the Obligation Currency, the conversion shall be made, at the rate of exchange (as quoted by the Administrative Agent or if the
Administrative Agent does not quote a rate of exchange on such currency, by a known dealer in such currency designated by the Administrative Agent) determined, in each case, as of the Judgment Currency Conversion Date.
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, each Guarantor covenants and agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at
the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate or exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any rate of exchange for this Section 22, such
amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
23. ADDITIONAL
GUARANTORS.
It is understood and agreed that any Wholly-Owned Domestic Subsidiary of the Company that is required to execute a
counterpart of this Guaranty after the date hereof pursuant to the Credit Agreement shall become a Guarantor hereunder by (x) executing and delivering a counterpart hereof, or a Joinder Agreement and delivering same to the Administrative Agent
and (y) taking all actions
Page 16
to Exhibit G-2
as specified in this Guaranty as would have been taken by such Guarantor had it been an original party to this Guaranty, in each case with all documents required above to be delivered to the
Administrative Agent and actions required to be taken above to be taken to the reasonable satisfaction of the Administrative Agent.
24.
HEADINGS DESCRIPTIVE.
The headings of the several Sections of this Guaranty are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this Guaranty.
25. INTERCREDITOR AGREEMENT.
This Guaranty is subject to the Intercreditor Agreement at any time such Intercreditor Agreement is in effect. In the event of a conflict between the terms of
this Guaranty and the Intercreditor Agreement, the Intercreditor Agreement shall control.
* * *
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered as of
the date first above written.
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GUARANTORS: |
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TESLA MOTORS, INC. |
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Signature Page to Tesla U.S. Guaranty
Accepted and Agreed to:
DEUSTCHE BANK AG NEW YORK BRANCH,
as Administrative Agent
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Signature Page to Tesla U.S. Guaranty
EXHIBIT I-1
FORM OF DUTCH INVENTORY SECURITY AGREEMENT
[Provided under Separate Cover]
SECURITY AGREEMENT
(INVENTORY)
DATED 10 JUNE
2015
between
TESLA
MOTORS NETHERLANDS B.V.
as Pledgor
and
DEUTSCHE BANK AG NEW YORK
BRANCH
as Pledgee
security agreement
(inventory)
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| TABLE OF CONTENTS |
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| 1 |
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DEFINITIONS AND INTERPRETATION |
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CREATION OF SECURITY |
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REPRESENTATIONS AND WARRANTIES |
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UNDERTAKINGS |
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ENFORCEMENT |
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FURTHER ASSURANCES, POWER OF ATTORNEY AND SUBORDINATION |
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TERMINATION |
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ASSIGNMENT |
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NOTICES |
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MISCELLANEOUS |
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ACCEPTANCE |
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GOVERNING LAW AND JURISDICTION |
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SCHEDULE 1
Inventory
SCHEDULE 2
form of supplemental security agreement
security agreement
(inventory)
ii
THIS SECURITY AGREEMENT is dated 10 June 2015 and made between:
| (1) |
TESLA MOTORS NETHERLANDS B.V., a private company with limited liability (besloten vennootschap), incorporated and existing under Dutch law, having its official seat (statutaire zetel) in Amsterdam,
the Netherlands and registered with the trade register of the chamber of commerce under number 52601196 (the Pledgor); and |
| (2) |
DEUTSCHE BANK AG NEW YORK BRANCH (as Collateral Agent and as sole creditor under the Dutch Parallel Debt, the Pledgee). |
IT IS AGREED as follows:
| 1 |
DEFINITIONS AND INTERPRETATION |
| 1.1.1 |
Capitalised terms used but not defined in this Agreement shall have the meaning given thereto in the Credit Agreement. |
Agreement means this security agreement.
Credit Agreement means the ABL Credit Agreement, dated as of 10 June 2015, among Tesla Motors, Inc., (the Company, 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), the Pledgor (together with each other Wholly-Owned Dutch Subsidiary of
the Pledgor 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), JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA,
Morgan Stanley Senior Funding Inc. and Bank of America, N.A., as Syndication Agents, Wells Fargo Bank, National Association, as Documentation Agent, and the Pledgee as administrative agent (in such capacity, together with any successor
administrative agent, the Administrative Agent) and as collateral agent (in such capacity, together with any successor collateral agent, the Collateral Agent).
Enforcement Event means a default by a Dutch Credit Party in the performance of the Secured Obligations (whether in whole or in part)
provided that such default constitutes an Event of Default which is continuing and which has resulted in the Pledgee exercising its rights under Section 11 of the Credit Agreement.
Inventory means any and all present and future inventory, goods and merchandise, to be furnished under any contract of service or held
for sale or lease, all finished goods, returned goods and materials and supplies of any kind, nature or description which are or might be used or consumed in its business or used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise and other personal property owned by the Pledgor, located in the Netherlands or in transit to the Netherlands, including but not limited to any Inventory held on the locations listed in
Schedule 1 (Inventory).
Landlord means any custodian, landlord or warehouseman listed in Schedule 1 (Inventory) or any
other custodian, landlord or warehouseman approved by the Pledgee from time to time.
security agreement
(inventory)
3
Party means a party to this Agreement.
Permitted Security means any Permitted Liens as defined in the Credit Agreement.
Right of Pledge means a right of pledge created by this Agreement in accordance with Clause 2 (Creation of security).
Secured Obligations means all present and future liabilities and obligations consisting of monetary payment obligations (vorderingen
tot voldoening van een geldsom) of each Dutch Credit Party to the Pledgee, at any time, both actual and contingent and whether incurred solely or jointly or as principal, surety or in any other capacity whether for principal, interest, costs or
otherwise under or in connection with this Agreement, the Dutch Guaranty and the Dutch Parallel Debt (and if the Right of Pledge cannot validly secure the Dutch Parallel Debt, the Dutch Corresponding Debt itself shall be the Secured Obligations).
Supplemental Security Agreement means a supplemental security agreement substantially in the form as set out in
Schedule 2 (Form of Supplemental Security Agreement).
| 1.2.1 |
Unless a contrary indication appears, any reference in this Agreement to: |
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(a) |
a Clause or a Schedule shall, subject to any contrary indication, be construed as a reference to a clause or a schedule of this Agreement; |
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(b) |
this Agreement, the Credit Agreement, a Credit Document or any other agreement or instrument includes all amendments, supplements, novations, restatements or re-enactments (without prejudice to any
prohibition thereto) however fundamental and of whatsoever nature thereunder and includes without limitation (i) any increase or reduction in any amount available under the Credit Agreement or any other Credit Document (as amended,
supplemented, novated, restated or re-enacted) or any alteration of or addition to the purpose for which any such amount, or increased or reduced amount may be used, (ii) any facility provided in substitution of or in addition to the facilities
originally made available thereunder, (iii) any rescheduling of the indebtedness incurred thereunder whether in isolation or in connection with any of the foregoing, and (iv) any combination of the foregoing, and the Secured Obligations
include all of the foregoing; |
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(c) |
person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, partnership or other entity (whether or not having separate legal personality) or two
or more of the foregoing; |
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(d) |
the Pledgee, the Pledgor or any other person includes its successors in title, permitted assigns and permitted transferees; and |
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(e) |
a provision of law is a reference to that provision as amended or re-enacted. |
| 1.2.2 |
Clause and Schedule headings are for ease of reference only. Schedules form an integral part of this Agreement. |
security agreement
(inventory)
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| 1.2.3 |
An Enforcement Event shall constitute a verzuim (as meant in Section 3:248 (1) of the Dutch Civil Code) in the performance of the Secured Obligations or any part thereof, without summons or notice of
default (aanmaning of ingebrekestelling) being sent or required. |
| 2.1.1 |
The Pledgor agrees with the Pledgee to grant and grants in favour of the Pledgee, to the extent necessary in advance (bij voorbaat), a right of pledge (pandrecht) over each of its Inventory as security for
the Secured Obligations. |
| 2.1.2 |
To the extent the Inventory consists of Inventory which is not yet subject to a Right of Pledge because they were located outside the Netherlands at the time they were purported to have been pledged under this
Agreement, a non-possessory right of pledge (bezitloos pandrecht) pledge is granted over such Inventory in favour of the Pledgee under the condition precedent that such Inventory is located in the Netherlands. |
| 2.2 |
Maintenance – Supplemental Security Agreement |
In respect of Inventory not pledged
pursuant to Clause 2.1 or pursuant to any Supplemental Security Agreement, the Pledgor undertakes to grant to the Pledgee (i) on the last Business Day of each calendar month or, if a Borrowing Base Certificate is submitted weekly in accordance
with Section 9.01 (h) of the Credit Agreement, on the last Business Day of each week (provided that, subject to clause (ii) below, no more than one Supplemental Security Agreement shall be required in a calendar month or week, if
applicable), or (ii) following the continuance of a Dominion Period once every Business Day (or with such other frequency as the Pledgee may in its discretion acting reasonably designate in writing to the Pledgor) by means of a Supplemental
Security Agreement a first priority non-possessory right of pledge (bezitloos pandrecht) over each of its Inventory as security for the Secured Obligations. The Pledgee appoints the Pledgor as its attorney to accept on behalf of the Pledgee
any right of pledge envisaged to be created under any Supplemental Security Agreement, which appointment also applies to any situation where the Pledgor acts as the Pledgee’s counterparty or as a representative of the Pledgee’s
counterparty.
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Perfection – registration |
The Pledgor shall within 3 Business Days upon the
execution of this Agreement or any Supplemental Security Agreement offer this Agreement or such Supplemental Security Agreement for registration with the Dutch tax authorities. The Pledgor shall as soon as possible thereafter provide the Pledgee
(a) with documentation evidencing that this Agreement or any Supplemental Security Agreement has been offered for registration with the Dutch tax authorities and (b) upon receipt of a registered copy of this Agreement or any Supplemental
Security Agreement, with such registered copy.
| 2.4 |
Authority to control the Inventory |
The Pledgee may bring the Inventory under its
control or the control of a third party and, in connection therewith and subject to any applicable lease agreement with a Landlord, enter upon any premises where the Inventory is located and remove the Inventory or have the same delivered by the
Pledgor to such place as the Pledgee may designate if an Enforcement Event has occurred.
security agreement
(inventory)
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| 3 |
REPRESENTATIONS AND WARRANTIES |
| 3.1.1 |
The Pledgor makes the representations and warranties in this Clause 3 in respect of the Inventory existing on the date the representations or warranties are made. |
| 3.1.2 |
On the date of this Agreement and on each date the Pledgor acquires title to any Inventory: |
| |
(a) |
save for Permitted Security, each Right of Pledge is a first ranking right of pledge (pandrecht eerste in rang); |
| |
(b) |
save for Permitted Security, its Inventory has not been pledged, made subject to a limited right (beperkt recht) or otherwise encumbered (in advance (bij voorbaat)) to any person; |
| |
(c) |
it is entitled (beschikkingsbevoegd) to pledge its Inventory; |
| |
(d) |
its Inventory may be pledged; and |
| |
(e) |
its Inventory is not subject to any attachment. |
The undertakings in this Clause 4 remain in force from the date of this
Agreement until each Right of Pledge is terminated in accordance with Clause 7 (Termination).
| 4.2.1 |
Unless permitted under the Credit Agreement, without the prior written consent of the Pledgee, no Pledgor shall: |
| |
(a) |
pledge, make subject to a limited right (beperkt recht) or otherwise encumber the Inventory; |
| |
(b) |
waive any accessory rights (afhankelijke rechten) or ancillary rights (nevenrechten) attached to the Inventory; |
| |
(c) |
agree with a court composition or an out-of-court composition (gerechtelijk of buitengerechtelijk akkoord) or enter into any settlement agreement in respect of the Inventory; or |
| |
(d) |
perform any act which adversely affects or may adversely affect the Inventory or any Right of Pledge, |
provided that a Pledgor may use and dispose of the Inventory (free of the Right of Pledge in accordance with Clause 7.1.2 of this Agreement) in
the ordinary course of business and at arm’s length terms until the occurrence of an Event of Default which is continuing and the Pledgee has notified the Pledgor that it is exercising its rights and remedies in respect thereof.
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| 4.2.2 |
To the extent that a supplier of Inventory has made the transfer of title conditional upon fulfilment of an obligation by the Pledgor, the Pledgor shall fulfil that obligation properly and with due expedience in
accordance with the agreements with such suppliers. |
| 4.2.3 |
The Pledgor shall at all times maintain insurance, at the Pledgor’s own expense to the extent and in the manner provided in the Credit Agreement. The Pledgor assumes all liability and responsibility in connection
with the Inventory acquired by it and the liability of the Pledgor to pay the Secured Obligations shall in no way be affected or diminished by reason of the fact that such Inventory may be lost, destroyed, stolen, damaged or for any reason
whatsoever unavailable to the Pledgor. |
| 4.2.4 |
The Pledgor shall arrange (or shall use reasonable efforts to ensure the Landlord shall arrange) for suitable storage of the Inventory and ensure that the Inventory is identified by the Pledgor or any other person in
charge of storage as belonging to the Pledgor and stored separate from Inventory belonging to other persons. |
| 4.2.5 |
The Pledgor shall pay all liabilities, fees, costs and expenses resulting from the involvement of and/or the services provided by the Landlord in connection with the Inventory promptly. The Pledgee shall be entitled to
pay all such liabilities, fees, costs and expenses on behalf of a Pledgor to the Landlord. The Pledgor shall indemnify the Pledgee on first demand for any and all payments made by the Pledgee on behalf of the Pledgor to the Landlord.
|
| 4.3.1 |
Subject to the relevant provisions of the Credit Agreement, the Pledgor shall permit the Pledgee to visit and inspect its properties, to conduct at the Pledgor’s premises field examinations of the Pledgor’s
assets, liabilities, books and records, including examining and making extracts from its books and records and environmental assessment reports and to discuss its affairs, finances and condition with its officers and independent accountants upon
reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as the Pledgee may reasonably request. The Pledgor acknowledges that the Pledgee, after exercising its rights of inspection, may prepare and distribute
to the Lenders certain Reports pertaining to the Pledgor’s assets for internal use by the Pledgee and the Lenders. |
| 4.3.2 |
The Pledgor shall promptly notify in writing, at its own cost, the existence of this Agreement and each Right of Pledge to any court process server (deurwaarder), bankruptcy trustee (curator),
administrator (bewindvoerder) or similar officer in any jurisdiction or to any other person claiming to have a right to any Inventory, and shall promptly send to the Pledgee a copy of the relevant correspondence. |
Upon the occurrence of an Enforcement Event, the Pledgee shall have the
right to enforce any Right of Pledge in accordance with Dutch law and any other applicable law and may take all (legal) steps and measures which it deems necessary or desirable for that purpose.
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| 5.2.1 |
The Pledgee shall not be obliged to give notice of a sale of the Inventory to the Pledgor, debtors, holders of a limited right (beperkt recht) or persons who have made an attachment (beslag) on the
Inventory (as provided in Sections 3:249 and 3:252 of the Dutch Civil Code). |
| 5.2.2 |
The Pledgor waives its right to make a request to the court to determine that the Inventory shall be sold in a manner deviating from the provisions of Section 3:250 of the Dutch Civil Code (as provided in paragraph
1 of Section 3:251 of the Dutch Civil Code). |
| 5.2.3 |
The Pledgor waives its right to demand that the Pledgee: |
| |
(a) |
shall first enforce any security granted by any other person, pursuant to Section 3:234 of the Dutch Civil Code; |
| |
(b) |
shall first proceed against or claim payment from any other person or enforce any guarantee, before enforcing any Right of Pledge; and |
| |
(c) |
pays for costs which the Pledgor has made in respect of the Inventory pursuant to Section 3:233 (2) of the Dutch Civil Code. |
| 5.2.4 |
The Pledgor waives its right (a) to set-off (verrekenen) its claims (if any) against the Pledgee under or in connection with this Agreement against the Secured Obligations and (b) if it has granted
security for any other person’s obligations, to invoke the suspension or the termination of its liability for any Secured Obligations pursuant to Section 6:139 of the Dutch Civil Code. |
| 5.3 |
Application of monies |
Subject to the mandatory provisions of Dutch law on enforcement,
all monies received or realised by the Pledgee in connection with the enforcement of any Right of Pledge following an Enforcement Event shall be applied by the Pledgee in accordance with the application of proceeds waterfall set forth in
Section 5.4 of the Dutch General Security Agreement.
| 6 |
FURTHER ASSURANCES, POWER OF ATTORNEY AND SUBORDINATION |
| 6.1.1 |
The Pledgee is entitled to present this Agreement and any other document pursuant to this Agreement for registration to any office, registrar or governmental body (including the Dutch tax authorities) in any
jurisdiction which is sufficiently material for purposes of the protection of the rights of the Pledgee under the Credit Agreement. |
| 6.1.2 |
If no valid right of pledge is created pursuant to this Agreement in respect of any Inventory, the Pledgor, upon becoming aware thereof, irrevocably and unconditionally undertakes to pledge to the Pledgee such Inventory
promptly after it becomes available for pledging, by way of supplemental agreements or deeds or other instruments on the same (or similar) terms of this Agreement. |
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| 6.1.3 |
The Pledgor shall at its own cost execute any instrument, provide such assurances and do all acts and things as may be necessary or desirable for: |
| |
(a) |
perfecting, preserving or protecting any Right of Pledge created (or intended to be created) by, or any of the rights of the Pledgee under this Agreement; |
| |
(b) |
exercising any power, authority or discretion vested in the Pledgee under this Agreement; |
| |
(c) |
ensuring that any Right of Pledge and any obligations of the Pledgor under this Agreement shall inure to the benefit of any successor, transferee or assignee of the Pledgee; or |
| |
(d) |
facilitating the collection or control of the Inventory or the enforcement of a Right of Pledge or any part thereof in the manner contemplated by this Agreement. |
| 6.2.1 |
The Pledgor irrevocably and unconditionally appoints the Pledgee as its attorney (gevolmachtigde) for as long as any of the Secured Obligations are outstanding for the purposes of doing in its name all acts and
executing, signing and (if required) registering in its name all documents which the Pledgor itself could do, execute, sign or register in relation to the Inventory or this Agreement. |
| 6.2.2 |
It is expressly agreed that the appointment under Clause 6.2 is given with full power of substitution and also applies to any situation where the Pledgee acts as the Pledgor’s counterparty (Selbsteintritt)
within the meaning of Section 3:68 of the Dutch Civil Code or as a representative of the Pledgor’s counterparty. |
| 6.3 |
Subordination of recourse or subrogation claims |
| 6.3.1 |
No rights of subrogation accrue to the Pledgor. |
| 6.3.2 |
The Pledgor agrees with the other Parties and for the benefit of the Pledgee that any conditional or unconditional claim which the Pledgor may be entitled to bring in recourse against another Credit Party (including any
claim pursuant to Section 6:13 of the Dutch Civil Code) and any claim which results from rights of subrogation which have accrued notwithstanding Clause 6.3.1 (the Recourse and Subrogation Claims) is subordinated now or from the moment
such Recourse and Subrogation Claim comes into existence or is acquired by the Pledgor, to all present and future claims that the Pledgee may have or acquire against another Credit Party in connection with the obligations under this Agreement or any
other Credit Document. |
| 6.3.3 |
Unless otherwise directed by the Pledgee, the Pledgor agrees with the other Parties and for the benefit of the Pledgee that it shall not exercise any rights under or in connection with the Recourse and Subrogation
Claims including the right of payment or set-off and the Recourse and Subrogation Claims cannot become due and payable until all Secured Obligations have been fully and unconditionally discharged. |
| 7.1.1 |
Each Right of Pledge shall remain in full force and effect until the Termination Date, unless terminated by the Pledgee pursuant to Clause 7.2 (Termination by Pledgee). On the Termination Date, this Agreement shall
terminate (provided that all indemnities set forth herein shall survive such termination) and the Pledgee, at the request and expense of the Pledgor, will promptly |
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| |
execute and deliver to the Pledgor a proper instrument or instruments acknowledging the satisfaction and termination of this Agreement, and will duly assign, transfer and deliver to the Pledgor
(without recourse and without any representation or warranty) such of the Inventory as may be in the possession of the Pledgee and as has not theretofore been sold or otherwise applied or released pursuant to this Agreement. As used in this
Agreement, Termination Date shall mean the date upon which the Total Revolving Loan Commitment under the Credit Agreement has been terminated, no Note is outstanding (and all Loans and Unpaid Drawings have been paid in full), all Letters of Credit
have been terminated (or have been cash collateralized or backstopped by another letter of credit, in either case on terms and pursuant to arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which
arrangements, in any event, shall require such cash collateral or backstop letter of credit to be in a stated amount equal to at least 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time)), and all other Credit
Document Obligations (as defined in the Dutch General Security Agreement) (other than indemnities and other contingent payment obligations under the Credit Documents which are not then due and payable) then due and payable have been paid in full.
|
| 7.1.2 |
In the event that any part of the Collateral is (x) sold or otherwise disposed of (to a Person other than a Credit Party) in connection with a sale or disposition not prohibited by the Credit Agreement,
(y) constitutes or will constitute collateral in a financing permitted by Section 10.04(r), (s) or (v) of the Credit Agreement or (z) is otherwise released at the direction of the Required Lenders (or all the Lenders if
required by Section 13.12 of the Credit Agreement), the Pledgee, at the request and expense of the Pledgor, will duly release from the security interest created hereby (and will promptly execute and deliver such documentation, including
termination or partial release statements, including UCC-3s, subordination agreements and the like in connection therewith to evidence the release of such item of Collateral or to subordinate its interest in such item of Collateral) and assign,
transfer and deliver to the Pledgor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or otherwise disposed of, or released, and as may be in the possession of Pledgee and has
not theretofore been released pursuant to this Agreement. In the case of any sale or disposition of any Collateral not prohibited under the Credit Agreement (unless sold to another Credit Party) or constituting Collateral in a financing permitted by
Section 10.04(r), (s) or (v) of the Credit Agreement, the security interest created hereby on such Collateral shall be automatically released without the need for further action by any Person. Furthermore, upon the release of the
Pledgor from the Dutch Guaranty in accordance with the provisions thereof, the Pledgor and the Collateral shall be automatically released from this Agreement, and Pledgee, at the request and expense of the Pledgor being released, will promptly
execute and deliver such documentation, including termination or partial release statements, including UCC-3s, and the like in connection therewith) and assign, transfer and deliver to the Pledgor (without recourse and without any representation or
warranty) the Collateral of such the Pledgor. |
| 7.1.3 |
At any time that the Pledgor desires that Pledgee takes any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing Section 7.1.1 or Section 7.1.2, the Pledgor shall deliver
to Pledgee a certificate signed by an Authorized Officer of the Pledgor stating that the release of the respective Collateral is permitted pursuant to such Section 7.1.1 or Section 7.1.2. |
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| 7.2 |
Termination by Pledgee |
The Pledgee is entitled to terminate by notice (opzeggen)
or waive (afstand doen) a Right of Pledge, in respect of all or part of the Inventory and all or part of the Secured Obligations. The Pledgor agrees in advance to any waiver (afstand van recht) granted by the Pledgee under this Clause
7.2.
| 8.1 |
No assignment – Pledgor |
The rights and obligations of the Pledgor under this
Agreement cannot be transferred, assigned or pledged in accordance with Section 3:83 (2) of the Dutch Civil Code.
The Pledgee may transfer, assign or pledge any of its rights
and obligations under this Agreement in accordance with the Credit Agreement and the Pledgor, to the extent legally required, irrevocably cooperates or consents in advance (verleent bij voorbaat medewerking of geeft bij voorbaat toestemming)
to such transfer, assignment or pledge. If the Pledgee transfers, assigns or pledges its rights under the Secured Obligations (or a part thereof), in accordance with the Credit Agreement, the Pledgor and the Pledgee agree that each Right of Pledge
shall follow pro rata parte the transferred, assigned or pledged rights under the Secured Obligations (as an ancillary right (nevenrecht) to the relevant transferee, assignee or pledgee).
Any communication to be made under or in connection with this Agreement shall
be made in accordance with the relevant provisions of the Credit Agreement.
All costs, charges, expenses and taxes in connection with this Agreement shall be
payable by the Pledgor in accordance with the relevant provisions of the Credit Agreement.
As to the existence and composition of the Secured Obligations, a
written statement by the Pledgee made in accordance with its books shall, save for manifest error, constitute conclusive evidence (dwingend bewijs), subject to evidence to the contrary. In the event of a disagreement with respect thereto,
this does not affect the right of enforcement or collection under this Agreement.
| 10.3 |
No liability Pledgee |
Except for its gross negligence (grove nalatigheid) or
wilful misconduct (opzet), the Pledgee shall not be liable towards the Pledgor for not (or not completely) collecting, recovering or selling the Inventory or any loss or damage resulting from any collection, recovery or sale of the Inventory
or arising out of the exercise of or failure to exercise any of its powers under this Agreement or for any other loss of any nature whatsoever in connection with the Inventory or this Agreement.
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| 10.4.1 |
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not affect: |
| |
(a) |
the validity or enforceability in that jurisdiction of any other provision of this Agreement; or |
| |
(b) |
the validity or enforceability in other jurisdictions of that or any other provision of this Agreement. |
| 10.4.2 |
The Pledgor and the Pledgee shall negotiate in good faith to replace any provision of this Agreement which may be held unenforceable with a provision which is enforceable and which is as similar as possible in substance
to the unenforceable provision. |
The Pledgor waives, to the fullest extent permitted by law, its rights to
rescind (ontbinden) this Agreement, to suspend (opschorten) any of its obligations or liability under this Agreement, or to nullify (vernietigen) this Agreement on any ground under Dutch law or under any other applicable law.
No failure to exercise, nor any delay in exercising, on the part of the
Pledgee, any right or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
This Agreement shall not be amended except in writing, signed by both parties
and in accordance with the terms of the Credit Agreement.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
Each Pledgee accepts each Right of Pledge and all terms, waivers,
authorities and powers pursuant to this Agreement.
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| 12 |
GOVERNING LAW AND JURISDICTION |
This Agreement and any non-contractual obligations arising out of or in
connection with it, are governed by Dutch law.
| 12.2.1 |
The court (rechtbank) of Amsterdam, the Netherlands has exclusive jurisdiction to settle at first instance any dispute arising out of or in connection with this Agreement (including a dispute regarding the
existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute). |
| 12.2.2 |
Each Party agrees that the court (rechtbank) of Amsterdam, the Netherlands is the most appropriate and convenient court to settle Disputes and accordingly no Party will argue to the contrary. |
| 12.2.3 |
This Clause 12.2 is for the benefit of the Pledgee only. As a result, the Pledgee shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law,
the Pledgee may take concurrent proceedings in any number of jurisdictions. |
| 12.3 |
Acceptance governing law power of attorney |
If a Party is represented by an attorney in
connection with the execution of this Agreement or any agreement or document pursuant this Agreement:
| |
(a) |
the existence and extent of the authority of; and |
| |
(b) |
the effects of the exercise or purported exercise of that authority by, |
that attorney is
governed by the law designated in the power of attorney pursuant to which that attorney is appointed and such choice of law is accepted by the other Parties.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Remainder of page intentionally left blank
Signature page follows
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Schedule 1
INVENTORY
| 1 |
List of addresses of locations where Inventory is held |
TESLA MOTORS NETHERLANDS B.V.
|
|
|
|
|
| Address |
|
Location owned or
leased by the
Pledgor? |
|
If not owned by the Pledgor, (a) the name of
the entity/person with whom the Inventory is
held, and (b) the relevant contact details
thereof (contact person, address, fax, email) |
|
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|
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Schedule 2
FORM OF SUPPLEMENTAL SECURITY AGREEMENT
| To: |
[name pledgee] (the Pledgee) |
[address]
[fax number]
Capitalised terms used but not
defined in this supplemental security agreement shall have the meaning given thereto in the security agreement dated ● (the Agreement). The provisions of the Agreement apply mutatis mutandis to this Supplemental Security
Agreement and are deemed to be incorporated by reference to this Supplemental Security Agreement and any reference in the Agreement to ‘this Agreement’ shall be read as a reference to this Supplemental Security Agreement.
In order to fulfil our obligation pursuant to Clause 2.1.1 (Maintenance – Supplemental Security Agreement) of the Agreement and as security for the
Secured Obligations we grant to you, to the extent necessary in advance (bij voorbaat), in accordance with the terms of the Agreement a right of pledge (pandrecht) over our Inventory, insofar as such Inventory have not already been
validly pledged to you pursuant to the Agreement or a previous Supplemental Security Agreement.
This Supplemental Security Agreement is governed by Dutch
law.
Yours faithfully,
[place], [date]
[● NAME PLEDGOR]
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Pursuant to Clause 2.1.1 (Maintenance – Supplemental Security Agreement) of the Agreement, we accept on your
behalf each Right of Pledge by signing this Supplemental Security Agreement.
[● NAME PLEDGEE],
represented by [Name Pledgor]
[THIS SUPPLEMENTAL SECURITY AGREEMENT MUST BE REGISTERED WITH THE DUTCH TAX AUTHORITIES]
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SIGNATURE PAGE
Pledgee
DEUTSCHE BANK AG NEW YORK BRANCH
Pledgor
TESLA MOTORS
NETHERLANDS B.V.
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EXHIBIT I-2
FORM OF DUTCH RECEIVABLES SECURITY AGREEMENT
[Provided under Separate Cover]
SECURITY AGREEMENT
(RECEIVABLES)
DATED 10 JUNE
2015
between
TESLA
MOTORS NETHERLANDS B.V.
as Pledgor
and
DEUTSCHE BANK AG NEW YORK
BRANCH
as Pledgee
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TABLE OF CONTENTS
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| Clause |
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Page |
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| 1 |
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DEFINITIONS AND INTERPRETATION |
|
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1 |
|
| 2 |
|
CREATION OF SECURITY |
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3 |
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| 3 |
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AUTHORITY TO COLLECT AND CONTROL |
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4 |
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| 4 |
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REPRESENTATIONS AND WARRANTIES |
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5 |
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| 5 |
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UNDERTAKINGS |
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5 |
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| 6 |
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ENFORCEMENT |
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6 |
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| 7 |
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FURTHER ASSURANCES, POWER OF ATTORNEY AND SUBORDINATION |
|
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7 |
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| 8 |
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TERMINATION |
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9 |
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| 9 |
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ASSIGNMENT |
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10 |
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| 10 |
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NOTICES |
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10 |
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| 11 |
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MISCELLANEOUS |
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10 |
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| 12 |
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ACCEPTANCE |
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12 |
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| 13 |
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GOVERNING LAW AND JURISDICTION |
|
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12 |
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SCHEDULE 1
collection accounts
SCHEDULE 2
FORM OF NOTICE OF PLEDGE OF ACCOUNT
SCHEDULE 3
form of supplemental security agreement
security agreement
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ii
THIS SECURITY AGREEMENT is dated 10 June 2015 and made between:
| (1) |
TESLA MOTORS NETHERLANDS B.V., a private company with limited liability (besloten vennootschap), incorporated and existing under Dutch law, having its official seat (statutaire zetel) in Amsterdam,
the Netherlands and registered with the trade register of the chamber of commerce under number 52601196 (the Pledgor); and |
| (2) |
DEUTSCHE BANK AG NEW YORK BRANCH (as Collateral Agent and as sole creditor under the Dutch Parallel Debt, the Pledgee). |
IT IS AGREED as follows:
| 1 |
DEFINITIONS AND INTERPRETATION |
| 1.1.1 |
Capitalised terms used but not defined in this Agreement shall have the meaning given thereto in the Credit Agreement. |
Account Bank means any financial institution with which the Pledgor
(now or in the future) maintains a Collection Account.
Account Rights means any and all rights and claims
(vorderingsrechten) (including any right of recourse (regres) or subrogation (subrogatie)) whether present or future, whether actual or contingent, of the Pledgor against an Account Bank in respect of any Collection Account.
Agreement means this security agreement.
Collateral means the Account Rights and the Receivables.
Collection Account means any present and future Core Dutch Deposit Account of the Pledgor for the collection of Receivables which is
administered in the Netherlands, including the accounts listed in Schedule 1 (Collection accounts).
Credit Agreement means the ABL
Credit Agreement, dated as of 10 June 2015, among Tesla Motors, Inc., (the Company, 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), the Pledgor (together with each other Wholly-Owned Dutch Subsidiary of the Pledgor 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), JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc. and Bank of America, N.A., as Syndication Agents, Wells Fargo Bank, National Association, as
Documentation Agent, and the Pledgee as administrative agent (in such capacity, together with any successor administrative agent, the Administrative Agent) and as collateral agent (in such capacity, together with any successor collateral
agent, the Collateral Agent).
Debtor means any person from whom any part of the Receivables is or may be due to the Pledgor.
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Deposit Account Control Agreement means any agreement or other documentation entered into
between the Pledgee, the Pledgor and the relevant Account Bank necessary or desirable to perfect the Right of Pledge of the Pledgee and effect control over any Collection Account in accordance with the provisions of this Agreement and/or the Credit
Agreement.
Enforcement Event means a default by a Dutch Credit Party in the performance of the Secured Obligations (whether in
whole or in part) provided that such default constitutes an Event of Default which is continuing and which has resulted in the Pledgee exercising its rights under Section 11 of the Credit Agreement.
Notice of Pledge of Account means a notice of pledge substantially in the form set out in Schedule 2 (Form of notice of pledge of
account) or in such other form as may be specified by the Pledgee.
Party means a party to this Agreement.
Permitted Security means any Permitted Liens as defined in the Credit Agreement.
Receivables means any and all rights and claims (vorderingsrechten) (including any right of recourse (regres) or
subrogation (subrogatie)) whether present or future, whether actual or contingent, of the Pledgor with respect to or arising out of an agreement or a legal relationship in connection with the sale or lease of inventory or the rendition of
services relating to the inventory.
Right of Pledge means a right of pledge created by this Agreement in accordance with Clause 2
(Creation of security).
Secured Obligations means all present and future liabilities and obligations consisting of monetary payment
obligations (vorderingen tot voldoening van een geldsom) of each Dutch Credit Party to the Pledgee, at any time, both actual and contingent and whether incurred solely or jointly or as principal, surety or in any other capacity whether for
principal, interest, costs or otherwise under or in connection with this Agreement, the Dutch Guaranty and the Dutch Parallel Debt (and if the Right of Pledge cannot validly secure the Dutch Parallel Debt, the Dutch Corresponding Debt itself shall
be the Secured Obligations).
Supplemental Security Agreement means a supplemental security agreement substantially in the form as
set out in Schedule 3 (Form of Supplemental Security Agreement).
| 1.2.1 |
Unless a contrary indication appears, any reference in this Agreement to: |
| |
(a) |
a Clause or a Schedule shall, subject to any contrary indication, be construed as a reference to a clause or a schedule of this Agreement; |
| |
(b) |
reference to a clause or a schedule of this Agreement; |
| |
(c) |
this Agreement, the Credit Agreement, a Credit Document or any other agreement or instrument includes all amendments,
supplements, novations, restatements or re-enactments (without prejudice to any prohibition thereto) however fundamental and of whatsoever nature thereunder and includes without limitation (i) any increase or reduction in
|
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(receivables)
2
| |
any amount available under the Credit Agreement or any other Credit Document (as amended, supplemented, novated, restated or re-enacted) or any alteration of or addition to the purpose for which
any such amount, or increased or reduced amount may be used, (ii) any facility provided in substitution of or in addition to the facilities originally made available thereunder, (iii) any rescheduling of the indebtedness incurred
thereunder whether in isolation or in connection with any of the foregoing, and (iv) any combination of the foregoing, and the Secured Obligations include all of the foregoing; |
| |
(d) |
person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, partnership or other entity (whether or not having separate legal personality) or two
or more of the foregoing; |
| |
(e) |
the Pledgee, the Pledgor, any Debtor or any other person includes its successors in title, permitted assigns and permitted transferees; and |
| |
(f) |
a provision of law is a reference to that provision as amended or re-enacted. |
| 1.2.2 |
Clause and Schedule headings are for ease of reference only. Schedules form an integral part of this Agreement. |
| 1.2.3 |
An Enforcement Event shall constitute a verzuim (as meant in Section 3:248 (1) of the Dutch Civil Code) in the performance of the Secured Obligations or any part thereof, without any summons or notice
of default (aanmaning of ingebrekestelling) being sent or required. |
| 2.1.1 |
The Pledgor agrees with the Pledgee to grant and grants in favour of the Pledgee, to the extent necessary in advance (bij voorbaat), a right of pledge (pandrecht) over its Collateral and any accessory
rights (afhankelijke rechten) and ancillary rights (nevenrechten) attached to the Collateral as security for the Secured Obligations. |
| 2.2 |
Maintenance – Supplemental Security Agreement |
| 2.2.1 |
In respect of any Receivable not pledged pursuant to Clause 2.1.1 or pursuant to any Supplemental Security Agreement, the Pledgor undertakes to grant to the Pledgee (i) on the last Business Day of each calendar
month or, if a Borrowing Base Certificate is submitted weekly in accordance with Section 9.01 (h) of the Credit Agreement, on the last Business Day of each week (provided that, subject to clause (ii) below, no more than one
Supplemental Security Agreement shall be required in a calendar month or week, if applicable), or (ii) following the continuance of a Dominion Period once every Business Day (or with such other frequency as the Pledgee may in its discretion
acting reasonably designate in writing to the relevant Pledgor) by means of a Supplemental Security Agreement: |
| |
(a) |
an undisclosed right of pledge over each of its Receivables which exist at the date of registration of a Supplemental Security Agreement; or |
| |
(b) |
to the extent the Receivables consist of future Receivables which will directly arise from legal relationships (rechtsverhoudingen) which exist at the date of registration of a Supplemental Security Agreement an
undisclosed right of pledge in advance (bij voorbaat) over each of its future Receivables, |
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3
as security for the Secured Obligations.
| 2.2.2 |
The Pledgee appoints the Pledgor as its attorney to accept on behalf of the Pledgee any right of pledge envisaged to be created under any Supplemental Security Agreement, which appointment also applies to any situation
where the Pledgor acts as the Pledgee’s counterparty or as a representative of the Pledgee’s counterparty. |
| 2.3 |
Notification Account Bank |
The Pledgor shall upon the execution of this Agreement (to
the extent relevant) and each time the Pledgor opens a Collection Account with a new Account Bank promptly (a) if required under the Credit Agreement, enter into a Deposit Account Control Agreement with the relevant Account Bank and the Pledgee
or (b) if not so required, notify the Account Bank (with a copy to the Pledgee) of each Right of Pledge by serving a Notice of Pledge of Account and return to the Pledgee a copy of such Deposit Account Control Agreement or Notice of Pledge of
Account, duly signed by the relevant Account Bank within 5 Business Days after the date of this Agreement or the date that a Collection Account has been opened with the new Account Bank.
| 2.4 |
Registration with the Dutch tax authorities |
| 2.4.1 |
The Pledgor shall within 3 Business Days upon the execution of this Agreement or any Supplemental Security Agreement offer this Agreement or such Supplemental Security Agreement for registration with the Dutch tax
authorities. The Pledgor shall as soon as possible thereafter provide the Pledgee (a) with documentation evidencing that this Agreement or any Supplemental Security Agreement has been offered for registration with the Dutch tax authorities and
(b) upon receipt of a registered copy of this Agreement or any Supplemental Security Agreement, with such registered copy. |
| 2.4.2 |
Until notification of a Right of Pledge to the relevant Account Bank or Debtor, and provided that this Agreement or the relevant Supplemental Security Agreement is registered with the Dutch tax authorities, that Right
of Pledge constitutes an undisclosed right of pledge (stil pandrecht) over that Receivable. |
| 3 |
AUTHORITY TO COLLECT AND CONTROL |
| 3.1 |
Authority to control Collection Accounts |
| 3.1.1 |
Upon notification of the relevant Right of Pledge to the Account Bank in accordance with Clause 2.3 (Notification Account Bank), the Pledgee is, in accordance with Section 3:246 (1) of the Dutch Civil Code and
the relevant provisions of the Credit Agreement, entitled to collect and receive payment of the Account Rights which are subject to that Right of Pledge. Subject to Clause 3.1.2, the Pledgee authorises the Pledgor to collect and receive payment of
the Account Rights in accordance with the Deposit Account Control Agreement. |
| 3.1.2 |
Upon the occurrence of a Dominion Period, the Pledgee may terminate the authorisation granted pursuant to Clause 3.1.1 by giving notice thereof to the Pledgor and the relevant Debtor. |
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| 3.2 |
Authority to collect Receivables |
| 3.2.1 |
Upon notification of the relevant Right of Pledge to the Debtors, the Pledgee is, in accordance with Section 3:246 (1) of the Dutch Civil Code and the relevant provisions of the Credit Agreement, entitled to
collect and receive payment of the Receivables which are subject to that Right of Pledge. |
| 3.2.2 |
Upon the occurrence of a Dominion Period, the Pledgee may serve notice of the relevant Right of Pledge and give payment instructions to any Debtor or instruct the Pledgor to do so, following which the Pledgee may
exercise all rights of the Pledgor in relation to the Receivables towards such Debtor. |
| 4 |
REPRESENTATIONS AND WARRANTIES |
| 4.1.1 |
The Pledgor makes the representations and warranties in this Clause 4 in respect of the Collateral existing on the date the representations or warranties are made. |
| 4.1.2 |
On the date of this Agreement and on each date future Collateral arises or a person becomes an Account Bank or Debtor: |
| |
(a) |
save for Permitted Security or as otherwise permitted under the Credit Agreement, each Right of Pledge is a first ranking right of pledge (pandrecht eerste in rang); |
| |
(b) |
save for Permitted Security, its Collateral has not been pledged, made subject to a limited right (beperkt recht) or otherwise encumbered (in advance (bij voorbaat)) to any person; |
| |
(c) |
it is entitled (beschikkingsbevoegd) to pledge its Collateral; |
| |
(d) |
its Collateral is capable of being pledged; and |
| |
(e) |
its Collateral is not subject to any attachment. |
| 4.1.3 |
On the date of this Agreement it has no other Collection Accounts than those listed in Schedule 1 (Collection accounts). |
The undertakings in this Clause 5 remain in force from the date of this
Agreement until each Right of Pledge is terminated in accordance with Clause 8 (Termination).
Unless permitted under the Credit Agreement, without the prior written
consent of the Pledgee, no Pledgor shall:
| |
(a) |
pledge, make subject to a limited right (beperkt recht) or otherwise encumber the Collateral; |
| |
(b) |
release (kwijtschelden) or waive (afstand doen van) any of the Collateral; |
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| |
(c) |
waive any accessory rights (afhankelijke rechten) or ancillary rights (nevenrechten) attached to the Collateral; |
| |
(d) |
agree with a court composition or an out-of-court composition (gerechtelijk of buitengerechtelijk akkoord) or enter into any settlement agreement in respect of the Collateral; or |
| |
(e) |
perform any act which adversely affects or may adversely affect the Collateral or any Right of Pledge. |
| 5.3.1 |
The Pledgor shall promptly notify the Pledgee after it has opened a Collection Account (other than an Excluded Account). |
| 5.3.2 |
As often as the Pledgee may reasonably request and subject to any applicable law, the Pledgor shall promptly submit an up-to-date overview listing its Receivables and Collection Accounts and the full names and addresses
of the Debtors in a form agreed by the Pledgee, such that the Pledgee can use such information to process and address notifications of pledge to each Debtor. |
| 5.3.3 |
Subject to the relevant provisions of the Credit Agreement, the Pledgor shall allow the Pledgee to inspect its administrative records in respect of the Collateral upon reasonable prior notice and at such reasonable
times and intervals and to such reasonable extent as the Pledgee may reasonably request. |
| 5.3.4 |
The Pledgor shall promptly notify in writing, at its own cost, the existence of this Agreement and each Right of Pledge to any court process server (deurwaarder), bankruptcy trustee (curator),
administrator (bewindvoerder) or similar officer in any jurisdiction or to any other person claiming to have a right to a Receivable, and shall promptly send to the Pledgee a copy of the relevant correspondence. |
| 5.4 |
Additional undertakings |
No Pledgor shall have Collection Accounts (other than Excluded
Accounts) other than those listed in Schedule 1 (Collection accounts) unless the Pledgor complies with Section 10.11 of the Credit Agreement.
| 6.1.1 |
Upon the occurrence of an Enforcement Event, the Pledgee shall have the right to enforce any Right of Pledge in accordance with Dutch law and any other applicable law and may take all (legal) steps and measures which it
deems necessary or desirable for that purpose. |
| 6.1.2 |
Upon the Pledgee becoming entitled to collect the Collateral, the Pledgee shall have the right to exercise any accessory rights (afhankelijke rechten) or ancillary rights (nevenrechten), enter into court
compositions or out-of-court compositions (gerechtelijke of buitengerechtelijke akkoorden) and to cast a vote in connection with such compositions and to enter into any settlement agreement regarding the Receivables with any Debtor or any
other person. |
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| 6.2.1 |
The Pledgee shall not be obliged to give notice of a sale of the Collateral to the Pledgor, debtors, holders of a limited right (beperkt recht) or persons who have made an attachment (beslag) on the
Receivables (as provided in Sections 3:249 and 3:252 of the Dutch Civil Code). |
| 6.2.2 |
The Pledgor waives its right to make a request to the court: |
| |
(g) |
to determine that the Collateral shall be sold in a manner deviating from the provisions of Section 3:250 of the Dutch Civil Code (as provided in Section 3:251 (1) of the Dutch Civil Code); and
|
| |
(h) |
to collect and receive payment of the Collateral after a Right of Pledge has been disclosed or as relevant, the authorisation has been terminated in accordance with Clause 3 (as provided in Section 3:246
(4) of the Dutch Civil Code). |
| 6.2.3 |
The Pledgor waives its right to demand that the Pledgee: |
| |
(i) |
shall first enforce any security granted by any other person, pursuant to Section 3:234 of the Dutch Civil Code; |
| |
(j) |
shall first proceed against or claim payment from any other person or enforce any guarantee, before enforcing any Right of Pledge; and |
| |
(k) |
pays for costs which the Pledgor has made in respect of the Collateral pursuant to Section 3:233 (2) of the Dutch Civil Code. |
| 6.2.4 |
The Pledgor waives its right (a) to set-off (verrekenen) its claims (if any) against the Pledgee under or in connection with this Agreement against the Secured Obligations and (b) if it has granted
security for any other person’s obligations, to invoke the suspension or the termination of its liability for any Secured Obligations pursuant to Section 6:139 of the Dutch Civil Code. |
| 6.3 |
Application of monies |
Subject to the mandatory provisions of Dutch law on enforcement,
all monies received or realised by the Pledgee in connection with the enforcement of any Right of Pledge or collection of Receivables following an Enforcement Event shall be applied by the Pledgee in accordance with the application of proceeds
waterfall set forth in Section 5.4 of the Dutch General Security Agreement.
| 7 |
FURTHER ASSURANCES, POWER OF ATTORNEY AND SUBORDINATION |
| 7.1.1 |
The Pledgee is entitled to present this Agreement and any other document pursuant to this Agreement for registration to any office, registrar or governmental body (including the Dutch tax authorities) in any
jurisdiction which is sufficiently material for purposes of the protection of the rights of the Pledgee under the Credit Agreement. |
| 7.1.2 |
If no valid right of pledge is created pursuant to this Agreement in respect of any Collateral, the Pledgor, upon becoming aware thereof, irrevocably and unconditionally undertakes to pledge to the Pledgee such
Collateral promptly after it becomes available for pledging, by way of supplemental agreements or deeds or other instruments on the same (or similar) terms of this Agreement. |
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| 7.1.3 |
The Pledgor shall at its own cost execute any instrument, provide such assurances and do all acts and things as may be necessary or desirable for: |
| |
(l) |
perfecting, preserving or protecting any Right of Pledge created (or intended to be created) by, or any of the rights of the Pledgee under, this Agreement; |
| |
(m) |
exercising any power, authority or discretion vested in the Pledgee under this Agreement; |
| |
(n) |
ensuring that any Right of Pledge and any obligations of the Pledgor under this Agreement shall inure to the benefit of any successor, transferee or assignee of the Pledgee; or |
| |
(o) |
facilitating the collection or control of the Collateral or the enforcement of a Right of Pledge or any part thereof in the manner contemplated by this Agreement. |
| 7.2.1 |
The Pledgor irrevocably and unconditionally appoints the Pledgee as its attorney (gevolmachtigde) for as long as any of the Secured Obligations are outstanding for the purposes of doing in its name all acts and
executing, signing and (if required) registering in its name all documents which the Pledgor itself could do, execute, sign or register in relation to the Collateral or this Agreement. |
| 7.2.2 |
It is expressly agreed that the appointment under Clause 7.2 is given with full power of substitution and also applies to any situation where the Pledgee acts as the Pledgor’s counterparty (Selbsteintritt)
within the meaning of Section 3:68 of the Dutch Civil Code or as a representative of the Pledgor’s counterparty. |
| 7.3 |
Subordination of recourse or subrogation claims |
| 7.3.1 |
No rights of subrogation accrue to the Pledgor. |
| 7.3.2 |
The Pledgor agrees with the other Parties and for the benefit of the Pledgee that any conditional or unconditional claim which the Pledgor may be entitled to bring in recourse against another Credit Party (including any
claim pursuant to Section 6:13 of the Dutch Civil Code) and any claim which results from rights of subrogation which have accrued notwithstanding Clause 7.3.1 (the Recourse and Subrogation Claims) is subordinated now or from the moment
such Recourse and Subrogation Claim comes into existence or is acquired by the Pledgor, to all present and future claims that the Pledgee may have or acquire against another Credit Party in connection with the obligations under this Agreement or any
other Credit Document. |
| 7.3.3 |
Unless otherwise directed by the Pledgee, the Pledgor agrees with the other Parties and for the benefit of the Pledgee that it shall not exercise any rights under or in connection with the Recourse and Subrogation
Claims including the right of payment or set-off and the Recourse and Subrogation Claims cannot become due and payable until all Secured Obligations have been fully and unconditionally discharged. |
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| 8.1.1 |
Each Right of Pledge shall remain in full force and effect until the Termination Date, unless terminated by the Pledgee pursuant to Clause 8.2 (Termination by Pledgee). On the Termination Date, this Agreement shall
terminate (provided that all indemnities set forth herein shall survive such termination) and the Pledgee, at the request and expense of the Pledgor, will promptly execute and deliver to the Pledgor a proper instrument or instruments acknowledging
the satisfaction and termination of this Agreement, and will duly assign, transfer and deliver to the Pledgor (without recourse and without any representation or warranty) such of the Receivables as may be in the possession of the Pledgee and as has
not theretofore been sold or otherwise applied or released pursuant to this Agreement. As used in this Agreement, Termination Date shall mean the date upon which the Total Revolving Loan Commitment under the Credit Agreement has been terminated, no
Note is outstanding (and all Loans and Unpaid Drawings have been paid in full), all Letters of Credit have been terminated (or have been cash collateralized or backstopped by another letter of credit, in either case on terms and pursuant to
arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such cash collateral or backstop letter of credit to be in a stated amount equal to at least 102% of
the aggregate Stated Amount of all Letters of Credit outstanding at such time)), and all other Credit Document Obligations (as defined in the Dutch General Security Agreement) (other than indemnities and other contingent payment obligations under
the Credit Documents which are not then due and payable) then due and payable have been paid in full. |
| 8.1.2 |
In the event that any part of the Collateral is (x) sold or otherwise disposed of (to a Person other than a Credit Party) in connection with a sale or disposition not prohibited by the Credit Agreement,
(y) constitutes or will constitute collateral in a financing permitted by Section 10.04(r), (s) or (v) of the Credit Agreement or (z) is otherwise released at the direction of the Required Lenders (or all the Lenders if
required by Section 13.12 of the Credit Agreement), the Pledgee, at the request and expense of the Pledgor, will duly release from the security interest created hereby (and will promptly execute and deliver such documentation, including
termination or partial release statements, including UCC-3s, subordination agreements and the like in connection therewith to evidence the release of such item of Collateral or to subordinate its interest in such item of Collateral) and assign,
transfer and deliver to the Pledgor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or otherwise disposed of, or released, and as may be in the possession of Pledgee and has
not theretofore been released pursuant to this Agreement. In the case of any sale or disposition of any Collateral not prohibited under the Credit Agreement (unless sold to another Credit Party) or constituting Collateral in a financing permitted by
Section 10.04(r), (s) or (v) of the Credit Agreement, the security interest created hereby on such Collateral shall be automatically released without the need for further action by any Person. Furthermore, upon the release of the
Pledgor from the Dutch Guaranty in accordance with the provisions thereof, the Pledgor and the Collateral shall be automatically released from this Agreement, and Pledgee, at the request and expense of the Pledgor being released, will promptly
execute and deliver such documentation, including termination or partial release statements, including UCC-3s, and the like in connection therewith) and assign, transfer and deliver to the Pledgor (without recourse and without any representation or
warranty) the Collateral of such the Pledgor. |
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| 8.1.3 |
At any time that the Pledgor desires that Pledgee takes any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing Section 8.1.1 or Section8.1.2, the Pledgor shall deliver to
Pledgee a certificate signed by an Authorized Officer of the Pledgor stating that the release of the respective Collateral is permitted pursuant to such Section 8.1.1 or Section 8.1.2. |
| 8.2 |
Termination by Pledgee |
The Pledgee is entitled to terminate by notice (opzeggen)
or waive (afstand doen) a Right of Pledge, in respect of all or part of the Collateral and all or part of the Secured Obligations. The Pledgor agrees in advance to any waiver (afstand van recht) granted by the Pledgee under this Clause
8.2.
| 9.1 |
No assignment – Pledgor |
The rights and obligations of the Pledgor under this
Agreement cannot be transferred, assigned or pledged in accordance with Section 3:83 (2) of the Dutch Civil Code.
The Pledgee may transfer, assign or pledge any of its
rights and obligations under this Agreement in accordance with the Credit Agreement and the Pledgor, to the extent legally required, irrevocably cooperates or consents in advance (verleent bij voorbaat medewerking of geeft bij voorbaat
toestemming) to such transfer, assignment or pledge. If the Pledgee transfers, assigns or pledges its rights under the Secured Obligations (or a part thereof), in accordance with the Credit Agreement, the Pledgor and the Pledgee agree that each
Right of Pledge shall follow pro rata parte the transferred, assigned or pledged rights under the Secured Obligations (as an ancillary right (nevenrecht) to the relevant transferee, assignee or pledgee).
Any communication to be made under or in connection with this Agreement shall
be made in accordance with the relevant provisions of the Credit Agreement.
All costs, charges, expenses and taxes in connection with this Agreement shall be
payable by the Pledgor in accordance with the relevant provisions of the Credit Agreement.
As to the existence and composition of the Secured Obligations, a
written statement by the Pledgee made in accordance with its books shall, save for manifest error, constitute conclusive evidence (dwingend bewijs), subject to evidence to the contrary. In the event of a disagreement with respect thereto,
this does not affect the right of enforcement or collection under this Agreement.
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| 11.3 |
No liability Pledgee |
Except for its gross negligence (grove nalatigheid)
or wilful misconduct (opzet), the Pledgee shall not be liable towards the Pledgor for not (or not completely) collecting, recovering or selling the Receivables or any loss or damage resulting from any collection, recovery or sale of the
Receivables or arising out of the exercise of or failure to exercise any of its powers under this Agreement or for any other loss of any nature whatsoever in connection with the Receivables or this Agreement.
| 11.4.1 |
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not affect: |
| |
(p) |
the validity or enforceability in that jurisdiction of any other provision of this Agreement; or |
| |
(q) |
the validity or enforceability in other jurisdictions of that or any other provision of this Agreement. |
| 11.4.2 |
The Pledgor and the Pledgee shall negotiate in good faith to replace any provision of this Agreement which may be held unenforceable with a provision which is enforceable and which is as similar as possible in substance
to the unenforceable provision. |
The Pledgor waives, to the fullest extent permitted by law, its
rights to rescind (ontbinden) this Agreement, to suspend (opschorten) any of its obligations or liability under this Agreement, or to nullify (vernietigen) this Agreement on any ground under Dutch law or under any other
applicable law.
No failure to exercise, nor any delay in exercising, on the part of the
Pledgee, any right or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
This Agreement shall not be amended except in writing, signed by both parties
and in accordance with the terms of the Credit Agreement.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
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Each Pledgee accepts each Right of Pledge and all terms, waivers,
authorities and powers pursuant to this Agreement.
| 13 |
GOVERNING LAW AND JURISDICTION |
This Agreement and any non-contractual obligations arising out of or in
connection with it, are governed by Dutch law.
| 13.2.1 |
The court (rechtbank) of Amsterdam, the Netherlands has exclusive jurisdiction to settle at first instance any dispute arising out of or in connection with this Agreement (including a dispute regarding the
existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute). |
| 13.2.2 |
Each Party agrees that the court (rechtbank) of Amsterdam, the Netherlands is the most appropriate and convenient court to settle Disputes and accordingly no Party will argue to the contrary. |
| 13.2.3 |
This Clause 13.2 is for the benefit of the Pledgee only. As a result, the Pledgee shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law,
the Pledgee may take concurrent proceedings in any number of jurisdictions. |
| 13.3 |
Acceptance governing law power of attorney |
If a Party is represented by an attorney in
connection with the execution of this Agreement or any agreement or document pursuant this Agreement:
| |
(r) |
the existence and extent of the authority of; and |
| |
(s) |
the effects of the exercise or purported exercise of that authority by, |
that attorney is
governed by the law designated in the power of attorney pursuant to which that attorney is appointed and such choice of law is accepted by the other Parties.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Remainder of page intentionally left blank
Signature page follows
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Schedule 1
COLLECTION ACCOUNTS
|
|
|
|
|
| Name financial
institution |
|
Account number, IBAN and
SWIFT Code |
|
Contact details (contact person,
address, fax, email) |
|
|
|
|
|
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Schedule 2
FORM OF NOTICE OF PLEDGE OF ACCOUNT
|
|
|
| To: |
|
[account bank] |
|
|
[address] |
|
|
[fax number] |
|
|
| From: |
|
[name [relevant] pledgor] (the Pledgor) |
|
|
[address] |
|
|
[fax number] |
|
|
| Copy to: |
|
[name pledgee] (the Pledgee) |
|
|
[address] |
|
|
[fax number] |
Dear Sirs,
We give you
notice that by a security agreement dated ● (the Agreement), we have granted a right of pledge (pandrecht) over any present and future right, claim and receivable in respect of our bank accounts with you[, including
the bank accounts with numbers ●] (the Accounts), in favour the Pledgee.
Until further notice in writing by the Pledgee, you are
authorised to continue to carry out our payment instructions in connection with the Accounts. The Pledgee will inform you in writing if such authorisation is terminated. Upon receipt of such notice, you will take the necessary actions to ensure that
the relevant Account is blocked immediately and carry out payment instructions of the Pledgee only in connection with the Accounts.
This notice is
governed by Dutch law.
Yours faithfully,
[place], [date]
|
|
|
|
|
| [NAME [RELEVANT] PLEDGOR] |
|
|
|
|
|
|
|
| |
|
|
|
|
| By: |
|
|
|
By: |
| Title: |
|
|
|
Title: |
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We, the undersigned, consent to the right of pledge, acknowledge receipt of this notice of pledge, agree
to be bound by its terms and confirm that we have not received a notice of another right of pledge over the Accounts. In addition, we release any right of pledge, and waive (afstand doen van) any right of set-off (verrekening) and
suspension of performance (opschorting) we may have, in respect of the Accounts until the Pledgee has notified us by written notice that the relevant right of pledge pursuant to the Agreement has been terminated.
|
|
|
|
|
| [NAME ACCOUNT BANK] |
|
|
|
|
|
|
|
| |
|
|
|
|
| Name: |
|
|
|
Name: |
| Title: |
|
|
|
Title: |
| Date: |
|
|
|
Date: |
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Schedule 3
FORM OF SUPPLEMENTAL SECURITY AGREEMENT
|
|
|
| To: |
|
[name pledgee] (the Pledgee) |
|
|
[address] |
|
|
[fax number] |
Capitalised terms used but not defined in this supplemental security agreement shall have the meaning given thereto in the
security agreement dated ● (the Agreement). The provisions of the Agreement apply mutatis mutandis to this Supplemental Security Agreement and are deemed to be incorporated by reference to this Supplemental Security Agreement and
any reference in the Agreement to ‘this Agreement’ shall be read as a reference to this Supplemental Security Agreement.
In order to fulfil our
obligation pursuant to Clause 2.2 (Maintenance – Supplemental Security Agreement) of the Agreement and as security for the Secured Obligations we grant to you, to the extent necessary in advance (bij voorbaat), in accordance with the
terms of the Agreement a right of pledge (pandrecht) over our Receivables, insofar as such Receivables have not already been validly pledged to you pursuant to the Agreement or a previous Supplemental Security Agreement.
This Supplemental Security Agreement is governed by Dutch law.
Yours faithfully,
[place], [date]
|
|
|
|
|
| [● NAME PLEDGOR] |
|
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|
|
|
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| |
|
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|
|
| By: |
|
|
|
By: |
| Title: |
|
|
|
Title: |
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Pursuant to Clause 2.2 (Maintenance – Supplemental Security Agreement) of the Agreement, we accept on your
behalf each Right of Pledge by signing this Supplemental Security Agreement.
|
|
|
|
|
| [● NAME PLEDGEE],
represented by [Name Pledgor] |
|
|
|
| |
|
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|
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| By: |
|
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|
By: |
| Title: |
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[THIS SUPPLEMENTAL SECURITY AGREEMENT MUST BE REGISTERED WITH THE DUTCH TAX AUTHORITIES]
security agreement
(receivables)
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SIGNATURE PAGE
Pledgee
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| DEUTSCHE BANK AG NEW YORK BRANCH |
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By: |
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Title: |
Pledgor
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| TESLA MOTORS NETHERLANDS B.V. |
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security agreement
(receivables)
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EXHIBIT I-3
FORM OF DUTCH GENERAL SECURITY AGREEMENT
[Provided under Separate Cover]
EXHIBIT I-3
FORM OF DUTCH GENERAL SECURITY AGREEMENT
among
TESLA MOTORS NETHERLANDS
B.V.,
CERTAIN SUBSIDIARIES OF TESLA MOTORS NETHERLANDS B.V.,
and
DEUTSCHE BANK AG NEW YORK
BRANCH,
as COLLATERAL AGENT
Dated as of
June 10, 2015
TABLE OF CONTENTS
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| ARTICLE I SECURITY INTERESTS |
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| 1.1. Grant of Security Interests |
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| 1.2. Grant of License |
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| 1.3. Power of Attorney |
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| ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS |
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| 2.1. Necessary Filings |
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| 2.2. No Liens |
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| 2.3. Other Financing Statements |
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| 2.4. Legal Names; Type of Organization; Jurisdiction of Organization |
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| 2.5. Trade Names; etc. |
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| 2.6. Certain Significant Transactions |
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| 2.7. Collateral in the Possession of a Bailee |
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| 2.8. Recourse |
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| ARTICLE III SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL |
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| 3.1. Additional Representations and Warranties |
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| 3.2. Maintenance of Records |
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| 3.3. Direction to Account Debtors; Contracting Parties; etc. |
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| 3.4. Modification of Terms; etc. |
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| 3.5. Collection |
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| 3.6. Instruments |
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| 3.7. Assignors Remain Liable Under Accounts |
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| 3.8. Assignors Remain Liable Under Contracts |
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| 3.9. Letter-of-Credit Rights |
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| 3.10. Chattel Paper |
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| 3.11. Further Actions |
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| ARTICLE IV PROVISIONS CONCERNING ALL COLLATERAL |
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| 4.1. Protection of Collateral Agent’s Security |
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| 4.2. Additional Information |
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| 4.3. Financing Statements |
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| ARTICLE V REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT |
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| 5.1. Remedies; Obtaining the Collateral Upon Default |
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| 5.2. Remedies; Disposition of the Collateral |
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| 5.3. Waiver of Claims |
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| 5.4. Application of Proceeds |
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| 5.5. Remedies Cumulative |
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| 5.6. Discontinuance of Proceedings |
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| 5.7. Subordination |
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| ARTICLE VI INDEMNITY |
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| 6.1. Indemnity |
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| 6.2. Indemnity Obligations Secured by Collateral; Survival |
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| ARTICLE VII DEFINITIONS |
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| ARTICLE VIII MISCELLANEOUS |
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| 8.1. Notices |
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| 8.2. Waiver; Amendment |
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| 8.3. Obligations Absolute |
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| 8.4. Successors and Assigns |
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| 8.5. Headings Descriptive |
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| 8.6. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL |
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| 8.7. Assignors’ Duties |
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| 8.8. Termination; Release |
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| 8.9. Counterparts |
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| 8.10. Severability |
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| 8.11. The Collateral Agent and the other Secured Creditors |
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| 8.12. Additional Assignors |
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| 8.13. Release of Assignors |
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| 8.14. Intercreditor Agreement |
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| ANNEX A |
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[Reserved] |
| ANNEX B |
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Schedule of Legal Names, Type of Organization, Jurisdiction of Organization, Location and Organizational Identification Numbers |
| ANNEX C |
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Schedule of Trade and Fictitious Names |
| ANNEX D |
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Description of Certain Significant Transactions Occurring Within One Year Prior to the Date of the Security Agreement |
DUTCH GENERAL SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of June 10, 2015, made by each of the undersigned assignors (each, an “Assignor” and,
together with any other entity that becomes an assignor hereunder pursuant to Section 8.12 hereof, the “Assignors”) in favor of DEUTSCHE BANK AG NEW YORK BRANCH (in its individual capacity, and any successor corporation thereto
by merger, consolidation or otherwise, “DBNY”), as collateral agent (together with any successor collateral agent, the “Collateral Agent”), for the benefit of the Secured Creditors (as defined below). Certain
capitalized terms as used herein are defined in Article VII hereof. Except as otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Tesla Motors, Inc., a Delaware corporation (the “Company”, 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., a company organized under the laws of the Netherlands (“Tesla
B.V.” and, together with each other Wholly-Owned Dutch Subsidiary of the Tesla B.V. that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”; and the Dutch Borrowers,
together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc.
and Bank of America, N.A., as Syndication Agents, Wells Fargo Bank, National Association, as Documentation Agent, and DBNY, as administrative agent (in such capacity, together with any successor administrative agent, the “Administrative
Agent”) and as collateral agent (in such capacity, together with any successor collateral agent, the “Collateral Agent”), have entered into an ABL Credit Agreement, dated as of June 10, 2015 (as amended, modified,
restated and/or supplemented from time to time, the “Credit Agreement”), providing for the making of Loans to the Borrowers, and the issuance of, and participation in, Letters of Credit for the account of the Borrowers, all as
contemplated therein (the Lenders, each Issuing Lender, the Administrative Agent and the Collateral Agent are herein called the “Secured Creditors”);
WHEREAS, pursuant to the Dutch Guaranty, each Assignor has jointly and severally guaranteed to the Secured Creditors the payment when due of
all Guaranteed Obligations as described (and defined) therein on the terms and conditions set forth therein;
WHEREAS, it is a condition
precedent to the making of Loans to the Borrowers, and the issuance of (and participation in) Letters of Credit for the account of the Borrowers, in each case under the Credit Agreement that each Assignor shall have executed and delivered to the
Collateral Agent this Agreement; and
WHEREAS, each Assignor will benefit from the incurrence of Loans by the Dutch Borrowers and the
issuance of (and participation in) Letters of Credit for the account of the Dutch Borrowers under the Credit Agreement and, accordingly, desires to execute this Agreement in order to (i) satisfy the condition described in the preceding
paragraph and (ii) induce the Lenders to make Loans to the Dutch Borrowers and issue (and/or participate in) Letters of Credit for the respective accounts of the Dutch Borrowers;
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each Assignor,
the receipt and sufficiency of which are hereby acknowledged, each Assignor hereby makes the following representations and warranties to the Collateral Agent for the benefit of the Secured Creditors and hereby covenants and agrees with the
Collateral Agent for the benefit of the Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1.
Grant of Security Interests
(a) As security for the prompt and complete payment and performance when due of all of its Obligations, each
Assignor does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property
(and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
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each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General
Intangible) to the extent related to any Account); |
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all cash and Money arising from an Account; |
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the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; |
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all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto,
(y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) commodity accounts and all
cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto; in each case to the extent not constituting a Dutch Pledged Account and in each case to the extent (i) holding Designated Cash,
(ii) subject to a Cash Management Control Agreement or (iii) otherwise subject to a control agreement in form and substance reasonably satisfactory to the Administrative Agent giving the Collateral Agent “control” (within the
meaning of the UCC). |
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all Promissory Notes relating to any Account; |
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(vi) |
all Inventory to the extent not constituting Dutch Pledged Inventory; |
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all Payment Intangibles relating to any Account; |
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(viii) |
to the extent relating to, evidencing or governing any of the items referred to in preceding clauses (i) through (vii), all Permits, Documents, General Intangibles (excluding all Intellectual Property Rights and
contracts related thereto), Chattel Paper, Instruments, Letter-of-Credit Rights, related letters of credit, guarantees and collateral liens, documents of title, customs receipts, insurance, shipping and other documents and other materials related to
the foregoing (including to the purchase or import of any Inventory (other than Dutch Pledged Inventory)); |
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(ix) |
to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (vii), all Supporting Obligations; |
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(x) |
all books and records relating to the items referred to in the preceding clauses (i) through (ix) (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any
information relating to any of the items referred to in the preceding clauses (i) through (ix)); and |
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(xi) |
all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance
proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above described in the preceding clauses (i) through (xi), the
“Collateral”). |
(b) Notwithstanding anything herein to the contrary, in no event shall the security
interest and lien granted under Section 1.1(a) hereof attach to, and in no event shall the term “Collateral” (and the component terms thereof) include, (i) any property, interest or other rights for so long as the grant of such
security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation
which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 of the UCC (or
any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including the Bankruptcy Code) or principles of equity), (C) require consent of a Governmental Authority or any other Person (other than
consent of the Company or any of its Subsidiaries) to permit the grant of a security interest therein (and such consent has not been obtained) or (D) materially adverse tax consequences as reasonably determined by the Company; provided,
however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach
immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A),
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(B), (C) or (D) above; (ii) any property, interest or other rights with respect to which, in the reasonable determination of the Administrative Agent, expressed in writing, the
cost or other consequences of granting a security interest in favor of the Secured Creditors is excessive in relation to the value afforded thereby; (iii) Non-Eligible Motor Vehicles, airplanes and other assets subject to certificates of title;
(iv) Equity Interests; (v) Securitization Related Assets; (vi) all interests in Real Property; (vii) Gigafactory Assets, (viii) Accounts that are identifiable proceeds of the sale or other disposition of property that is not
Collateral, (ix) intercompany Accounts outstanding on the Effective Date and (x) Intellectual Property Rights (the assets described in preceding clauses (i) through (x) hereof, collectively, the “Excluded
Assets”).
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor
may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
Notwithstanding anything herein to
the contrary, the Assignors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
1.2. Grant of License
(a) For
purposes of enabling the Collateral Agent to exercise rights and remedies under this Agreement each Assignor hereby grants to the Collateral Agent and its agents, representatives and designees:
(i) an irrevocable, nonexclusive, royalty free license, rent-free license and rent-free lease (which will be binding on any successor or
assignee of such Assignor) to, after the occurrence and during the continuance of an Event of Default have access to and use all of such Assignor’s Real Property (including the buildings and other improvements thereon), Equipment and fixtures
(whether or not considered Real Property); and
(ii) under any Assignor Intellectual Property Rights, subject to the limitations set forth
below, an irrevocable, non-exclusive, royalty free, paid-up, sublicensable (solely as necessary for Collateral Agent to exercise its rights hereunder and not for the independent or unrelated use of any third party) license, for the sole purpose of
operating such Assignor’s Business, including completing the production of Inventory and selling the same, in accordance with this Agreement. Collateral Agent hereby agrees to take all commercially reasonable actions in connection with its
exercise of such license to protect such Assignor’s rights and interest in such Intellectual Property Rights. To the extent Collateral Agent exercises the foregoing license with respect to Assignor’s Trademarks, (i) all goodwill
arising from such use shall inure to the sole benefit of Assignor and (ii) Collateral Agent shall not use the Trademarks in a manner that detracts from the goodwill associated therewith. Collateral Agent shall take all reasonable steps under
the circumstances to protect any confidential information or trade secrets licensed hereunder.
(b) Except as provided above, the
Collateral Agent shall not have any liability to Assignor in connection with its exercise of the foregoing licenses, other than liability which is the direct result of the Collateral Agent’s gross negligence or willful misconduct, as determined
by a court of competent jurisdiction in a final and non-appealable decision), for the purpose of (i)
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arranging for and effecting the sale, distribution or other disposition of Collateral located on any such Real Property, including the manufacture, production, completion, packaging, advertising,
distribution and other preparation of such Collateral (including, without limitation, work-in-process, raw materials and complete Inventory) for sale, distribution or other disposition, (ii) selling Collateral (by public auction, private sale,
going out of business sale or similar sale, whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may include augmented Inventory of the same type sold in any Assignor’s business),
(iii) storing or otherwise dealing with the Collateral, (iv) collecting all Accounts and copying, using and preserving any and all information relating to the Collateral, and (v) otherwise dealing with the Collateral as part of the
exercise of any rights or remedies provided to the Collateral Agent hereunder or under the other Credit Documents, in each case without the interference by any Assignor or any other Subsidiary of the Company and without incurring any liability to
any Assignor or any other Subsidiary of the Company, except any liability which is the direct result of the Collateral Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).
(c) Each Assignor will, and will cause each of its Subsidiaries to, cooperate with the Collateral Agent and its
agents, representatives and designees in allowing the Collateral Agent to exercise the foregoing rights. To the extent that any asset of any Assignor in which the Collateral Agent has access or use rights as provided above is to be sold or otherwise
disposed of after the occurrence and during the continuance of an Event of Default, such Assignor shall, if requested by the Collateral Agent in writing, cause the buyer to agree in writing to be subject to, and comply with the terms of, this
Section 1.2. The Collateral Agent shall have the right to bring an action to enforce its rights under this Section 1.2, including, without limitation, an action seeking possession of the applicable Collateral and/or specific performance of
this Section 1.2.
If the grant of the above leases and licenses by an Assignor would breach any agreement with a third party, the affected Assignor
shall promptly notify the Collateral Agent in writing. In such event, the above leases and licenses shall be deemed effective to the fullest extent permitted without causing such a breach, and, at the Collateral Agent’s request, the affected
Assignor shall use commercially reasonable efforts to obtain all third-party consents required to effect fully the above leases and licenses. The affected Assignor shall pay all reasonable out-of-pocket expenses in connection with obtaining any such
consents.
1.3. Power of Attorney
Until this Agreement is terminated in accordance with its terms, each Assignor hereby constitutes and appoints the Collateral Agent its true and lawful
attorney, irrevocably, with full power after the occurrence of and during the continuance of an Event of Default (in the name of such Assignor or otherwise) to act, require, demand, receive, compound and give acquittance for any and all moneys and
claims for moneys due or to become due to such Assignor under or arising out of the Collateral, to endorse any checks or other instruments or orders in connection therewith and to file any claims or take any action or institute any proceedings which
the Collateral Agent may deem to be necessary or advisable to protect the interests of the Secured Creditors, which appointment as attorney is coupled with an interest.
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ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as
follows:
2.1. Necessary Filings
The
provisions of this Agreement (when executed and delivered by all parties thereto) are effective to create in favor of the Collateral Agent, for the benefit of the Secured Creditors, a legal, valid and enforceable security interest in all right,
title and interest of such Assignor in all of the Collateral of such Assignor described herein, and when proper UCC financing statements have been filed in the appropriate filing offices against each Assignor and/or the Collateral Agent has obtained
“control” (within the meaning of the UCC) of the Core Dutch Deposit Accounts and DB Netherlands Accounts thereunder (in each case other than the Dutch Pledged Accounts), the Collateral Agent, for the benefit of the Secured Creditors, shall
have a perfected security interest in all right, title and interest in all of the Collateral described herein of such Assignor to the extent such security interest can be perfected by filing a UCC financing statement under the UCC or, with respect
to the Core Dutch Deposit Accounts or DB Netherlands Accounts (in each case other than the Dutch Pledged Accounts), by the Collateral Agent having “control”, subject to no other Liens other than Permitted Liens (it being understood that
the Permitted Liens described in Section 10.01(s) of the Credit Agreement are subject to the terms of the Intercreditor Agreement at any time that Permitted Additional Secured Indebtedness is outstanding).
2.2. No Liens
Such Assignor is, and as
to all Collateral acquired by it from time to time after the date hereof such Assignor will be, the owner of all Collateral free from any Lien, security interest, encumbrance or other right, title or interest of any Person (other than Permitted
Liens), and such Assignor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein adverse to the Collateral Agent (other than Permitted Liens).
2.3. Other Financing Statements
As of
the date hereof, there is no financing statement (or similar statement or instrument of registration under the law of any relevant jurisdiction) covering or purporting to cover any interest of any kind in the Collateral (other than financing
statements, similar statements or instruments of registration filed in respect of Permitted Liens or filed pursuant to the other Dutch Security Agreements), and so long as the Termination Date has not occurred, such Assignor will not execute or
authorize to be filed in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in
respect of and covering the security interests granted hereby by such Assignor granted by the other Dutch Security Agreements or in connection with Permitted Liens.
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2.4. Legal Names; Type of Organization; Jurisdiction of Organization.
As of the date hereof, the exact legal name of each Assignor, the type of organization of such Assignor and the jurisdiction of organization of such Assignor,
is listed on Annex B hereto for such Assignor. Such Assignor shall not change its legal name, its type of organization or its jurisdiction of organization from that used on Annex B hereto, except that any such changes shall be permitted (so long as
not in violation of the applicable requirements of the Credit Documents and so long as same do not involve such Assignor changing its jurisdiction of organization from the Netherlands to a jurisdiction of organization outside the Netherlands) if
(i) it shall have given to the Collateral Agent not less than 10 days’ prior written notice (or such shorter period of time as may be agreed by the Collateral Agent in its discretion) of each change to the information listed on Annex B
hereto (as adjusted for any subsequent changes thereto previously made in accordance with this sentence), together with a supplement to Annex B hereto which shall correct all information contained therein for such Assignor, and (ii) in
connection with the respective change or changes, it shall have taken all action reasonably necessary or requested by the Collateral Agent to maintain the security interests of the Collateral Agent in the Collateral intended to be granted hereby at
all times fully perfected and in full force and effect.
2.5. Trade Names; etc.
As of the date hereof, such Assignor does not have or operate in any jurisdiction under, or in the five years preceding the date hereof has not had or has not
operated in any jurisdiction under, any trade names, fictitious names or other names except its legal name as specified in Annex B hereto and such other trade or fictitious names as are listed on Annex C hereto for such Assignor.
2.6. Certain Significant Transactions
During the one year period preceding the date of this Agreement, no Person shall have merged or consolidated with or into any Assignor, and no Person shall
have liquidated into, or transferred all or substantially all of its assets to, any Assignor, in each case except as described in Annex D hereto. With respect to any transactions so described in Annex D hereto, the respective Assignor shall have
furnished such information reasonably requested by the Collateral Agent with respect to the Person (and the assets of the Person and locations thereof) which merged with or into or consolidated with such Assignor, or was liquidated into or
transferred all or substantially all of its assets to such Assignor, and shall have furnished, or caused to be furnished, to the Collateral Agent such UCC lien searches as may have been requested by the Collateral Agent with respect to such Person
and its assets, to establish that no security interest (excluding Permitted Liens) continues perfected on the date hereof with respect to any Person described above (or the assets transferred to the respective Assignor by such Person), including
without limitation pursuant to Section 9-316(a)(3) of the UCC.
2.7. Collateral in the Possession of a Bailee
Without limiting the provisions of the Credit Agreement, if an Event of Default shall occur and be continuing and if any Inventory constituting Collateral or
other Goods constituting Collateral, other than such Inventory or Goods having a market value not in excess of $5,000,000 in the aggregate and other than Dutch Pledged Inventory, are in the possession of a bailee, such Assignor shall promptly notify
the Collateral Agent thereof and, if requested by the Collateral Agent, shall use its commercially reasonable efforts to promptly obtain an acknowledgment from such bailee, in form and substance reasonably satisfactory to the Collateral Agent, that
the bailee holds such Collateral for the benefit of
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the Collateral Agent and shall act upon the instructions of the Collateral Agent, without the further consent of such Assignor. The Collateral Agent agrees with such Assignor that the Collateral
Agent shall not give any such instructions unless an Event of Default has occurred and is continuing.
2.8. Recourse
This Agreement is made with full recourse to each Assignor and pursuant to and upon all the warranties, representations, covenants and agreements on the part
of such Assignor contained herein and in the other Secured Debt Agreements and otherwise in writing in connection herewith or therewith.
ARTICLE III
SPECIAL PROVISIONS
CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
3.1. Additional Representations and
Warranties
As of the time when each of its Eligible Accounts arises, each Assignor shall be deemed to have represented and warranted that each such
Eligible Account, and all records, papers and documents relating thereto (if any) are genuine and what they purport to be in all material respects, and that all papers and documents (if any) relating thereto (i) will, to the knowledge of a
Responsible Officer of such Assignor, represent the genuine, legal, valid and binding obligation of the account debtor evidencing indebtedness unpaid and owed by the respective account debtor arising out of the performance of labor or services or
the sale or lease and delivery of the merchandise listed therein, or both, enforceable against the account debtor in accordance with its terms, subject to applicable bankruptcy, insolvency or other similar laws generally affecting creditors’
rights and equitable principles (regardless of whether enforcement is sought in equity or at law), (ii) will be the only original writings evidencing and embodying such obligation of the account debtor named therein (other than copies created
for general accounting or other ordinary corporate purposes), and (iii) will be in compliance and will conform in all material respects with all applicable federal, state and local laws and applicable laws of any relevant foreign jurisdiction.
3.2. Maintenance of Records
Each
Assignor will keep and maintain at its own cost and expense accurate records of its Accounts and Contracts, in accordance with Section 9.02 of the Credit Agreement, and such Assignor will make the same available on such Assignor’s premises
to the Collateral Agent for inspection in accordance with Section 9.02 of the Credit Agreement. Upon the occurrence and during the continuance of an Event of Default and at the request of the Collateral Agent, such Assignor shall, at its own
cost and expense, deliver copies (or, if requested by the Collateral Agent after the occurrence and during the continuance of an Event of Default, originals) of all tangible evidence of its Accounts and Contract Rights (including, without
limitation, all documents evidencing the Accounts and all Contracts) and such books and records to the Collateral Agent or to its representatives (copies of such evidence and books and records may be retained by such Assignor). Upon the occurrence
and during the continuance of an Event of Default and if the Collateral Agent so directs, such Assignor shall legend, in form and manner reasonably satisfactory to the Collateral Agent, the Accounts and the Contracts, as well as books,
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records and documents (if any) of such Assignor evidencing or pertaining to such Accounts and Contracts with an appropriate reference to the fact that such Accounts and Contracts have been
assigned to the Collateral Agent and that the Collateral Agent has a security interest therein.
3.3. Direction to Account Debtors;
Contracting Parties; etc.
Upon the occurrence and during the continuance of an Event of Default (but without limiting the provisions of the Credit
Agreement), if the Collateral Agent so directs any Assignor, such Assignor agrees (x) to cause all payments on account of the Accounts and Contracts to be made directly to the Cash Collateral Account, (y) that the Collateral Agent may, at
its option, directly notify the obligors with respect to any Accounts and/or under any Contracts to make payments with respect thereto as provided in the preceding clause (x), and (z) that the Collateral Agent may enforce collection of any such
Accounts and Contracts and may adjust, settle or compromise the amount of payment thereof, in the same manner and to the same extent as such Assignor. Without notice to or assent by any Assignor, the Collateral Agent may, upon the occurrence and
during the continuance of an Event of Default, apply any or all amounts then in, or thereafter deposited in, the Cash Collateral Account toward the payment of the Obligations in the manner provided in Section 5.4 of this Agreement. The
reasonable and invoiced out-of-pocket costs and expenses of collection (including reasonable and invoiced out-of-pocket attorneys’ fees), whether incurred by an Assignor or the Collateral Agent, shall be borne by the relevant Assignor. The
Collateral Agent shall promptly deliver a copy of each notice given to any such obligors referred to in the preceding clause (y) to the relevant Assignor, provided that (x) the failure by the Collateral Agent to so notify such
Assignor shall not affect the effectiveness of such notice or the other rights of the Collateral Agent created by this Section 3.3 and (y) no such notice shall be required if an Event of Default of the type described in Section 11.05
of the Credit Agreement has occurred and is continuing.
3.4. Modification of Terms; etc.
Except (w) in accordance with such Assignor’s ordinary course of business, (x) as otherwise in such Assignor’s reasonable business
judgment, (y) as permitted by the Credit Agreement or (z) as permitted by Section 3.5 hereof, no Assignor shall rescind or cancel any indebtedness evidenced by any Account or under any Contract constituting Collateral, or
modify any term thereof or make any adjustment with respect thereto, or extend or renew the same, or compromise or settle any dispute, claim, suit or legal proceeding relating thereto, without the prior written consent of the Collateral Agent.
Except to the extent otherwise permitted by this Agreement or the Credit Agreement, no Assignor will do anything to impair in any material respect the rights of the Collateral Agent in the Accounts or Contracts.
3.5. Collection
Except as such Assignor
otherwise determines in its reasonable business judgment, each Assignor shall endeavor in accordance with reasonable business practices to cause to be collected from the account debtor named in each of its Accounts or obligor under any Contract
constituting Collateral, as and when due (including, without limitation, amounts which are delinquent, such amounts to be collected in accordance with generally accepted lawful collection procedures) any and all amounts owing under or on account of
such Account or Contract, and apply promptly upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account or under such Contract constituting Collateral. Except as otherwise
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directed by the Collateral Agent after the occurrence and during the continuation of an Event of Default, any Assignor may allow in the ordinary course of business as adjustments to amounts owing
under its Accounts and Contracts constituting Collateral (i) an extension or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which such Assignor finds appropriate in accordance with its reasonable
business judgment, (ii) a refund or credit due as a result of returned or damaged merchandise or improperly performed services or for other reasons which such Assignor finds appropriate in accordance with its reasonable business judgment and
(iii) such other adjustments which such Assignor finds appropriate in accordance with its reasonable business judgment.
3.6.
Instruments
If any Assignor owns or acquires any Instrument of $5,000,000 or more constituting Collateral (other than checks and other payment
instruments received and collected in the ordinary course of business), such Assignor will within 30 days thereafter notify the Collateral Agent thereof, and upon request by the Collateral Agent will promptly deliver such Instrument to the
Collateral Agent appropriately endorsed to the order of the Collateral Agent.
3.7. Assignors Remain Liable Under Accounts
Anything herein to the contrary notwithstanding, the Assignors shall remain liable under each of the Accounts to observe and perform all of the conditions and
obligations to be observed and performed by them thereunder, all in accordance with the terms of any agreement giving rise to such Accounts. Neither the Collateral Agent nor any other Secured Creditor shall have any obligation or liability under any
Account (or any agreement giving rise thereto) by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to such Account pursuant hereto, nor shall the Collateral Agent
or any other Secured Creditor be obligated in any manner to perform any of the obligations of any Assignor under or pursuant to any Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by them or as to the sufficiency of any performance by any party under any Account (or any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.
3.8. Assignors
Remain Liable Under Contracts
Anything herein to the contrary notwithstanding, the Assignors shall remain liable under each of the Contracts
constituting Collateral to observe and perform all of the conditions and obligations to be observed and performed by them thereunder, all in accordance with and pursuant to the terms and provisions of each such Contract. Neither the Collateral Agent
nor any other Secured Creditor shall have any obligation or liability under any Contract by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to such Contract
pursuant hereto, nor shall the Collateral Agent or any other Secured Creditor be obligated in any manner to perform any of the obligations of any Assignor under or pursuant to any Contract, to make any payment, to make any inquiry as to the nature
or the sufficiency of any performance by any party under any Contract, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be
entitled at any time or times.
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3.9. Letter-of-Credit Rights
If any Assignor is at any time a beneficiary under a letter of credit constituting Collateral in respect of Eligible Accounts or Eligible Inventory, with a
stated amount of $5,000,000 or more in the aggregate, such Assignor shall, no later than the next date required to deliver a compliance certificate pursuant to Section 9.01(d) of the Credit Agreement, notify the Collateral Agent thereof and, at
the request of the Collateral Agent, such Assignor shall, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, use its commercially reasonable efforts to (i) arrange for the issuer and any confirmer of
such letter of credit to consent to an assignment to the Collateral Agent of the proceeds of any drawing under such letter of credit or (ii) arrange for the Collateral Agent to become the transferee beneficiary of such letter of credit, with
the Collateral Agent agreeing, in each case, that the proceeds of any drawing under the letter of credit are retained by the Collateral Agent and to be applied as provided in this Agreement only after the occurrence and during the continuance of an
Event of Default.
3.10. Chattel Paper
Upon the request of the Collateral Agent made at any time or from time to time, each Assignor shall promptly furnish to the Collateral Agent a list of all
Electronic Chattel Paper constituting Collateral held or owned by such Assignor. Furthermore, if requested by the Collateral Agent, each Assignor shall promptly take all actions which are commercially reasonably so that the Collateral Agent has
“control” of all Electronic Chattel Paper, to the extent that the aggregate value or face amount of such Electronic Chattel Paper equals or exceeds $5,000,000 in the aggregate, in accordance with the requirements of Section 9-105 of
the UCC. Each Assignor will promptly (and in any event within 10 days (as such period of time may be extended by the Collateral Agent in its discretion) following any request by the Collateral Agent deliver all of its Tangible Chattel Paper to the
Collateral Agent, to the extent that the aggregate value or face amount of such Tangible Chattel Paper equals or exceeds $5,000,000 in the aggregate.
3.11. Further Actions
Each Assignor
will, at its own expense take such actions as are required by Section 9.12(a) of the Credit Agreement.
ARTICLE IV
PROVISIONS CONCERNING ALL COLLATERAL
4.1. Protection of Collateral Agent’s Security
Except as otherwise not prohibited by the Credit Documents, no Assignor will do anything to impair in any material respect the rights of the Collateral Agent
in the Collateral. Each Assignor will at all times maintain insurance, at such Assignor’s own expense to the extent and in the manner provided in the Credit Agreement. Except to the extent otherwise permitted to be retained by such Assignor or
applied by such Assignor pursuant to the terms of the Credit Agreement, the Collateral Agent shall, at the time any proceeds of such insurance are distributed to the Secured Creditors, apply such proceeds in accordance with Section 5.4 hereof.
Each Assignor assumes all liability and responsibility in connection with the Collateral acquired by it and the liability of such Assignor to pay the Obligations shall in no way be affected or diminished by reason of the fact that such Collateral
may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to such Assignor.
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4.2. Additional Information; Documents
Each Assignor will, at its own expense, from time to time upon the reasonable request of the Collateral Agent, promptly (and in any event within 10 days
after its receipt of the respective request (as such period of time may be extended by the Collateral Agent in its discretion)) (i) furnish to the Collateral Agent such information with respect to the Collateral (including the identity of the
Collateral or such components thereof as may have been requested by the Collateral Agent, the value and location of such Collateral, etc.) as may be requested by the Collateral Agent, (ii) deliver to the Collateral Agent copies of warehouse
receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title and invoices in each case relating to Collateral and (iii) with respect to any negotiable bill of lading, provide confirmation that such bill is issued
in the name of the relevant Assignor. Without limiting the forgoing, each Assignor agrees that it shall promptly (and in any event within 10 days after its receipt of the respective request (as such period of time may be extended by the Collateral
Agent in its discretion)) furnish to the Collateral Agent such updated Annexes as may from time to time be reasonably requested by the Collateral Agent.
4.3. Financing Statements
Each Assignor
agrees to execute and deliver (or cause to be executed and delivered) to the Collateral Agent such financing statements, in form reasonably acceptable to the Collateral Agent, as the Collateral Agent may from time to time reasonably request or as
are reasonably necessary or desirable in the opinion of, and at the request of, the Collateral Agent to establish and maintain a valid, enforceable, perfected security interest in the Collateral as provided herein and the other rights and security
contemplated hereby. Each Assignor will pay any applicable filing fees, recordation taxes and related expenses relating to its Collateral. Each Assignor hereby authorizes the Collateral Agent to file any such financing statements describing the
Collateral without the signature of such Assignor where permitted by law. Notwithstanding the foregoing, if reasonably requested by any Assignor, the Collateral Agent shall, at Assignor’s expense, make such filings as may be reasonably
requested to evidence that the security interests hereunder do not attach to any property that does not constitute Collateral (including any property that constitutes Excluded Assets).
ARTICLE V
REMEDIES UPON
OCCURRENCE OF AN EVENT OF DEFAULT
5.1. Remedies; Obtaining the Collateral Upon Default
Each Assignor agrees that, if any Event of Default shall have occurred and be continuing, then and in every such case, the Collateral Agent, in addition to any
rights now or hereafter existing under applicable law and under the other provisions of this Agreement, shall have all rights as a secured creditor under any UCC, and such additional rights and remedies to which a secured creditor is entitled under
the laws in effect in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or any other Person who then has possession of any part thereof with or without notice or process of law, and for that
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purpose may enter upon such Assignor’s premises where any of the Collateral is located and remove the same and use in connection with such removal any and all services, supplies, aids and
other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument or other obligation
(including, without limitation, the Accounts and the Contracts) constituting the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Collateral Agent and may exercise any and all
remedies of such Assignor in respect of such Collateral;
(iii) instruct all banks which have entered into a control
agreement with the Collateral Agent to transfer all monies, securities and instruments held by such depositary bank to the Cash Collateral Account;
(iv) sell, assign or otherwise liquidate any or all of the Collateral or any part thereof in accordance with Section 5.2
hereof, or direct such Assignor to sell, assign or otherwise liquidate any or all of the Collateral or any part thereof, and, in each case, take possession of the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by directing such Assignor in writing to deliver the same to the
Collateral Agent at any reasonable place or places designated by the Collateral Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or places so designated by the Collateral Agent and there delivered to
the Collateral Agent;
(y) store and keep any Collateral so delivered to the Collateral Agent at such place or places
pending further action by the Collateral Agent as provided in Section 5.2 hereof; and
(z) while the Collateral shall
be so stored and kept, provide such security and maintenance services as shall be reasonably necessary to protect the same and to preserve and maintain it in good condition;
(vi) exercise the rights granted under Section 1.2 hereof;
(vii) apply any monies constituting Collateral or proceeds thereof in accordance with the provisions of Section 5.4; and
(viii) take any other action as specified in clauses (1) through (5), inclusive, of Section 9-607(a) of the UCC;
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it being understood that each Assignor’s obligation so to deliver the Collateral is of the essence of this
Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by such Assignor of said obligation. By accepting the benefits of this
Agreement and each other Security Document, the Secured Creditors expressly acknowledge and agree that this Agreement and each other Security Document may be enforced only by the action of the Collateral Agent acting upon the instructions of the
Required Lenders and that no other Secured Creditor shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies
may be exercised by the Collateral Agent for the benefit of the Secured Creditors upon the terms of this Agreement and the other Security Documents.
5.2. Remedies; Disposition of the Collateral
If any Event of Default shall have occurred and be continuing, then any Collateral repossessed by the Collateral Agent under or pursuant to Section 5.1
hereof and any other Collateral whether or not so repossessed by the Collateral Agent, may be sold, assigned, leased or otherwise disposed of under one or more contracts or as an entirety, and without the necessity of gathering at the place of sale
the property to be sold, and in general in such manner, at such time or times, at such place or places and on such terms as the Collateral Agent may, in compliance with any mandatory requirements of applicable law, determine to be commercially
reasonable. Any of such Collateral may be sold, leased or otherwise disposed of, in the condition in which the same existed when taken by the Collateral Agent or after any overhaul or repair at the expense of the relevant Assignor which the
Collateral Agent shall determine to be commercially reasonable. Any such sale, lease or other disposition may be effected by means of a public disposition or private disposition, effected in accordance with the applicable requirements (in each case
if and to the extent applicable) of Sections 9-610 through 9-613 of the UCC and/or such other mandatory requirements of applicable law as may apply to the respective disposition. The Collateral Agent may, without notice or publication, adjourn any
public or private disposition or cause the same to be adjourned from time to time by announcement at the time and place fixed for the disposition, and such disposition may be made at any time or place to which the disposition may be so adjourned. To
the extent permitted by any such requirement of law, the Collateral Agent may bid for and become the purchaser (and may pay all or any portion of the purchase price by crediting Obligations against the purchase price) of the Collateral or any item
thereof, offered for disposition in accordance with this Section 5.2 without accountability to the relevant Assignor. If, under applicable law, the Collateral Agent shall be permitted to make disposition of the Collateral within a period of
time which does not permit the giving of notice to the relevant Assignor as hereinabove specified, the Collateral Agent need give such Assignor only such notice of disposition as shall be required by such applicable law. Each Assignor agrees to do
or cause to be done all such other acts and things as may be reasonably necessary to make such disposition or dispositions of all or any portion of the Collateral valid and binding and in compliance with any and all applicable laws, regulations,
orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Assignor’s expense.
5.3. Waiver of Claims
Except as
otherwise provided in this Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT’S TAKING POSSESSION OR THE COLLATERAL AGENT’S DISPOSITION OF
ANY OF THE
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COLLATERAL, IN EACH CASE AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES, and each Assignor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such
taking of possession or any such disposition except any damages which are the direct result of the Collateral Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable
decision);
(ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the
enforcement of the Collateral Agent’s rights hereunder; and
(iii) all rights of redemption, appraisement, valuation,
stay, extension or moratorium now or hereafter in force under any applicable law in order to prevent or delay the enforcement of this Agreement or the absolute sale of the Collateral or any portion thereof, and each Assignor, for itself and all who
may claim under it, insofar as it or they now or hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options
to purchase, or any other realization upon, any Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the relevant Assignor therein and thereto, and shall be a perpetual bar both at law and
in equity against such Assignor and against any and all Persons claiming or attempting to claim the Collateral so sold, optioned or realized upon, or any part thereof, from, through and under such Assignor.
5.4. Application of Proceeds
(a) All moneys collected by the Collateral Agent (or, to the extent any other Security Document requires proceeds of collateral under such other Security
Document to be applied in accordance with the provisions of this Agreement, the collateral agent under such other Security Document) upon any sale or other disposition of the Collateral, in connection with the Collateral Agent’s exercise of
remedies following the occurrence and during the continuance of an Event of Default, together with all other moneys received by the Collateral Agent hereunder or under any other Security Document, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral Agent of the type described in clauses (ii), (iii),
(iv) and (v) of the definition of “Obligations”;
(ii) second, to the extent proceeds remain
after the application pursuant to preceding clause (i), an amount equal to the outstanding Primary Obligations shall be paid to the Secured Creditors as provided in Section 5.4(e) hereof, with each such Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are insufficient to pay in full all Primary Obligations described above, each Secured Creditor shall receive its Pro Rata Share of the amount remaining to be distributed;
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(iii) third, to the extent proceeds remain after the application pursuant
to preceding clauses (i) and (ii), an amount equal to the outstanding Secondary Obligations shall be paid to the Secured Creditors as provided in Section 5.4(e) hereof, with each such Secured Creditor receiving an amount equal to its
outstanding Secondary Obligations or, if the proceeds are insufficient to pay in full all Secondary Obligations described above, each Secured Creditor shall receive its Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application pursuant to preceding clauses (i) through (iii),
inclusive, and following the termination of this Agreement pursuant to Section 8.8(a) hereof, to the relevant Assignor or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement: (i) “Pro Rata Share” shall mean, when calculating a Secured Creditor’s portion
of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor’s Primary Obligations or Secondary Obligations, as the case may be, and the
denominator of which is the then outstanding amount of all Primary Obligations or Secondary Obligations owing to the applicable Secured Creditors entitled thereto, as the case may be; (ii) “Primary Obligations” shall mean all
principal of, premium, fees and interest on, all Loans made to the Dutch Borrowers, all Unpaid Drawings (and all interest thereon) in respect of Letters of Credit issued for the account of a Dutch Borrower, the Stated Amount of (and the obligation
to cash collateralize) all outstanding Letters of Credit issued for the account of a Dutch Borrower and all Fees in respect of which a Dutch Borrower (in its capacity as such) is obligated; and (iii) “Secondary Obligations”
shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective
Pro Rata Shares, the amounts received by such Secured Creditors hereunder shall be applied (for purposes of making determinations under this Section 5.4 only) (i) first, to their Primary Obligations and
(ii) second, to their Secondary Obligations. If any payment to any Secured Creditor of its Pro Rata Share of any distribution would result in overpayment to such Secured Creditor, such excess amount shall instead be
distributed in respect of the unpaid Primary Obligations or Secondary Obligations, as the case may be, of the other Secured Creditors entitled to such distribution, with each such Secured Creditor whose Primary Obligations or Secondary Obligations,
as the case may be, have not been paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of such Secured Creditor
and the denominator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the benefits hereof and of the other Security Documents, agrees and acknowledges
that if the Secured Creditors receive (or are to receive) a distribution on account of undrawn amounts with respect to Letters of Credit issued under the Credit Agreement for the account of a Dutch Borrower (which shall only occur after all
outstanding Revolving Loans under the Credit Agreement of any Dutch Borrower and Unpaid Drawings of any Dutch Borrower have been paid in full), such amounts shall be paid to the Administrative Agent under the Credit Agreement and held by it, for the
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equal and ratable benefit of the Secured Creditors, as cash security for the repayment of Obligations owing to the Secured Creditors as such. If any amounts are held as cash security pursuant to
the immediately preceding sentence, then upon the termination of all outstanding Letters of Credit issued under the Credit Agreement and for the account of a Dutch Borrower, and after the application of all such cash security to the repayment of all
Obligations owing to the Secured Creditors after giving effect to the termination of all such Letters of Credit, if there remains any excess cash, such excess cash shall be returned by the Administrative Agent to the Collateral Agent for
distribution in accordance with Section 5.4(a) hereof.
(e) All payments required to be made hereunder shall be made to the
Administrative Agent for the account of the Secured Creditors.
(f) For purposes of applying payments received in accordance with this
Section 5.4, the Collateral Agent shall be entitled to rely upon the Administrative Agent for a determination (which the Administrative Agent agrees to provide upon request of the Collateral Agent) of the outstanding Primary Obligations and
Secondary Obligations owed to the Secured Creditors. Unless it has received written notice from a Secured Creditor to the contrary, the Administrative Agent, in furnishing information pursuant to the preceding sentence, and the Collateral Agent, in
acting hereunder, shall be entitled to assume that no Secondary Obligations are outstanding.
(g) It is understood that the Assignors
shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Obligations.
(h) It is understood and agreed by each Assignor and each Secured Creditor that the Collateral Agent shall have no liability for any
determinations made by it in this Section 5.4, in each case except to the extent resulting from the gross negligence or willful misconduct of the Collateral Agent (as determined by a court of competent jurisdiction in a final and non-appealable
decision). Each Assignor and each Secured Creditor also agrees that the Collateral Agent may (but shall not be required to), at any time and in its sole discretion, and with no liability resulting therefrom, petition a court of competent
jurisdiction regarding any application of Collateral in accordance with the requirements hereof, and the Collateral Agent shall be entitled to wait for, and may conclusively rely on, any such determination.
5.5. Remedies Cumulative
Each and every
right, power and remedy hereby specifically given to the Collateral Agent shall be in addition to every other right, power and remedy specifically given to the Collateral Agent under this Agreement, the other Secured Debt Agreements or now or
hereafter existing at law, in equity or by statute and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time or simultaneously and as often and in such order as may be
deemed expedient by the Collateral Agent. All such rights, powers and remedies shall be cumulative and the exercise or the beginning of the exercise of one shall not be deemed a waiver of the right to exercise any other or others. No delay or
omission of the Collateral Agent in the exercise of any such right, power or remedy and no renewal or extension of any of the Obligations shall impair any such right, power or remedy or shall be construed to be a waiver of any Default or Event of
Default or an acquiescence thereof. No notice to or demand on any Assignor in any case shall entitle it to any other or further notice or
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demand in similar or other circumstances or constitute a waiver of any of the rights of the Collateral Agent to any other or further action in any circumstances without notice or demand. In the
event that the Collateral Agent shall bring any suit to enforce any of its rights hereunder and shall be entitled to judgment, then in such suit the Collateral Agent may recover reasonable expenses, including reasonable attorneys’ fees, and the
amounts thereof shall be included in such judgment.
5.6. Discontinuance of Proceedings
In case the Collateral Agent shall have instituted any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Agent, then and in every such case the relevant Assignor, the Collateral Agent and each holder of any
of the Obligations shall be restored to their former positions and rights hereunder with respect to the Collateral subject to the security interest created under this Agreement, and all rights, remedies and powers of the Collateral Agent shall
continue as if no such proceeding had been instituted.
5.7. Subordination.
Each Assignor hereby agrees that, upon the occurrence and during the continuance of an Event of Default, unless otherwise agreed by the Administrative Agent,
all Indebtedness owing by it to any Subsidiary of the Company (other than any Subsidiary Guarantor) shall be fully subordinated to the indefeasible payment in full in cash of such Assignor’s Obligations.
ARTICLE VI
INDEMNITY
6.1. Indemnity
(a) Each Assignor
jointly and severally agrees to indemnify, reimburse and hold the Collateral Agent, each other Lender and their respective successors, assigns, employees, affiliates and agents (hereinafter in this Section 6.1 referred to individually as
“Indemnitee,” and collectively as “Indemnitees”) harmless, in accordance with Section 13.01(b) of the Credit Agreement, any and all liabilities, obligations, losses, damages (excluding damages, losses or
liabilities arising under any theory of liability for special, indirect, consequential or incidental damages (as opposed to direct or actual damages)), penalties, claims, actions (including removal or remedial actions), judgments, suits, costs,
expenses and disbursements (including reasonable and invoiced out-of-pocket attorneys’ and consultants’ fees and disbursements (but limited, in the case of attorneys’ fees and disbursements, to one counsel to the Indemnified Persons,
taken as a whole, one local counsel for the Indemnified Persons, taken as a whole, in each relevant jurisdiction, and, solely in the case of an actual or perceived conflict of interests, one additional counsel in each relevant jurisdiction to each
group of affected Indemnified Persons similarly situated, taken as a whole)) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (i) any investigation, litigation
or other proceeding (whether or not the Lead Arrangers, the Administrative Agent, the Collateral Agent, the Syndication Agents, the Documentation Agent, any Issuing Lender or any Lender is a party thereto and whether or not such investigation,
litigation or other proceeding is brought by or on
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behalf of any Credit Party) related to the entering into and/or performance of this Agreement or any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of the Transaction or any other transactions contemplated herein or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents or
(ii) (x) the handling of the Credit Account and Collateral of the Dutch Borrowers as provided in this Agreement or (y) the Agents’ and the Lenders’ relying on any instructions of Tesla B.V., or (z) any other action
taken by the Agents or the Lenders hereunder or under the other Credit Documents; provided that no Indemnitee shall be indemnified pursuant to this Section 6.1(a) for losses, damages or liabilities (a) to the extent caused by the
gross negligence or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision), (b) constituting taxes (other than taxes that represent losses, liabilities, claims, damages
or expenses arising from any non-tax claim) or (c) arising out of disputes solely between and among Indemnitees to the extent such disputes do not involve any act or omission of the Company or any of its Subsidiaries or any of their respective
Affiliates (other than claims against an Indemnitee acting in its capacity as Agent or Lender). Each Assignor agrees that upon written notice by any Indemnitee of the assertion of such a liability, obligation, damage, injury, penalty, claim, demand,
action, suit or judgment, the relevant Assignor shall assume full responsibility for the defense thereof. Each Indemnitee agrees to use its best efforts to promptly notify the relevant Assignor of any such assertion of which such Indemnitee has
knowledge.
(b) Without limiting the application of Section 6.1(a) hereof, each Assignor agrees, jointly and severally, to pay or
reimburse the Collateral Agent for any and all reasonable and invoiced out-of-pocket fees, costs and expenses of whatever kind or nature incurred in connection with the creation, preservation or protection of the Collateral Agent’s Liens on,
and security interest in, the Collateral, including, without limitation, all fees and taxes in connection with the recording or filing of instruments and documents in public offices, payment or discharge of any taxes or Liens upon or in respect of
the Collateral, premiums for insurance with respect to the Collateral and all other fees, costs and expenses in connection with protecting, maintaining or preserving the Collateral and the Collateral Agent’s interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising out of or relating to the Collateral.
(c) If and to the extent that the obligations of any Assignor under this Section 6.1 are unenforceable for any reason, such Assignor
hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
6.2. Indemnity Obligations Secured by Collateral; Survival
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement hereunder or under the other Credit Documents shall constitute
Obligations secured by the Collateral. The indemnity obligations of each Assignor contained in this Article VI shall continue in full force and effect notwithstanding the full payment of all of the other Obligations and notwithstanding the full
payment of all the Notes issued, and Loans made, under the Credit Agreement, the termination of all Letters of Credit issued under the Credit Agreement and the payment of all other Obligations and notwithstanding the discharge thereof and the
occurrence of the Termination Date.
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ARTICLE VII
DEFINITIONS
The following terms
shall have the meanings herein specified. Such definitions shall be equally applicable to the singular and plural forms of the terms defined.
“Account” shall mean any “account” as such term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York.
“Administrative Agent” shall have the meaning provided in the recitals of this
Agreement.
“Agreement” shall mean this Security Agreement, as the same may be amended, modified, restated and/or
supplemented from time to time in accordance with its terms.
“Assignor” shall have the meaning provided in the first
paragraph of this Agreement.
“Assignor Intellectual Property Rights” shall mean all Intellectual Property Rights owned
by Assignor, or licensable or sublicensable by Assignor without payment of any material consideration to any third party.
“Borrower” shall have the meaning provided in the recitals of this Agreement.
“Cash Collateral Account” shall mean a non-interest bearing cash collateral account maintained with, and in the sole dominion
and control of, the Collateral Agent for the benefit of the Secured Creditors.
“Chattel Paper” shall mean “chattel
paper” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York. Without limiting the foregoing, the term “Chattel Paper” shall in any event include all Tangible Chattel Paper and
all Electronic Chattel Paper.
“Collateral” shall have the meaning provided in Section 1.1(a) of this Agreement.
“Collateral Agent” shall have the meaning provided in the first paragraph of this Agreement.
“Company” shall have the meaning provided in the recitals of this Agreement.
“Contract Rights” shall mean all rights of any Assignor under each Contract, including, without limitation, (i) any and
all rights to receive and demand payments under any or all Contracts, (ii) any and all rights to receive and compel performance under any or all Contracts and (iii) any and all other rights, interests and claims now existing or in the
future arising in connection with any or all Contracts.
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“Contracts” shall mean all contracts between any Assignor and one or more
additional parties (including, without limitation, any Interest Rate Protection Agreements, Other Hedging Agreements, licensing agreements and any partnership agreements, joint venture agreements and limited liability company agreements).
“Credit Agreement” shall have the meaning provided in the recitals of this Agreement.
“Credit Document Obligations” shall have the meaning provided in the definition of “Obligations” in this Article
VII.
“Credit Documents” shall have the meaning provided in the Credit Agreement.
“DBNY” shall have the meaning provided in the first paragraph of this Agreement.
“Deposit Accounts” shall mean all “deposit accounts” as such term is defined in the Uniform Commercial Code as in
effect on the date hereof in the State of New York and all other demand, deposit, time, savings, cash management, passbook and similar accounts.
“Documents” shall mean “documents” as such term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York.
“Dutch Borrower” shall have the meaning provided in the recitals of this Agreement.
“Dutch Pledged Account” shall mean any “Collection Account” (as defined in the Dutch Receivables Security
Agreement) over which a security interest is granted by the Dutch Receivables Security Agreement in favor of the Collateral Agent.
“Dutch Pledged Inventory” shall mean any “Inventory” (as defined in the Dutch Inventory Security Agreement) over
which a security interest is granted by the Dutch Inventory Security Agreement in favor of the Collateral Agent.
“Electronic
Chattel Paper” shall mean “electronic chattel paper” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“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, and in any event, shall include, but shall not be limited to, all machinery, equipment, furnishings and fittings now or hereinafter owned by any Assignor, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
“Event of Default” shall mean any Event of Default
under, and as defined in, the Credit Agreement.
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“Excluded Assets” shall have the meaning provided in Section 1.1(b) of this
Agreement.
“Financial Assets” shall mean all present and future “financial assets” (as defined in Article 8 of
the UCC).
“General Intangibles” shall mean “general intangibles” as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
“Goods” shall mean “goods” as such
term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Indemnitee”
shall have the meaning provided in Section 6.1(a) of this Agreement.
“Instrument” shall mean
“instruments” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Intellectual Property Rights” shall mean any and all rights, anywhere in the world, related to, associated with or
constituting (i) patents, patent applications and patent rights; (ii) works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work registrations;
(iii) trade secrets, know-how, inventions, methods, processes, data, software (including source code and object code) and confidential information; (iv) trademarks, service marks and trade names, trade dress, logos, designs, fictitious
business names, domain names, social media and mobile identifiers and other business identifiers and other designations of origin (“Trademarks”); (v) any right analogous to those set forth in this definition and any other
intellectual property rights or proprietary rights anywhere in the world; and (vi) registrations, recordations, applications, divisionals, continuations, continuations-in-part, renewals, reissues and extensions of the foregoing (as and to the
extent applicable)
“Inventory” shall mean merchandise, inventory and goods, and all additions, substitutions and
replacements thereof and all accessions thereto, wherever located, together with all goods, supplies, incidentals, packaging materials, labels, materials and any other items used or usable in manufacturing, processing, packaging or shipping same, in
all stages of production from raw materials through work in process to finished goods, and all products and proceeds of whatever sort and wherever located any portion thereof which may be returned, rejected, reclaimed or repossessed by the
Collateral Agent from any Assignor’s customers, and shall specifically include all “inventory” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Lenders” shall have the meaning provided in the recitals of this Agreement.
“Letter-of-Credit Rights” shall mean “letter-of-credit rights” as such term is defined in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
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“Location” of any Assignor, shall mean such Assignor’s “location”
as determined pursuant to Section 9-307 of the UCC.
“Money” shall mean all present and future “money” (as
defined in Article 9 of the UCC).
“Non-Eligible Motor Vehicles” shall mean all motor vehicles other than those
constituting Eligible Inventory.
“Obligations” shall mean and include, as to any Assignor, all of the following:
(i) the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation, principal, premium, interest, reimbursement obligations under Letters of Credit, cash collateralization of outstanding Letters of Credit, fees, costs and indemnities (including, without
limitation, all interest, fees and expenses that accrue after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Assignor at the rate provided for in the
respective documentation, whether or not a claim for post-petition interest, fees or expenses is allowed in any such proceeding)) of such Assignor to the Secured Creditors, whether now existing or hereafter incurred under, arising out of, or in
connection with, each Credit Document to which such Assignor is a party (including, without limitation, in the event such Assignor is a Guarantor, all such obligations, liabilities and indebtedness of such Assignor under its Guaranty) and the due
performance and compliance by such Assignor with all of the terms, conditions and agreements contained in each such Credit Document (all such obligations, liabilities and indebtedness under this clause (i) being herein collectively called the
“Credit Document Obligations”);
(ii) any and all sums advanced by the Collateral Agent in order to
preserve the Collateral or preserve its security interest in the Collateral;
(iii) in the event of any proceeding for the
collection or enforcement of any indebtedness, obligations, or liabilities of such Assignor referred to in clauses (i), (ii) and (iii) above, after an Event of Default shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder, together with reasonable attorneys’ fees and court costs;
(iv) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement under Section 6.1 of
this Agreement; and
(v) all amounts owing to any Agent pursuant to any of the Credit Documents in its capacity as such;
it being acknowledged and agreed that the “Obligations” shall include extensions of credit of the types described above,
whether now existing or hereinafter incurred or extended from time to time after the date of this Agreement. In no event shall the Obligations of any Assignor include, nor shall any Collateral be applied to satisfy, any Obligations (as defined in
the Credit Agreement) of any U.S. Borrower or any U.S. Guarantor.
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“Payment Intangibles” shall mean “payment intangibles” as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Permits” shall mean,
to the extent permitted to be assigned by the terms thereof or by applicable law, all licenses, permits, consent, approval, rights, orders, variances, franchises or authorizations of or from any Governmental Authority or agency.
“Primary Obligations” shall have the meaning provided in Section 5.4(b) of this Agreement.
“Promissory Note” shall have the meaning provided in the Uniform Commercial Code as in effect in the State of New York.
“Pro Rata Share” shall have the meaning provided in Section 5.4(b) of this Agreement.
“Proceeds” shall mean all “proceeds” as such term is defined in the Uniform Commercial Code as in effect in the
State of New York on the date hereof and, in any event, shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Collateral Agent or any Assignor from time to time with
respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any Assignor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any person acting under color of Governmental Authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“Secondary Obligations” shall have the meaning provided in Section 5.4(b) of this Agreement.
“Secured Creditors” shall have the meaning provided in the recitals of this Agreement.
“Secured Debt Agreements” shall mean and include this (i) Agreement and (ii) the other Credit Documents.
“Securities Accounts” shall mean all present and future “securities accounts” (as defined in Article 8 of the UCC),
including all monies, “uncertificated securities,” and “securities entitlements” (each as defined in Article 8 of the UCC) contained therein.
“Security” shall mean all present and future “Securities” (as defined in Article 8 of the UCC).
“Security Entitlements” shall mean all present and future “security entitlements” (as defined in Article 8 of the
UCC).
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“Software” shall mean “software” as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New York.
“State” shall mean any state of the
United States.
“Supporting Obligations” shall mean any “supporting obligation” as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New York, now or hereafter owned by any Assignor, or in which any Assignor has any rights, and, in any event, shall include, but shall not be limited to all of such
Assignor’s rights in any Letter-of-Credit Right or secondary obligation that supports the payment or performance of, and all security for, any Account, Document, General Intangible or Instrument.
“Tangible Chattel Paper” shall mean “tangible chattel paper” as such term is defined in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
“Termination Date” shall have the meaning provided in
Section 8.8(a) of this Agreement.
“UCC” shall mean the Uniform Commercial Code as in effect from time to time in
the relevant jurisdiction.
ARTICLE VIII
MISCELLANEOUS
8.1.
Notices
Except as otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall
be in writing and shall be sent or delivered by mail, email, telecopy or courier service and all such notices and communications shall, when mailed, emailed, telecopied or sent by courier, be effective when received by the Collateral Agent or such
Assignor, as the case may be. All notices and other communications shall be in writing and addressed as follows:
| |
(a) |
if to any Assignor, c/o: |
Tesla Motors, Inc.
3500 Deer Creek Road
Palo
Alto, California 94304
Attention: Chief Financial Officer
Email: deepak@teslamotors.com and mike@teslamotors.com
Facsimile: 650-681-5203
with
copies to:
Tesla Motors, Inc.
3500 Deer Creek Road
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Palo Alto, California 94304
Attention: General Counsel
Email: tmaron@teslamotors.com and jchang@teslamotors.com
Facsimile: 650-681-5203
and
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto,
California 94304
Attention: Andrew J. Hirsch
Facsimile: 650-493-6811
Email:
ahirsch@wsgr.com
| |
(b) |
if to the Collateral Agent, at: |
Deutsche Bank AG New York Branch
60 Wall Street
New York, New
York 10005
Attention: Phelecia Parker
Email: Agency.Transactions@db.com
Facsimile: (904) 779-3080
| |
(c) |
if to any Secured Creditor other than the Collateral Agent, at such address as such Secured Creditor shall have specified in the Credit Agreement; |
or at such other address or addressed to such other individual as shall have been furnished in writing by any Person described above to the party required to
give notice hereunder.
8.2. Waiver; Amendment
Except as provided in Sections 8.8, 8.12 and 8.13 hereof and Section 13.12 of the Credit Agreement, none of the terms and conditions of this Agreement or
any other Security Document may be changed, waived, modified or varied in any manner whatsoever unless in writing duly signed by each Assignor directly affected thereby (it being understood that the addition or release of any Assignor hereunder or
under another Security Document shall not constitute a change, waiver, discharge or termination affecting any Assignor other than the Assignor so added or released) and the Collateral Agent (with the written consent of the Required Lenders).
8.3. Obligations Absolute
The
obligations of each Assignor hereunder shall remain in full force and effect without regard to, and shall not be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of
such Assignor; (b) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege under or in respect of this Agreement or any other Credit Document; or (c) any amendment to or modification of any other Secured Debt
Agreement or any security for any of the Obligations (in each case), whether or not such Assignor shall have notice or knowledge of any of the foregoing.
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8.4. Successors and Assigns
This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect, subject to release and/or
termination as set forth in Section 8.8 hereof, (ii) be binding upon each Assignor, its successors and assigns, provided however, that except as otherwise permitted by the Credit Agreement, no Assignor shall assign any of its
rights or obligations hereunder without the prior written consent of the Collateral Agent (with the consent of the Required Lenders), and (iii) inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of
the Collateral Agent, the other Secured Creditors and their respective successors, transferees and assigns. All agreements, statements, representations and warranties made by each Assignor herein or in any certificate or other instrument delivered
by such Assignor or on its behalf under this Agreement shall be considered to have been relied upon by the Secured Creditors and shall survive the execution and delivery of this Agreement and the other Secured Debt Agreements regardless of any
investigation made by the Secured Creditors or on their behalf.
8.5. Headings Descriptive
The headings of the several sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
8.6. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW 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). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURISDICTION OVER SUCH ASSIGNOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL
JURISDICTION OVER SUCH ASSIGNOR. EACH ASSIGNOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
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OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH ASSIGNOR AT ITS
ADDRESS FOR NOTICES AS PROVIDED IN SECTION 8.1 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN, HOWEVER, SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT UNDER THIS
AGREEMENT OR ANY SECURED CREDITOR TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY ASSIGNOR IN ANY OTHER JURISDICTION.
(b) EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE THAT ARE LOCATED IN THE COUNTY OF NEW YORK AND HEREBY FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
8.7.
Assignors’ Duties
It is expressly agreed, anything herein contained to the contrary notwithstanding, that each Assignor shall remain liable to
perform all of the obligations, if any, assumed by it with respect to the Collateral and the Collateral Agent shall not have any obligations or liabilities with respect to any Collateral by reason of or arising out of this Agreement, nor shall the
Collateral Agent be required or obligated in any manner to perform or fulfill any of the obligations of any Assignor under or with respect to any Collateral.
8.8. Termination; Release
(a) On
the Termination Date, this Agreement shall terminate (provided that all indemnities set forth herein including, without limitation in Section 6.1 hereof, shall survive such termination) and the Collateral Agent, at the request and
expense of the respective Assignor, will promptly execute and deliver to such Assignor a proper instrument or instruments (including Uniform Commercial Code termination statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) such of the Collateral as may be in the possession of the Collateral Agent and as has not theretofore been sold or
otherwise applied or released pursuant to this Agreement. As used in this Agreement, “Termination Date” shall mean the date upon which the Total Revolving Loan Commitment under the Credit Agreement has been terminated, all Loans and
Unpaid Drawings have been paid in full, all Letters of Credit have been terminated (or have been cash collateralized or backstopped by another letter of credit,
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in either case on terms and pursuant to arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such
cash collateral or backstop letter of credit to be in a stated amount equal to at least 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time)), and all other Credit Document Obligations (other than indemnities and
other contingent payment obligations under the Credit Documents which are not then due and payable) then due and payable have been paid in full.
(b) In the event that any part of the Collateral is (x) sold or otherwise disposed of (to a Person other than a Credit Party) in
connection with a sale or disposition not prohibited by the Credit Agreement, (y) constitutes or will constitute collateral in a financing permitted by Section 10.04(r), (s) or (v) of the Credit Agreement or (z) is otherwise
released at the direction of the Required Lenders (or all the Lenders if required by Section 13.12 of the Credit Agreement), the Collateral Agent, at the request and expense of such Assignor, will duly release from the security interest created
hereby (and will promptly execute and deliver such documentation, including termination or partial release statements, including UCC-3s, subordination agreements and the like in connection therewith to evidence the release of such item of Collateral
or to subordinate its interest in such item of Collateral) and assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or otherwise
disposed of, or released, and as may be in the possession of the Collateral Agent and has not theretofore been released pursuant to this Agreement. In the case of any sale or disposition of any Collateral not prohibited under the Credit Agreement
(unless sold to another Credit Party) or constituting Collateral in a financing permitted by Section 10.04(r), (s) or (v) of the Credit Agreement, the security interest created hereby on such Collateral shall be automatically released
without the need for further action by any Person. Furthermore, upon the release of any Dutch Guarantor from the Dutch Guaranty in accordance with the provisions thereof, such Assignor (and the Collateral at such time assigned by the respective
Assignor pursuant hereto) shall be automatically released from this Agreement, and the Collateral Agent, at the request and expense of such Assignor being released, will promptly execute and deliver such documentation, including termination or
partial release statements, including UCC-3s, and the like in connection therewith) and assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) the Collateral of such Assignor being released.
(c) At any time that an Assignor desires that the Collateral Agent take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 8.8(a) or (b), such Assignor shall deliver to the Collateral Agent a certificate signed by an Authorized Officer of such Assignor stating that the release of the respective Collateral is permitted pursuant to
such Section 8.8(a) or (b). At any time that Tesla B.V. or the respective Assignor desires that a Subsidiary of Tesla B.V. which has been released from the Dutch Guaranty be released hereunder as provided in the penultimate sentence of
Section 8.8(b) hereof, it shall deliver to the Collateral Agent a certificate signed by an Authorized Officer of Tesla B.V. and the respective Assignor stating that the release of the respective Assignor (and its Collateral) is permitted
pursuant to such Section 8.8(b).
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(d) The Collateral Agent shall have no liability whatsoever to any other Secured Creditor as the
result of any release of Collateral by it in accordance with, or which the Collateral Agent in good faith believes to be in accordance with, this Section 8.8.
8.9. Counterparts
This Agreement may be
executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with Tesla B.V. and the Collateral Agent. Delivery of an executed counterpart hereof by facsimile or electronic transmission shall be as effective as delivery of an original executed
counterpart hereof.
8.10. Severability
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
8.11. The Collateral Agent and the other Secured Creditors
The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly
understood and agreed that the obligations of the Collateral Agent as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this
Agreement and in Section 12 of the Credit Agreement and those arising under applicable law. The Collateral Agent shall act hereunder on the terms and conditions set forth herein and in Section 12 of the Credit Agreement.
8.12. Additional Assignors
It is
understood and agreed that any Dutch Subsidiary of Tesla B.V. that desires to become an Assignor hereunder, or is required to execute a counterpart of this Agreement after the date hereof pursuant to the requirements of the Credit Agreement or any
other Credit Document, shall become an Assignor hereunder by (x) executing a counterpart hereof and delivering same to the Collateral Agent or by executing a Joinder Agreement and delivering the same to the Collateral Agent, in each case as may
be requested by the Collateral Agent (provided such Joinder Agreement shall not require the consent of any Assignor), (y) delivering supplements to Annexes B through D, inclusive, hereto as are necessary to cause such Annexes to be
complete and accurate with respect to such additional Assignor on such date (it being understood that the first sentence of Section 2.6 shall be deemed to refer to the one year period prior to the date of the applicable Joinder Agreement) and
(z) taking all actions as specified in this Agreement as would have been taken by such Assignor had it been an original party to this Agreement, in each case with all documents required above to be delivered to the Collateral Agent and with all
documents and actions required above to be taken to the reasonable satisfaction of the Collateral Agent and upon such execution and delivery, such Subsidiary shall constitute an Assignor hereunder.
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8.13. Release of Assignors
If at any time all of the Equity Interests of any Assignor (or, to the extent any other Security Document requires releases thereunder to occur in accordance
with the provisions of this Agreement, the pledgor, transferor, mortgagor or other corresponding party under such other Security Document) owned by Tesla B.V. and its Subsidiaries (other than the Equity Interests of a Borrower) are sold (to a Person
other than Tesla B.V. or any of its Subsidiaries) in a transaction permitted pursuant to the Credit Agreement (and which does not violate the terms of any other Credit Document then in effect), then, at the request and expense Tesla B.V., the
respective Assignor shall be immediately released as an Assignor pursuant to this Agreement (and the Collateral Agent (or, to the extent any other Security Document requires releases thereunder to occur in accordance with the provisions of this
Agreement, the assignee, mortgagee or other corresponding party under such other Security Document) shall execute and deliver such instruments of release as are reasonably requested by Tesla B.V. and otherwise reasonably satisfactory to the
Collateral Agent). At any time Tesla B.V. desires that the Collateral Agent acknowledge that an Assignor has been released from this Agreement as provided in this Section 8.13, Tesla B.V. shall deliver to the Collateral Agent a certificate
signed by an Authorized Officer of Tesla B.V. stating that the release of the respective Assignor is permitted pursuant to this Section 8.13.
8.14. Intercreditor Agreement. This Agreement is subject to the Intercreditor Agreement at any time such Intercreditor Agreement is in
effect and is applicable to Dutch Credit Parties. In the event of a conflict between the terms of this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall control.
[Remainder of this page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by
their duly authorized officers as of the date first above written.
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| ASSIGNORS: |
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| TESLA MOTORS NETHERLANDS B.V., |
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Signature Page to Tesla Dutch. Security Agreement
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| Accepted and Agreed to:
DEUTSCHE BANK AG NEW YORK BRANCH, |
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Signature Page to Tesla Dutch. Security Agreement
ANNEX B
to
SECURITY AGREEMENT
SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION, JURISDICTION OF ORGANIZATION
LOCATION AND ORGANIZATIONAL IDENTIFICATION NUMBERS AND FEDERAL EMPLOYER IDENTIFICATION NUMBERS
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Type of Organization (or, if the Assignor
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Jurisdiction of Organization |
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ANNEX C
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SECURITY AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
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Assignor |
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Trade and/or
Fictitious Names |
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ANNEX D
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SECURITY AGREEMENT
DESCRIPTION OF CERTAIN SIGNIFICANT TRANSACTIONS OCCURRING WITHIN
ONE YEAR PRIOR TO THE DATE OF THE SECURITY AGREEMENT
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| Name of Assignor |
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Description of any Transactions as required by
Section 2.6 of this Security Agreement |
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EXHIBIT I-4
FORM OF U.S. SECURITY AGREEMENT
[Provided under Separate Cover]
EXHIBIT I-4
FORM OF U.S. SECURITY AGREEMENT
among
TESLA MOTORS, INC.,
CERTAIN SUBSIDIARIES OF TESLA MOTORS, INC.,
and
DEUTSCHE BANK AG NEW YORK
BRANCH,
as COLLATERAL AGENT
Dated as of
June 10, 2015
TABLE OF CONTENTS
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| ARTICLE I SECURITY INTERESTS |
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2 |
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| 1.1. Grant of Security Interests |
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2 |
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| 1.2. Grant of License |
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5 |
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| 1.3. Power of Attorney |
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| 1.4. Keepwell |
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6 |
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| ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS |
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| 2.1. Necessary Filings |
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| 2.2. No Liens |
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| 2.3. Other Financing Statements |
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| 2.4. Chief Executive Office, Record Locations |
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| 2.5. Legal Names; Type of Organization; Jurisdiction of Organization; Location; Organizational.
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| Identification Numbers; Federal
Employer Identification Number; Changes Thereto; etc. |
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| 2.6. Trade Names; etc. |
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| 2.7. Certain Significant Transactions |
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| 2.8. Collateral in the Possession of a Bailee |
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| 2.9. Recourse |
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| ARTICLE III SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL |
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| 3.1. Additional Representations and Warranties |
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| 3.2. Maintenance of Records |
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| 3.3. Direction to Account Debtors; Contracting Parties; etc. |
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| 3.4. Modification of Terms; etc. |
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| 3.5. Collection |
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| 3.6. Instruments |
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| 3.7. Assignors Remain Liable Under Accounts |
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| 3.8. Assignors Remain Liable Under Contracts |
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| 3.9. Letter-of-Credit Rights |
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| 3.10. Chattel Paper |
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| 3.11. Further Actions |
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| ARTICLE IV PROVISIONS CONCERNING ALL COLLATERAL |
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| 4.1. Protection of Collateral Agent’s Security |
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| 4.2. Additional Information; Documents |
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| 4.3. Financing Statements |
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| ARTICLE V REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT |
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| 5.1. Remedies; Obtaining the Collateral Upon Default |
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| 5.2. Remedies; Disposition of the Collateral |
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| 5.3. Waiver of Claims |
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| 5.4. Application of Proceeds |
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| 5.5. Remedies Cumulative |
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| 5.6. Discontinuance of Proceedings |
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| 5.7. Subordination |
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| ARTICLE VI INDEMNITY |
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| 6.1. Indemnity |
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| 6.2. Indemnity Obligations Secured by Collateral; Survival |
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| ARTICLE VII DEFINITIONS |
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| ARTICLE VIII MISCELLANEOUS |
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| 8.1. Notices |
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| 8.2. Waiver; Amendment |
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| 8.3. Obligations Absolute |
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| 8.4. Successors and Assigns |
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| 8.5. Headings Descriptive |
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| 8.6. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. |
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| 8.7. Assignors’ Duties |
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| 8.8. Termination; Release |
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| 8.9. Counterparts |
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| 8.10. Severability |
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| 8.11. The Collateral Agent and the other Secured Creditors |
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| 8.12. Additional Assignors |
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| 8.13. Release of Assignors |
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| 8.14. Intercreditor Agreement |
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| ANNEX A |
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Schedule of Chief Executive Offices Address(es) of Chief Executive Office |
| ANNEX B |
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Schedule of Legal Names, Type of Organization, Jurisdiction of Organization, Location and Organizational Identification Numbers |
| ANNEX C |
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Schedule of Trade and Fictitious Names |
| ANNEX D |
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Description of Certain Significant Transactions Occurring Within One Year Prior to the Date of the Security Agreement |
| ANNEX E |
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Schedule of Equipment |
U.S. SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of June 10, 2015, made by each of the undersigned assignors (each, an “Assignor” and,
together with any other entity that becomes an assignor hereunder pursuant to Section 8.12 hereof, the “Assignors”) in favor of DEUTSCHE BANK AG NEW YORK BRANCH (in its individual capacity, and any successor corporation thereto
by merger, consolidation or otherwise, “DBNY”), as collateral agent (together with any successor collateral agent, the “Collateral Agent”), for the benefit of the Secured Creditors (as defined below). Certain
capitalized terms as used herein are defined in Article VII hereof. Except as otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Tesla Motors, Inc., a Delaware corporation (the “Company”, 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., a company organized under the laws of the Netherlands (“Tesla
B.V.” and, together with each other Wholly-Owned Dutch Subsidiary of the Tesla B.V. that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”; and the Dutch Borrowers,
together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc.
and Bank of America, N.A., as Syndication Agents, Wells Fargo Bank, National Association, as Documentation Agent, and DBNY, as administrative agent (in such capacity, together with any successor administrative agent, the “Administrative
Agent”) and as collateral agent (in such capacity, together with any successor collateral agent, the “Collateral Agent”), have entered into an ABL Credit Agreement, dated as of June 10, 2015 (as amended, modified,
restated and/or supplemented from time to time, the “Credit Agreement”), providing for the making of Loans to the Borrowers, and the issuance of, and participation in, Letters of Credit for the account of the Borrowers, all as
contemplated therein (the Lenders, each Issuing Lender, the Administrative Agent and the Collateral Agent are herein called the “Lender Creditors”);
WHEREAS, the Company and/or one or more of its Subsidiaries have entered into, or may at any time and from time to time on or after the
Effective Date enter into, one or more Secured Hedging Agreements with one or more Lender Counterparties (the “Secured Hedging Creditors”);
WHEREAS, the Company and/or one or more of its Subsidiaries and any Lender (and/or one or more of its banking affiliates) reasonably
acceptable to the Administrative Agent, in each case designated to the Administrative Agent in writing by the Company as a provider of Treasury Services (as defined below) (collectively, the “Treasury Services Creditors” and,
together with the Lender Creditors and the Secured Hedging Creditors, the “Secured Creditors”), have entered into, or in the future may enter into, arrangements to provide treasury, depositary or cash management services (including
without limitation, overnight overdraft services), credit, debit or store-value cards (including commercial cards (including so-called “purchase cards”,
procurement cards or “p-cards”)), credit card processing services and/or automated clearinghouse transfers of funds to the Company and its Subsidiaries (collectively, “Treasury
Services,” and with any written agreement evidencing such arrangements, as amended, modified, supplemented, replaced or refinanced from time to time, herein called a “Treasury Services Agreement”), where such Treasury
Services Agreements may be evidenced by standard account terms of the respective Treasury Services Creditor;
WHEREAS, pursuant to the
U.S. Guaranty, each Assignor has jointly and severally guaranteed to the Secured Creditors the payment when due of all Guaranteed Obligations as described (and defined) therein on the terms and conditions set forth therein;
WHEREAS, it is a condition precedent to (i) the making of Loans to the Borrowers, and the issuance of (and participation in) Letters of
Credit for the account of the Borrowers, in each case under the Credit Agreement, (ii) the Secured Hedging Creditors entering into Secured Hedging Agreements with the Company and/or its Subsidiaries and (iii) the extension of the Treasury
Services by Treasury Services Creditors to the Company and/or its Subsidiaries that each Assignor shall have executed and delivered to the Collateral Agent this Agreement; and
WHEREAS, each Assignor will benefit from the incurrence of Loans by the Borrowers and the issuance of (and participation in) Letters of Credit
for the account of the Borrowers under the Credit Agreement and the entering into by the Company and/or its Subsidiaries of Secured Hedging Agreements with the Secured Hedging Creditors and the extension of Treasury Services to the Company and its
Subsidiaries and, accordingly, desires to execute this Agreement in order to (i) satisfy the condition described in the preceding paragraph and (ii) induce (x) the Lenders to make Loans to the Borrowers and issue (and/or participate
in) Letters of Credit for the respective accounts of the Borrowers, (y) the Secured Hedging Creditors to enter into Secured Hedging Agreements with the Company and/or its Subsidiaries and (z) the Treasury Services Creditors to provide
Treasury Services to the Company and/or its Subsidiaries pursuant to Treasury Services Agreements;
NOW, THEREFORE, in consideration of
the foregoing and other benefits accruing to each Assignor, the receipt and sufficiency of which are hereby acknowledged, each Assignor hereby makes the following representations and warranties to the Collateral Agent for the benefit of the Secured
Creditors and hereby covenants and agrees with the Collateral Agent for the benefit of the Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1.
Grant of Security Interests.
(a) As security for the prompt and complete payment and performance when due of all of its Obligations, each
Assignor does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property
(and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
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(i) |
each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General
Intangible) to the extent related to any Account); |
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(ii) |
all cash and Money arising from an Account; |
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(iii) |
the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; |
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(iv) |
all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto,
(y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) commodity accounts and all
cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto; in each case to the extent (i) holding Designated Cash, (ii) subject to a Cash Management Control Agreement or (iii) otherwise
subject to a control agreement in form and substance reasonably satisfactory to the Administrative Agent giving the Collateral Agent “control” (within the meaning of the UCC). |
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(v) |
all Promissory Notes relating to any Account; |
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(vi) |
all Equipment set forth on Annex E as such Annex may be amended, restated, modified or otherwise supplemented from time to time; |
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all Payment Intangibles relating to any Account; |
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(ix) |
to the extent relating to, evidencing or governing any of the items referred to in preceding clauses (i) through (viii), all Permits, Documents, General Intangibles (excluding all Intellectual Property Rights and
contracts related thereto), Chattel Paper, Instruments, Letter-of-Credit Rights, related letters of credit, guarantees and collateral liens, documents of title, customs receipts, insurance, shipping and other documents and other materials related to
the foregoing (including to the purchase or import of any Inventory); |
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(x) |
to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (ix), all Supporting Obligations; |
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(xi) |
all books and records relating to the items referred to in the preceding clauses (i) through (x) (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any
information relating to any of the items referred to in the preceding clauses (i) through (x)); and |
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(xii) |
all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance
proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above described in the preceding clauses (i) through (xii), the
“Collateral”). |
(b) Notwithstanding anything herein to the contrary, in no event shall the security
interest and lien granted under Section 1.1(a) hereof attach to, and in no event shall the term “Collateral” (and the component terms thereof) include, (i) any property, interest or other rights for so long as the grant of such
security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation
which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 of the UCC (or
any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including the Bankruptcy Code) or principles of equity), (C) require consent of a Governmental Authority or any other Person (other than
consent of the Company or any of its Subsidiaries) to permit the grant of a security interest therein (and such consent has not been obtained) or (D) materially adverse tax consequences as reasonably determined by the Company; provided,
however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach
immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B), (C) or (D) above; (ii) any property, interest or other rights with respect to which, in the
reasonable determination of the Administrative Agent, expressed in writing, the cost or other consequences of granting a security interest in favor of the Secured Creditors is excessive in relation to the value afforded thereby;
(iii) Non-Eligible Motor Vehicles, airplanes and other assets subject to certificates of title; (iv) Equity Interests; (v) Securitization Related Assets; (vi) all interests in Real Property; (vii) Gigafactory Assets,
(viii) Accounts that are identifiable proceeds of the sale or other disposition of property that is not Collateral, (ix) intercompany Accounts outstanding on the Effective Date and (x) Intellectual Property Rights (the assets
described in preceding clauses (i) through (x) hereof, collectively, the “Excluded Assets”).
(c) The security
interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
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Notwithstanding anything herein to the contrary, the Assignors make no representations or warranties hereunder,
and the covenants hereunder shall not apply, in respect of the Excluded Assets.
1.2. Grant of License.
(a) For purposes of enabling the Collateral Agent to exercise rights and remedies under this Agreement each Assignor hereby grants to the
Collateral Agent and its agents, representatives and designees:
(i) an irrevocable, nonexclusive, royalty free license, rent-free license
and rent-free lease (which will be binding on any successor or assignee of such Assignor) to, after the occurrence and during the continuance of an Event of Default have access to and use all of such Assignor’s Real Property (including the
buildings and other improvements thereon), Equipment and fixtures (whether or not considered Real Property); and
(ii) under any Assignor
Intellectual Property Rights, subject to the limitations set forth below, an irrevocable, non-exclusive, royalty free, paid-up, sublicensable (solely as necessary for Collateral Agent to exercise its rights hereunder and not for the independent or
unrelated use of any third party) license, for the sole purpose of operating such Assignor’s Business, including completing the production of Inventory and selling the same, in accordance with this Agreement. Collateral Agent hereby agrees to
take all commercially reasonable actions in connection with its exercise of such license to protect such Assignor’s rights and interest in such Intellectual Property Rights. To the extent Collateral Agent exercises the foregoing license with
respect to Assignor’s Trademarks, (i) all goodwill arising from such use shall inure to the sole benefit of Assignor and (ii) Collateral Agent shall not use the Trademarks in a manner that detracts from the goodwill associated
therewith. Collateral Agent shall take all reasonable steps under the circumstances to protect any confidential information or trade secrets licensed hereunder.
(b) Except as provided above, the Collateral Agent shall not have any liability to Assignor in connection with its exercise of the foregoing
licenses, other than liability which is the direct result of the Collateral Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable decision), for the purpose of
(i) arranging for and effecting the sale, distribution or other disposition of Collateral located on any such Real Property, including the manufacture, production, completion, packaging, advertising, distribution and other preparation of such
Collateral (including, without limitation, work-in-process, raw materials and complete Inventory) for sale, distribution or other disposition, (ii) selling Collateral (by public auction, private sale, going out of business sale or similar sale,
whether in bulk, in lots or to customers in the ordinary course of business or otherwise and which sale may include augmented Inventory of the same type sold in any Assignor’s business), (iii) storing or otherwise dealing with the
Collateral, (iv) collecting all Accounts and copying, using and preserving any and all information relating to the Collateral, and (v) otherwise dealing with the Collateral as part of the exercise of any rights or remedies provided to the
Collateral Agent hereunder or under the other Credit Documents, in each case without the interference by any Assignor or any other Subsidiary of the Company and without incurring any liability to any Assignor or any other Subsidiary of the Company,
except any liability which is the direct result of the Collateral Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
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(c) Each Assignor will, and will cause each of its Subsidiaries to, cooperate with the Collateral
Agent and its agents, representatives and designees in allowing the Collateral Agent to exercise the foregoing rights. To the extent that any asset of any Assignor in which the Collateral Agent has access or use rights as provided above is to be
sold or otherwise disposed of after the occurrence and during the continuance of an Event of Default, such Assignor shall, if requested by the Collateral Agent in writing, cause the buyer to agree in writing to be subject to, and comply with the
terms of, this Section 1.2. The Collateral Agent shall have the right to bring an action to enforce its rights under this Section 1.2, including, without limitation, an action seeking possession of the applicable Collateral and/or specific
performance of this Section 1.2.
If the grant of the above leases and licenses by an Assignor would breach any agreement with a third party, the
affected Assignor shall promptly notify the Collateral Agent in writing. In such event, the above leases and licenses shall be deemed effective to the fullest extent permitted without causing such a breach, and, at the Collateral Agent’s
request, the affected Assignor shall use commercially reasonable efforts to obtain all third-party consents required to effect fully the above leases and licenses. The affected Assignor shall pay all reasonable out-of-pocket expenses in connection
with obtaining any such consents.
1.3. Power of Attorney.
Until this Agreement is terminated in accordance with its terms, each Assignor hereby constitutes and appoints the Collateral Agent its true and lawful
attorney, irrevocably, with full power after the occurrence of and during the continuance of an Event of Default (in the name of such Assignor or otherwise) to act, require, demand, receive, compound and give acquittance for any and all moneys and
claims for moneys due or to become due to such Assignor under or arising out of the Collateral, to endorse any checks or other instruments or orders in connection therewith and to file any claims or take any action or institute any proceedings which
the Collateral Agent may deem to be necessary or advisable to protect the interests of the Secured Creditors, which appointment as attorney is coupled with an interest.
1.4. Keepwell.
Each Qualified Keepwell
Provider hereby jointly and severally absolutely, unconditionally, and irrevocably undertakes to provide such funds or other support as may be needed by each other Credit Party for such Credit Party to qualify as an “eligible contract
participant” under the Commodity Exchange Act or any regulations promulgated thereunder at any time during the Swap Guarantee Eligibility Period in respect of any Swap Obligation (provided, however, that each Qualified Keepwell
Provider shall only be liable under this Section 1.4 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 1.4, or otherwise under any relevant grant of security interest,
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of such Qualified Keepwell Provider under this Section 1.4 shall remain in full force and effect until each
Assignor has been released from its obligations under this Agreement pursuant to Section 8.8. Each Qualified Keepwell Provider intends that this Section 1.4 constitute, and this Section 1.4 shall be deemed to constitute, a
“keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
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ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as
follows:
2.1. Necessary Filings.
The provisions of this Agreement (when executed and delivered by all parties thereto) are effective to create in favor of the Collateral Agent, for the benefit
of the Secured Creditors, a legal, valid and enforceable security interest in all right, title and interest of such Assignor in all of the Collateral of such Assignor described herein, and when proper UCC financing statements have been filed in the
appropriate filing offices against each Assignor and/or the Collateral Agent has obtained “control” (within the meaning of the UCC) of the Core Deposit Accounts and DB Accounts thereunder, the Collateral Agent, for the benefit of the
Secured Creditors, shall have a perfected security interest in all right, title and interest in all of the Collateral described herein of such Assignor to the extent such security interest can be perfected by filing a UCC financing statement under
the UCC or, with respect to the Core Deposit Accounts or DB Accounts, by the Collateral Agent having “control”, subject to no other Liens other than Permitted Liens (it being understood that the Permitted Liens described in
Section 10.01(s) of the Credit Agreement are subject to the terms of the Intercreditor Agreement at any time that Permitted Additional Secured Indebtedness is outstanding).
2.2. No Liens.
Such Assignor is, and as
to all Collateral acquired by it from time to time after the date hereof such Assignor will be, the owner of all Collateral free from any Lien, security interest, encumbrance or other right, title or interest of any Person (other than Permitted
Liens), and such Assignor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein adverse to the Collateral Agent (other than Permitted Liens).
2.3. Other Financing Statements.
As of
the date hereof, there is no financing statement (or similar statement or instrument of registration under the law of any relevant jurisdiction) covering or purporting to cover any interest of any kind in the Collateral (other than financing
statements, similar statements or instruments of registration filed in respect of Permitted Liens), and so long as the Termination Date has not occurred, such Assignor will not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interests granted
hereby by such Assignor or in connection with Permitted Liens.
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2.4. Chief Executive Office, Record Locations.
The chief executive office of such Assignor is, on the date of this Agreement, located at the address indicated on Annex A hereto for such Assignor. During the
period of the four calendar months preceding the date of this Agreement, the chief executive office of such Assignor has not been located at any address other than that indicated on Annex A hereto in accordance with the immediately preceding
sentence, in each case unless each such other address is also indicated on Annex A hereto for such Assignor.
2.5. Legal Names; Type of
Organization; Jurisdiction of Organization; Location; Organizational Identification Numbers; Federal Employer Identification Number; Changes Thereto; etc.
As of the date hereof, the exact legal name of each Assignor, the type of organization of such Assignor, the jurisdiction of organization of such Assignor,
such Assignor’s Location, the organizational identification number (if any) of such Assignor, the Federal Employer Identification Number (if any), is listed on Annex B hereto for such Assignor. Such Assignor shall not change its legal name, its
type of organization, its jurisdiction of organization, its Location, its organizational identification number (if any) or its Federal Employer Identification Number (if any) from that used on Annex B hereto, except that any such changes shall be
permitted (so long as not in violation of the applicable requirements of the Credit Documents and so long as same do not involve such Assignor changing its jurisdiction of organization or Location from the United States or a State thereof to a
jurisdiction of organization or Location, as the case may be, outside the United States or a State thereof) if (i) it shall have given to the Collateral Agent not less than 10 days’ prior written notice (or such shorter period of time as
may be agreed by the Collateral Agent in its discretion) of each change to the information listed on Annex B hereto (as adjusted for any subsequent changes thereto previously made in accordance with this sentence), together with a supplement to
Annex B hereto which shall correct all information contained therein for such Assignor, and (ii) in connection with the respective change or changes, it shall have taken all action reasonably necessary or requested by the Collateral Agent to
maintain the security interests of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. In addition, to the extent that such Assignor does not have an organizational
identification number on the date hereof and later obtains one, such Assignor shall promptly thereafter notify the Collateral Agent of such organizational identification number and shall take all actions reasonably requested by the Collateral Agent
to the extent necessary to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby fully perfected and in full force and effect.
2.6. Trade Names; etc.
As of the date
hereof, such Assignor does not have or operate in any jurisdiction under, or in the five years preceding the date hereof has not had or has not operated in any jurisdiction under, any trade names, fictitious names or other names except its legal
name as specified in Annex B hereto and such other trade or fictitious names as are listed on Annex C hereto for such Assignor.
2.7.
Certain Significant Transactions.
During the one year period preceding the date of this Agreement, no Person shall have merged or consolidated with
or into any Assignor, and no Person shall have liquidated into, or transferred all or substantially all of its assets to, any Assignor, in each case except as described
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in Annex D hereto. With respect to any transactions so described in Annex D hereto , the respective Assignor shall have furnished such information reasonably requested by the Collateral Agent
with respect to the Person (and the assets of the Person and locations thereof) which merged with or into or consolidated with such Assignor, or was liquidated into or transferred all or substantially all of its assets to such Assignor, and shall
have furnished, or caused to be furnished, to the Collateral Agent such UCC lien searches as may have been requested by the Collateral Agent with respect to such Person and its assets, to establish that no security interest (excluding Permitted
Liens) continues perfected on the date hereof with respect to any Person described above (or the assets transferred to the respective Assignor by such Person), including without limitation pursuant to Section 9-316(a)(3) of the UCC.
2.8. Collateral in the Possession of a Bailee.
Without limiting the provisions of the Credit Agreement, if an Event of Default shall occur and be continuing and if any Inventory constituting Collateral or
other Goods constituting Collateral, other than such Inventory or Goods having a market value not in excess of $5,000,000 in the aggregate, are in the possession of a bailee, such Assignor shall promptly notify the Collateral Agent thereof and, if
requested by the Collateral Agent, shall use its commercially reasonable efforts to promptly obtain an acknowledgment from such bailee, in form and substance reasonably satisfactory to the Collateral Agent, that the bailee holds such Collateral for
the benefit of the Collateral Agent and shall act upon the instructions of the Collateral Agent, without the further consent of such Assignor. The Collateral Agent agrees with such Assignor that the Collateral Agent shall not give any such
instructions unless an Event of Default has occurred and is continuing.
2.9. Recourse.
This Agreement is made with full recourse to each Assignor and pursuant to and upon all the warranties, representations, covenants and agreements on the part
of such Assignor contained herein and in the other Secured Debt Agreements and otherwise in writing in connection herewith or therewith.
ARTICLE III
SPECIAL PROVISIONS
CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
3.1. Additional Representations and
Warranties.
As of the time when each of its Eligible Accounts arises, each Assignor shall be deemed to have represented and warranted that each such
Eligible Account, and all records, papers and documents relating thereto (if any) are genuine and what they purport to be in all material respects, and that all papers and documents (if any) relating thereto (i) will, to the knowledge of a
Responsible Officer of such Assignor, represent the genuine, legal, valid and binding obligation of the account debtor evidencing indebtedness unpaid and owed by the respective account debtor arising out of the performance of labor or services or
the sale or lease and delivery of the merchandise listed therein, or both, enforceable against the account debtor in accordance with its terms, subject to applicable bankruptcy, insolvency or other similar laws generally affecting creditors’
rights and equitable principles (regardless of whether enforcement
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is sought in equity or at law), (ii) will be the only original writings evidencing and embodying such obligation of the account debtor named therein (other than copies created for general
accounting or other ordinary corporate purposes), and (iii) will be in compliance and will conform in all material respects with all applicable federal, state and local laws and applicable laws of any relevant foreign jurisdiction.
3.2. Maintenance of Records.
Each
Assignor will keep and maintain at its own cost and expense accurate records of its Accounts and Contracts, in accordance with Section 9.02 of the Credit Agreement, and such Assignor will make the same available on such Assignor’s premises
to the Collateral Agent for inspection in accordance with Section 9.02 of the Credit Agreement. Upon the occurrence and during the continuance of an Event of Default and at the request of the Collateral Agent, such Assignor shall, at its own
cost and expense, deliver copies (or, if requested by the Collateral Agent after the occurrence and during the continuance of an Event of Default, originals) of all tangible evidence of its Accounts and Contract Rights (including, without
limitation, all documents evidencing the Accounts and all Contracts) and such books and records to the Collateral Agent or to its representatives (copies of such evidence and books and records may be retained by such Assignor). Upon the occurrence
and during the continuance of an Event of Default and if the Collateral Agent so directs, such Assignor shall legend, in form and manner reasonably satisfactory to the Collateral Agent, the Accounts and the Contracts, as well as books, records and
documents (if any) of such Assignor evidencing or pertaining to such Accounts and Contracts with an appropriate reference to the fact that such Accounts and Contracts have been assigned to the Collateral Agent and that the Collateral Agent has a
security interest therein.
3.3. Direction to Account Debtors; Contracting Parties; etc.
Upon the occurrence and during the continuance of an Event of Default (but without limiting the provisions of the Credit Agreement), if the Collateral Agent so
directs any Assignor, such Assignor agrees (x) to cause all payments on account of the Accounts and Contracts to be made directly to the Cash Collateral Account, (y) that the Collateral Agent may, at its option, directly notify the
obligors with respect to any Accounts and/or under any Contracts to make payments with respect thereto as provided in the preceding clause (x), and (z) that the Collateral Agent may enforce collection of any such Accounts and Contracts and may
adjust, settle or compromise the amount of payment thereof, in the same manner and to the same extent as such Assignor. Without notice to or assent by any Assignor, the Collateral Agent may, upon the occurrence and during the continuance of an Event
of Default, apply any or all amounts then in, or thereafter deposited in, the Cash Collateral Account toward the payment of the Obligations in the manner provided in Section 5.4 of this Agreement. The reasonable and invoiced out-of-pocket costs
and expenses of collection (including reasonable and invoiced out-of-pocket attorneys’ fees), whether incurred by an Assignor or the Collateral Agent, shall be borne by the relevant Assignor. The Collateral Agent shall promptly deliver a copy
of each notice given to any such obligors referred to in the preceding clause (y) to the relevant Assignor, provided that (x) the failure by the Collateral Agent to so notify such Assignor shall not affect the effectiveness of such
notice or the other rights of the Collateral Agent created by this Section 3.3 and (y) no such notice shall be required if an Event of Default of the type described in Section 11.05 of the Credit Agreement has occurred and is
continuing.
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3.4. Modification of Terms; etc.
Except (w) in accordance with such Assignor’s ordinary course of business, (x) as otherwise in such Assignor’s reasonable business
judgment, (y) as permitted by the Credit Agreement or (z) as permitted by Section 3.5 hereof, no Assignor shall rescind or cancel any indebtedness evidenced by any Account or under any Contract constituting Collateral, or
modify any term thereof or make any adjustment with respect thereto, or extend or renew the same, or compromise or settle any dispute, claim, suit or legal proceeding relating thereto, without the prior written consent of the Collateral Agent.
Except to the extent otherwise permitted by this Agreement or the Credit Agreement, no Assignor will do anything to impair in any material respect the rights of the Collateral Agent in the Accounts or Contracts.
3.5. Collection.
Except as such Assignor
otherwise determines in its reasonable business judgment, each Assignor shall endeavor in accordance with reasonable business practices to cause to be collected from the account debtor named in each of its Accounts or obligor under any Contract
constituting Collateral, as and when due (including, without limitation, amounts which are delinquent, such amounts to be collected in accordance with generally accepted lawful collection procedures) any and all amounts owing under or on account of
such Account or Contract, and apply promptly upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account or under such Contract constituting Collateral. Except as otherwise directed by the Collateral
Agent after the occurrence and during the continuation of an Event of Default, any Assignor may allow in the ordinary course of business as adjustments to amounts owing under its Accounts and Contracts constituting Collateral (i) an extension
or renewal of the time or times of payment, or settlement for less than the total unpaid balance, which such Assignor finds appropriate in accordance with its reasonable business judgment, (ii) a refund or credit due as a result of returned or
damaged merchandise or improperly performed services or for other reasons which such Assignor finds appropriate in accordance with its reasonable business judgment and (iii) such other adjustments which such Assignor finds appropriate in
accordance with its reasonable business judgment.
3.6. Instruments.
If any Assignor owns or acquires any Instrument of $5,000,000 or more constituting Collateral (other than checks and other payment instruments received and
collected in the ordinary course of business), such Assignor will within 30 days thereafter notify the Collateral Agent thereof, and upon request by the Collateral Agent will promptly deliver such Instrument to the Collateral Agent appropriately
endorsed to the order of the Collateral Agent.
3.7. Assignors Remain Liable Under Accounts.
Anything herein to the contrary notwithstanding, the Assignors shall remain liable under each of the Accounts to observe and perform all of the conditions and
obligations to be observed and performed by them thereunder, all in accordance with the terms of any agreement giving rise to such Accounts. Neither the Collateral Agent nor any other Secured Creditor shall have any obligation or liability under any
Account (or any agreement giving rise thereto) by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to such Account pursuant hereto, nor shall the Collateral Agent
or any other Secured Creditor be obligated in any manner to perform any of the obligations of any
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Assignor under or pursuant to any Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by them or
as to the sufficiency of any performance by any party under any Account (or any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.8. Assignors Remain Liable Under Contracts.
Anything herein to the contrary notwithstanding, the Assignors shall remain liable under each of the Contracts constituting Collateral to observe and perform
all of the conditions and obligations to be observed and performed by them thereunder, all in accordance with and pursuant to the terms and provisions of each such Contract. Neither the Collateral Agent nor any other Secured Creditor shall have any
obligation or liability under any Contract by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to such Contract pursuant hereto, nor shall the Collateral Agent or
any other Secured Creditor be obligated in any manner to perform any of the obligations of any Assignor under or pursuant to any Contract, to make any payment, to make any inquiry as to the nature or the sufficiency of any performance by any party
under any Contract, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.
3.9. Letter-of-Credit Rights.
If any
Assignor is at any time a beneficiary under a letter of credit constituting Collateral in respect of Eligible Accounts, Eligible Machinery and Equipment or Eligible Inventory, with a stated amount of $5,000,000 or more in the aggregate, such
Assignor shall, no later than the next date required to deliver a compliance certificate pursuant to Section 9.01(d) of the Credit Agreement, notify the Collateral Agent thereof and, at the request of the Collateral Agent, such Assignor shall,
pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, use its commercially reasonable efforts to (i) arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the
Collateral Agent of the proceeds of any drawing under such letter of credit or (ii) arrange for the Collateral Agent to become the transferee beneficiary of such letter of credit, with the Collateral Agent agreeing, in each case, that the
proceeds of any drawing under the letter of credit are retained by the Collateral Agent and to be applied as provided in this Agreement only after the occurrence and during the continuance of an Event of Default.
3.10. Chattel Paper.
Upon the request of
the Collateral Agent made at any time or from time to time, each Assignor shall promptly furnish to the Collateral Agent a list of all Electronic Chattel Paper constituting Collateral held or owned by such Assignor. Furthermore, if requested by the
Collateral Agent, each Assignor shall promptly take all actions which are commercially reasonably so that the Collateral Agent has “control” of all Electronic Chattel Paper, to the extent that the aggregate value or face amount of such
Electronic Chattel Paper equals or exceeds $5,000,000 in the aggregate, in accordance with the requirements of Section 9-105 of the UCC. Each Assignor will promptly (and in any event within 10 days (as such period of time may be extended by the
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Collateral Agent in its discretion) following any request by the Collateral Agent deliver all of its Tangible Chattel Paper to the Collateral Agent, to the extent that the aggregate value or face
amount of such Tangible Chattel Paper equals or exceeds $5,000,000 in the aggregate.
3.11. Further Actions.
Each Assignor will, at its own expense take such actions as are required by Section 9.12(a) of the Credit Agreement.
ARTICLE IV
PROVISIONS CONCERNING
ALL COLLATERAL
4.1. Protection of Collateral Agent’s Security.
Except as otherwise not prohibited by the Credit Documents, no Assignor will do anything to impair in any material respect the rights of the Collateral Agent
in the Collateral. Each Assignor will at all times maintain insurance, at such Assignor’s own expense to the extent and in the manner provided in the Credit Agreement. Except to the extent otherwise permitted to be retained by such Assignor or
applied by such Assignor pursuant to the terms of the Credit Agreement, the Collateral Agent shall, at the time any proceeds of such insurance are distributed to the Secured Creditors, apply such proceeds in accordance with Section 5.4 hereof.
Each Assignor assumes all liability and responsibility in connection with the Collateral acquired by it and the liability of such Assignor to pay the Obligations shall in no way be affected or diminished by reason of the fact that such Collateral
may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to such Assignor.
4.2. Additional Information;
Documents.
Each Assignor will, at its own expense, from time to time upon the reasonable request of the Collateral Agent, promptly (and in any event
within 10 days after its receipt of the respective request (as such period of time may be extended by the Collateral Agent in its discretion)) (i) furnish to the Collateral Agent such information with respect to the Collateral (including
the identity of the Collateral or such components thereof as may have been requested by the Collateral Agent, the value and location of such Collateral, etc.) as may be requested by the Collateral Agent, (ii) deliver to the Collateral Agent
copies of warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title and invoices in each case relating to Collateral and (iii) with respect to any negotiable bill of lading, provide confirmation that
such bill is issued in the name of the relevant Assignor. Without limiting the forgoing, each Assignor agrees that it shall promptly (and in any event within 10 days after its receipt of the respective request (as such period of time may be extended
by the Collateral Agent in its discretion)) furnish to the Collateral Agent such updated Annexes as may from time to time be reasonably requested by the Collateral Agent.
4.3. Financing Statements.
Each Assignor
agrees to execute and deliver (or cause to be executed and delivered) to the Collateral Agent such financing statements, in form reasonably acceptable to the Collateral Agent, as the Collateral Agent may from time to time reasonably request or as
are reasonably necessary or desirable in the opinion of, and at the request of, the Collateral Agent to establish
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and maintain a valid, enforceable, perfected security interest in the Collateral as provided herein and the other rights and security contemplated hereby. Each Assignor will pay any applicable
filing fees, recordation taxes and related expenses relating to its Collateral. Each Assignor hereby authorizes the Collateral Agent to file any such financing statements describing the Collateral without the signature of such Assignor where
permitted by law. Notwithstanding the foregoing, if reasonably requested by any Assignor, the Collateral Agent shall, at Assignor’s expense, make such filings as may be reasonably requested to evidence that the security interests hereunder do
not attach to any property that does not constitute Collateral (including any property that constitutes Excluded Assets).
ARTICLE V
REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT
5.1. Remedies; Obtaining the Collateral Upon Default.
Each Assignor agrees that, if any Event of Default shall have occurred and be continuing, then and in every such case, the Collateral Agent, in addition to any
rights now or hereafter existing under applicable law and under the other provisions of this Agreement, shall have all rights as a secured creditor under any UCC, and such additional rights and remedies to which a secured creditor is entitled under
the laws in effect in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or any other Person who then has possession of any part thereof with or without notice or process of law, and for that purpose may enter upon such Assignor’s premises where
any of the Collateral is located and remove the same and use in connection with such removal any and all services, supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument or other obligation (including, without limitation, the
Accounts and the Contracts) constituting the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Collateral Agent and may exercise any and all remedies of such Assignor in respect of
such Collateral;
(iii) instruct all banks which have entered into a control agreement with the Collateral Agent to
transfer all monies, securities and instruments held by such depositary bank to the Cash Collateral Account;
(iv) sell,
assign or otherwise liquidate any or all of the Collateral or any part thereof in accordance with Section 5.2 hereof, or direct such Assignor to sell, assign or otherwise liquidate any or all of the Collateral or any part thereof, and, in each
case, take possession of the proceeds of any such sale or liquidation;
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(v) take possession of the Collateral or any part thereof, by directing such
Assignor in writing to deliver the same to the Collateral Agent at any reasonable place or places designated by the Collateral Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or places so designated by the Collateral Agent and there delivered to
the Collateral Agent;
(y) store and keep any Collateral so delivered to the Collateral Agent at such place or places
pending further action by the Collateral Agent as provided in Section 5.2 hereof; and
(z) while the Collateral shall
be so stored and kept, provide such security and maintenance services as shall be reasonably necessary to protect the same and to preserve and maintain it in good condition;
(vi) exercise the rights granted under Section 1.2 hereof;
(vii) apply any monies constituting Collateral or proceeds thereof in accordance with the provisions of Section 5.4; and
(viii) take any other action as specified in clauses (1) through (5), inclusive, of Section 9-607(a) of the UCC;
it being understood that each Assignor’s obligation so to deliver the Collateral is of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by such Assignor of said obligation. By accepting the benefits of this Agreement and each other Security
Document, the Secured Creditors expressly acknowledge and agree that this Agreement and each other Security Document may be enforced only by the action of the Collateral Agent acting upon the instructions of the Required Lenders and that no other
Secured Creditor shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Collateral
Agent for the benefit of the Secured Creditors upon the terms of this Agreement and the other Security Documents.
5.2. Remedies;
Disposition of the Collateral.
If any Event of Default shall have occurred and be continuing, then any Collateral repossessed by the Collateral Agent
under or pursuant to Section 5.1 hereof and any other Collateral whether or not so repossessed by the Collateral Agent, may be sold, assigned, leased or otherwise disposed of under one or more contracts or as an entirety, and without the
necessity of gathering at the place of sale the property to be sold, and in general in such manner, at such time or times, at such place or places and on such terms as the Collateral Agent may, in compliance with any mandatory requirements of
applicable law, determine to be commercially reasonable. Any of such Collateral may be sold, leased or otherwise disposed of, in the condition in which the same existed when taken by the Collateral Agent or after any overhaul or repair at the
expense of the relevant Assignor which the Collateral Agent shall determine to be commercially reasonable. Any such sale, lease or other disposition may be effected by means of a public disposition or private disposition, effected in accordance with
the applicable requirements (in each case if and to the extent applicable) of Sections 9-610 through 9-613 of the UCC and/or such other mandatory requirements of applicable law as may apply to the respective disposition. The Collateral Agent may,
without notice or publication, adjourn any public or private disposition or
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cause the same to be adjourned from time to time by announcement at the time and place fixed for the disposition, and such disposition may be made at any time or place to which the disposition
may be so adjourned. To the extent permitted by any such requirement of law, the Collateral Agent may bid for and become the purchaser (and may pay all or any portion of the purchase price by crediting Obligations against the purchase price) of the
Collateral or any item thereof, offered for disposition in accordance with this Section 5.2 without accountability to the relevant Assignor. If, under applicable law, the Collateral Agent shall be permitted to make disposition of the Collateral
within a period of time which does not permit the giving of notice to the relevant Assignor as hereinabove specified, the Collateral Agent need give such Assignor only such notice of disposition as shall be required by such applicable law. Each
Assignor agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make such disposition or dispositions of all or any portion of the Collateral valid and binding and in compliance with any and all applicable
laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Assignor’s expense.
5.3. Waiver of Claims.
Except as
otherwise provided in this Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT’S TAKING POSSESSION OR THE COLLATERAL AGENT’S DISPOSITION OF
ANY OF THE COLLATERAL, IN EACH CASE AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES, and each Assignor hereby further
waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession or any such disposition
except any damages which are the direct result of the Collateral Agent’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision);
(ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of
the Collateral Agent’s rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay, extension
or moratorium now or hereafter in force under any applicable law in order to prevent or delay the enforcement of this Agreement or the absolute sale of the Collateral or any portion thereof, and each Assignor, for itself and all who may claim under
it, insofar as it or they now or hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or
any other realization upon, any Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the relevant Assignor therein and thereto, and shall be a perpetual bar both at law and in equity against
such Assignor and against any and all Persons claiming or attempting to claim the Collateral so sold, optioned or realized upon, or any part thereof, from, through and under such Assignor.
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5.4. Application of Proceeds.
(a) All moneys collected by the Collateral Agent (or, to the extent any other Security Document requires proceeds of collateral under such other Security
Document to be applied in accordance with the provisions of this Agreement, the collateral agent under such other Security Document) upon any sale or other disposition of the Collateral, in connection with the Collateral Agent’s exercise of
remedies following the occurrence and during the continuance of an Event of Default, together with all other moneys received by the Collateral Agent hereunder or under any other Security Document, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral Agent of the type described in clauses (iv), (v),
(vi) and (vii) of the definition of “Obligations”;
(ii) second, to the extent proceeds remain
after the application pursuant to preceding clause (i), (x) an amount equal to the outstanding Primary Obligations which are Credit Document Obligations shall be paid to the Lender Creditors as provided in Section 5.4(e) hereof, with each
such Lender Creditor receiving an amount equal to its outstanding Primary Obligations which are Credit Document Obligations and (y) an amount equal to the outstanding Primary Obligations which are Pari Passu Other Obligations shall be paid to
the Other Creditors as provided in Section 5.4(e) hereof, with each such Other Creditor receiving an amount equal to its outstanding Primary Obligations which are Pari Passu Other Obligations or, if the proceeds are insufficient to pay in full
all Primary Obligations described in clauses (x) and (y) above, each Lender Creditor and each Other Creditor shall receive its Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application pursuant to preceding clauses (i) and (ii),
(x) an amount equal to the outstanding Secondary Obligations which are Credit Document Obligations shall be paid to the Lender Creditors as provided in Section 5.4(e) hereof, with each such Lender Creditor receiving an amount equal to its
outstanding Secondary Obligations which are Credit Document Obligations and (y) an amount equal to the outstanding Secondary Obligations which are Pari Passu Other Obligations shall be paid to the Other Creditors as provided in
Section 5.4(e) hereof, with each such Other Creditor receiving an amount equal to its outstanding Secondary Obligations which are Pari Passu Other Obligations or, if the proceeds are insufficient to pay in full all Secondary Obligations
described in clauses (x) and (y) above, each Lender Creditor and each Other Creditor shall receive its Pro Rata Share of the amount remaining to be distributed;
(iv) fourth, to the extent proceeds remain after the application pursuant to preceding clauses (i) through (iii),
an amount equal to the outstanding Primary Obligations which are Junior Other Obligations shall be paid to the Other Creditors as provided in Section 5.4(e) hereof, with each such Other Creditor receiving an amount equal to its outstanding
Primary Obligations which are Junior Other Obligations or, if the proceeds are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of the amount remaining to be distributed;
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(v) fifth, to the extent proceeds remain after the application pursuant to
preceding clauses (i) through (iv), inclusive, an amount equal to the outstanding Secondary Obligations which are Junior Other Obligations shall be paid to the Other Creditors as provided in Section 5.4(e) hereof, with each such Other
Creditor receiving an amount equal to its outstanding Secondary Obligations which are Junior Other Obligations or, if the proceeds are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(vi) sixth, to the extent proceeds remain after the application pursuant to preceding
clauses (i) through (v), inclusive, and following the termination of this Agreement pursuant to Section 8.8(a) hereof, to the relevant Assignor or to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement: (i) “Pro Rata Share” shall mean, when calculating a Secured Creditor’s portion
of any distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor’s Primary Obligations or Secondary Obligations, as the case may be, and the
denominator of which is the then outstanding amount of all Primary Obligations or Secondary Obligations owing to the applicable Secured Creditors entitled thereto, as the case may be; (ii) “Primary Obligations” shall mean
(x) in the case of the Credit Document Obligations all principal of, premium, fees and interest on, all Loans, all Unpaid Drawings (and all interest thereon), the Stated Amount of (and the obligation to cash collateralize) all outstanding
Letters of Credit and all Fees and (y) in the case of the Other Obligations, all amounts due to an Other Creditor under each Secured Hedging Agreement and/or Treasury Services Agreement, as applicable (other than indemnities, fees (including,
without limitation, reasonable attorneys’ fees) and similar obligations and liabilities); and (iii) “Secondary Obligations” shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective Pro Rata Shares, the amounts received by such Secured
Creditors hereunder shall be applied (for purposes of making determinations under this Section 5.4 only) (i) first, to their Primary Obligations and (ii) second, to their Secondary Obligations. If any payment to any
Secured Creditor of its Pro Rata Share of any distribution would result in overpayment to such Secured Creditor, such excess amount shall instead be distributed in respect of the unpaid Primary Obligations or Secondary Obligations, as
the case may be, of the other Secured Creditors entitled to such distribution, with each such Secured Creditor whose Primary Obligations or Secondary Obligations, as the case may be, have not been paid in full to receive an amount equal to such
excess amount multiplied by a fraction the numerator of which is the unpaid Primary Obligations or Secondary Obligations, as the case may be, of such Secured Creditor and the denominator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their
acceptance of the benefits hereof and of the other Security Documents, agrees and acknowledges that if the Lender Creditors receive (or are to receive) a distribution on account of undrawn amounts with respect to Letters of Credit issued under the
Credit Agreement (which shall only occur after all outstanding Revolving Loans under the Credit Agreement and Unpaid Drawings have been paid in full), such
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amounts shall be paid to the Administrative Agent under the Credit Agreement and held by it, for the equal and ratable benefit of the Lender Creditors, as cash security for the repayment of
Obligations owing to the Lender Creditors as such. If any amounts are held as cash security pursuant to the immediately preceding sentence, then upon the termination of all outstanding Letters of Credit issued under the Credit Agreement, and after
the application of all such cash security to the repayment of all Obligations owing to the Lender Creditors after giving effect to the termination of all such Letters of Credit, if there remains any excess cash, such excess cash shall be returned by
the Administrative Agent to the Collateral Agent for distribution in accordance with Section 5.4(a) hereof.
(e) All payments
required to be made hereunder shall be made (x) if to the Lender Creditors, to the Administrative Agent for the account of the Lender Creditors, and (y) if to the Secured Hedging Creditors or the Treasury Services Creditors, to the
trustee, paying agent or other similar representative (each, a “Representative”) for the Secured Hedging Creditors or the Treasury Services Creditors, as applicable, or, in the absence of such a Representative, directly to the
Secured Hedging Creditors or the Treasury Services Creditors, as applicable.
(f) For purposes of applying payments received in accordance
with this Section 5.4, the Collateral Agent shall be entitled to rely upon the Administrative Agent and the Representative or, in the absence of such a Representative, upon the Secured Hedging Creditors and the Treasury Services Creditors, as
applicable, for a determination (which the Administrative Agent, each Representative, the Secured Hedging Creditors and the Treasury Services Creditors agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding
Primary Obligations and Secondary Obligations owed to the Lender Creditors, the Secured Hedging Creditors or the Treasury Services Creditors, as the case may be. Unless it has received written notice from a Lender Creditor, a Secured Hedging
Creditor or a Treasury Services Creditor to the contrary, the Administrative Agent and each Representative, in furnishing information pursuant to the preceding sentence, and the Collateral Agent, in acting hereunder, shall be entitled to assume that
no Secondary Obligations are outstanding. Unless it has written notice from a Secured Hedging Creditor to the contrary, the Collateral Agent, in acting hereunder, shall be entitled to assume that no Secured Hedging Agreements are in existence.
(g) It is understood that the Assignors shall remain jointly and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Obligations.
(h) It is understood and agreed by each Assignor and each Secured
Creditor that the Collateral Agent shall have no liability for any determinations made by it in this Section 5.4, in each case except to the extent resulting from the gross negligence or willful misconduct of the Collateral Agent (as determined
by a court of competent jurisdiction in a final and non-appealable decision). Each Assignor and each Secured Creditor also agrees that the Collateral Agent may (but shall not be required to), at any time and in its sole discretion, and with no
liability resulting therefrom, petition a court of competent jurisdiction regarding any application of Collateral in accordance with the requirements hereof, and the Collateral Agent shall be entitled to wait for, and may conclusively rely on, any
such determination.
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(i) Notwithstanding anything to the contrary herein, in no event shall the Obligations secured by
the Collateral of any Assignor include any Excluded Swap Obligations of such Assignor and no Collateral of any Assignor shall be used to satisfy any Excluded Swap Obligations of such Assignor.
5.5. Remedies Cumulative.
Each and every
right, power and remedy hereby specifically given to the Collateral Agent shall be in addition to every other right, power and remedy specifically given to the Collateral Agent under this Agreement, the other Secured Debt Agreements or now or
hereafter existing at law, in equity or by statute and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time or simultaneously and as often and in such order as may be
deemed expedient by the Collateral Agent. All such rights, powers and remedies shall be cumulative and the exercise or the beginning of the exercise of one shall not be deemed a waiver of the right to exercise any other or others. No delay or
omission of the Collateral Agent in the exercise of any such right, power or remedy and no renewal or extension of any of the Obligations shall impair any such right, power or remedy or shall be construed to be a waiver of any Default or Event of
Default or an acquiescence thereof. No notice to or demand on any Assignor in any case shall entitle it to any other or further notice or demand in similar or other circumstances or constitute a waiver of any of the rights of the Collateral Agent to
any other or further action in any circumstances without notice or demand. In the event that the Collateral Agent shall bring any suit to enforce any of its rights hereunder and shall be entitled to judgment, then in such suit the Collateral Agent
may recover reasonable expenses, including reasonable attorneys’ fees, and the amounts thereof shall be included in such judgment.
5.6. Discontinuance of Proceedings.
In
case the Collateral Agent shall have instituted any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Collateral Agent, then and in every such case the relevant Assignor, the Collateral Agent and each holder of any of the Obligations shall be restored to their former positions and rights hereunder with respect
to the Collateral subject to the security interest created under this Agreement, and all rights, remedies and powers of the Collateral Agent shall continue as if no such proceeding had been instituted.
5.7. Subordination.
Each Assignor hereby
agrees that, upon the occurrence and during the continuance of an Event of Default, unless otherwise agreed by the Administrative Agent, all Indebtedness owing by it to any Subsidiary of the Company (other than any U.S. Subsidiary Guarantor) shall
be fully subordinated to the indefeasible payment in full in cash of such Assignor’s Obligations.
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ARTICLE VI
INDEMNITY
6.1.
Indemnity.
(a) Each Assignor jointly and severally agrees to indemnify, reimburse and hold the Collateral Agent, each other Lender and their
respective successors, assigns, employees, affiliates and agents (hereinafter in this Section 6.1 referred to individually as “Indemnitee,” and collectively as “Indemnitees”) harmless, in accordance with
Section 13.01(b) of the Credit Agreement, any and all liabilities, obligations, losses, damages (excluding damages, losses or liabilities arising under any theory of liability for special, indirect, consequential or incidental damages (as
opposed to direct or actual damages)), penalties, claims, actions (including removal or remedial actions), judgments, suits, costs, expenses and disbursements (including reasonable and invoiced out-of-pocket attorneys’ and consultants’
fees and disbursements (but limited, in the case of attorneys’ fees and disbursements, to one counsel to the Indemnified Persons, taken as a whole, one local counsel for the Indemnified Persons, taken as a whole, in each relevant jurisdiction,
and, solely in the case of an actual or perceived conflict of interests, one additional counsel in each relevant jurisdiction to each group of affected Indemnified Persons similarly situated, taken as a whole)) incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related to, or by reason of, (i) any investigation, litigation or other proceeding (whether or not the Lead Arrangers, the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Documentation Agent, any Issuing Lender or any Lender is a party thereto and whether or not such investigation, litigation or other proceeding is brought by or on behalf of any Credit Party) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans hereunder or the consummation of the Transaction or any other transactions contemplated herein or in any other Credit Document
or the exercise of any of their rights or remedies provided herein or in the other Credit Documents or (ii) (x) the handling of the Credit Account and Collateral of the Borrowers as provided in this Agreement or (y) the Agents’
and the Lenders’ relying on any instructions of the Company, or (z) any other action taken by the Agents or the Lenders hereunder or under the other Credit Documents; provided that no Indemnitee shall be indemnified pursuant to this
Section 6.1(a) for losses, damages or liabilities (a) to the extent caused by the gross negligence or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision),
(b) constituting taxes (other than taxes that represent losses, liabilities, claims, damages or expenses arising from any non-tax claim) or (c) arising out of disputes solely between and among Indemnitees to the extent such disputes do not
involve any act or omission of the Company or any of its Subsidiaries or any of their respective Affiliates (other than claims against an Indemnitee acting in its capacity as Agent or Lender). Each Assignor agrees that upon written notice by any
Indemnitee of the assertion of such a liability, obligation, damage, injury, penalty, claim, demand, action, suit or judgment, the relevant Assignor shall assume full responsibility for the defense thereof. Each Indemnitee agrees to use its best
efforts to promptly notify the relevant Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the
application of Section 6.1(a) hereof, each Assignor agrees, jointly and severally, to pay or reimburse the Collateral Agent for any and all reasonable and invoiced out-of-pocket fees, costs and expenses of whatever kind or nature incurred in
connection with the creation, preservation or protection of the Collateral Agent’s Liens on, and security interest in, the Collateral, including, without limitation, all fees and taxes in connection with the recording or filing of instruments
and documents in public offices, payment or discharge of any taxes or Liens upon or in respect of the Collateral, premiums for insurance with respect to
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the Collateral and all other fees, costs and expenses in connection with protecting, maintaining or preserving the Collateral and the Collateral Agent’s interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising out of or relating to the Collateral.
(c) If and to the extent that the obligations of any Assignor under this Section 6.1 are unenforceable for any reason, such Assignor
hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
6.2. Indemnity Obligations Secured by Collateral; Survival.
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement hereunder or under the other Credit Documents shall constitute
Obligations secured by the Collateral. The indemnity obligations of each Assignor contained in this Article VI shall continue in full force and effect notwithstanding the full payment of all of the other Obligations and notwithstanding the full
payment of all the Notes issued, and Loans made, under the Credit Agreement, the termination of all Letters of Credit issued under the Credit Agreement, the termination of all Secured Hedging Agreements entered into with the Secured Hedging
Creditors, the termination of all Treasury Services Agreements entered into with the Treasury Services Creditors and the payment of all other Obligations and notwithstanding the discharge thereof and the occurrence of the Termination Date.
ARTICLE VII
DEFINITIONS
The following terms shall have the meanings herein specified. Such definitions shall be equally applicable to the singular and plural forms of
the terms defined.
“Account” shall mean any “account” as such term is defined in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
“Administrative Agent” shall have the meaning provided in the
recitals of this Agreement.
“Agreement” shall mean this Security Agreement, as the same may be amended, modified,
restated and/or supplemented from time to time in accordance with its terms.
“Assignor” shall have the meaning provided
in the first paragraph of this Agreement.
“Assignor Intellectual Property Rights” shall mean all Intellectual Property
Rights owned by Assignor, or licensable or sublicensable by Assignor without payment of any material consideration to any third party.
“Borrower” shall have the meaning provided in the recitals of this Agreement.
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“Cash Collateral Account” shall mean a non-interest bearing cash collateral
account maintained with, and in the sole dominion and control of, the Collateral Agent for the benefit of the Secured Creditors.
“Chattel Paper” shall mean “chattel paper” as such term is defined in the Uniform Commercial Code as in effect on
the date hereof in the State of New York. Without limiting the foregoing, the term “Chattel Paper” shall in any event include all Tangible Chattel Paper and all Electronic Chattel Paper.
“Collateral” shall have the meaning provided in Section 1.1(a) of this Agreement.
“Collateral Agent” shall have the meaning provided in the first paragraph of this Agreement.
“Company” shall have the meaning provided in the recitals of this Agreement.
“Contract Rights” shall mean all rights of any Assignor under each Contract, including, without limitation, (i) any and
all rights to receive and demand payments under any or all Contracts, (ii) any and all rights to receive and compel performance under any or all Contracts and (iii) any and all other rights, interests and claims now existing or in the
future arising in connection with any or all Contracts.
“Contracts” shall mean all contracts between any Assignor and
one or more additional parties (including, without limitation, any Interest Rate Protection Agreements, Other Hedging Agreements, licensing agreements and any partnership agreements, joint venture agreements and limited liability company
agreements).
“Credit Agreement” shall have the meaning provided in the recitals of this Agreement.
“Credit Document Obligations” shall have the meaning provided in the definition of “Obligations” in this Article
VII.
“Credit Documents” shall have the meaning provided in the Credit Agreement.
“DBNY” shall have the meaning provided in the first paragraph of this Agreement.
“Deposit Accounts” shall mean all “deposit accounts” as such term is defined in the Uniform Commercial Code as in
effect on the date hereof in the State of New York and all other demand, deposit, time, savings, cash management, passbook and similar accounts.
“Documents” shall mean “documents” as such term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York.
“Dutch Borrower” shall have the meaning provided in the recitals of this Agreement.
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“Electronic Chattel Paper” shall mean “electronic chattel paper” as
such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“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, and in any event, shall include, but shall not be limited to, all machinery, equipment, furnishings and fittings now or hereinafter owned by any Assignor, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
“Event of Default” shall mean any Event of Default
under, and as defined in, the Credit Agreement.
“Excluded Assets” shall have the meaning provided in Section 1.1(b)
of this Agreement.
“Financial Assets” shall mean all present and future “financial assets” (as defined in
Article 8 of the UCC).
“General Intangibles” shall mean “general intangibles” as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Goods” shall mean “goods”
as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Indemnitee” shall have the meaning provided in Section 6.1(a) of this Agreement.
“Instrument” shall mean “instruments” as such term is defined in the Uniform Commercial Code as in effect on the
date hereof in the State of New York.
“Intellectual Property Rights” shall mean any and all rights, anywhere in the
world, related to, associated with or constituting (i) patents, patent applications and patent rights; (ii) works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work
applications and mask work registrations; (iii) trade secrets, know-how, inventions, methods, processes, data, software (including source code and object code) and confidential information; (iv) trademarks, service marks and trade names,
trade dress, logos, designs, fictitious business names, domain names, social media and mobile identifiers and other business identifiers and other designations of origin (“Trademarks”); (v) any right analogous to those set
forth in this definition and any other intellectual property rights or proprietary rights anywhere in the world; and (vi) registrations, recordations, applications, divisionals, continuations, continuations-in-part, renewals, reissues and
extensions of the foregoing (as and to the extent applicable).
“Inventory” shall mean merchandise, inventory and goods,
and all additions, substitutions and replacements thereof and all accessions thereto, wherever located, together with all goods, supplies, incidentals, packaging materials, labels, materials and any other items used or usable in manufacturing,
processing, packaging or shipping same, in all stages of production
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from raw materials through work in process to finished goods, and all products and proceeds of whatever sort and wherever located any portion thereof which may be returned, rejected, reclaimed or
repossessed by the Collateral Agent from any Assignor’s customers, and shall specifically include all “inventory” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Junior Other Obligations” shall mean all Other Obligations other than Pari Passu Other Obligations.
“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 or, in respect of any Interest Rate Protection Agreement and/or Other Hedging Agreement entered into prior to the Closing Date, was the Administrative Agent, a Lender or an
affiliate of the Administrative Agent or a Lender on the Closing Date (with respect to this clause (b), 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 Creditors” shall have the meaning
provided in the recitals of this Agreement.
“Lenders” shall have the meaning provided in the recitals of this Agreement.
“Letter-of-Credit Rights” shall mean “letter-of-credit rights” as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
“Location” of any Assignor, shall mean
such Assignor’s “location” as determined pursuant to Section 9-307 of the UCC.
“Money” shall mean
all present and future “money” (as defined in Article 9 of the UCC).
“Non-Eligible Motor Vehicles” shall mean
all motor vehicles other than those constituting Eligible Inventory.
“Obligations” shall mean and include, as to any
Assignor, all of the following:
(i) the full and prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of all obligations, liabilities and indebtedness (including, without limitation, principal, premium, interest, reimbursement obligations under Letters of Credit, cash collateralization of outstanding Letters of Credit, fees, costs and
indemnities (including, without limitation, all interest, fees and expenses that accrue after
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the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of any Assignor at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest, fees or expenses is allowed in any such proceeding)) of such Assignor to the Lender Creditors, whether now existing or hereafter incurred under, arising out of, or in connection with,
each Credit Document to which such Assignor is a party (including, without limitation, in the event such Assignor is a Guarantor, all such obligations, liabilities and indebtedness of such Assignor under its Guaranty) and the due performance and
compliance by such Assignor with all of the terms, conditions and agreements contained in each such Credit Document (all such obligations, liabilities and indebtedness under this clause (i), except to the extent consisting of obligations or
indebtedness with respect to Secured Hedging Agreements or Treasury Services Agreements, being herein collectively called the “Credit Document Obligations”);
(ii) the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including without limitation, all interest, fees and expenses that accrue after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding of
any Assignor at the rate provided for in the respective documentation, whether or not a claim for post-petition interest, fees or expenses is allowed in any such proceeding) owing by such Assignor to the Secured Hedging Creditors, now existing or
hereafter incurred under, arising out of or in connection with any Secured Hedging Agreement, whether such Secured Hedging Agreement is now in existence or hereinafter arising (including, without limitation, in the case of an Assignor that is a
Guarantor, all obligations, liabilities and indebtedness of such Assignor under its Guaranty in respect of the Secured Hedging Agreements), and the due performance and compliance by such Assignor with all of the terms, conditions and agreements
contained in each such Secured Hedging Agreement (all such obligations, liabilities and indebtedness under this clause (ii) being herein collectively called the “Secured Hedging Obligations”); provided, however,
in no event will Secured Hedging Obligations of an Assignor include its Excluded Swap Obligations;
(iii) the full and
prompt payment when due (whether at the stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of all obligations, liabilities and indebtedness (including, without limitation, all interest, fees and expenses that
accrue after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding at the rate provided for in the respective documentation, whether or not such interest, fees or
expenses is allowed in any such proceeding) owing by such Assignor to each Treasury Services Creditor with respect to Treasury Services, whether now in existence or hereafter arising in each case under any Treasury Services Agreement (including,
without limitation, in the case of an Assignor that is a Guarantor, all obligations, liabilities and indebtedness of such Assignor under its Guaranty in respect of the Treasury Services Agreements) (all such obligations, liabilities and indebtedness
described in this clause (iii) being herein collectively called the “Treasury Services Obligations” and, together with the Secured Hedging Obligations, the “Other Obligations”);
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(iv) any and all sums advanced by the Collateral Agent in order to preserve the
Collateral or preserve its security interest in the Collateral;
(v) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of such Assignor referred to in clauses (i), (ii) and (iii) above, after an Event of Default shall have occurred and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of its rights hereunder, together with reasonable attorneys’ fees and court costs;
(vi) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement under Section 6.1 of
this Agreement; and
(vii) all amounts owing to any Agent pursuant to any of the Credit Documents in its capacity as such;
it being acknowledged and agreed that the “Obligations” shall include extensions of credit of the types described above,
whether now existing or hereinafter incurred or extended from time to time after the date of this Agreement.
“Other
Creditors” shall mean the Secured Hedging Creditors and the Treasury Services Creditors.
“Other Obligations”
shall have the meaning provided in the definition of “Obligations”.
“Pari Passu Other Obligations” shall mean
any Other Obligations for which the Administrative Agent has established a Reserve against the U.S. Borrowing Base in respect thereof.
“Payment Intangibles” shall mean “payment intangibles” as such term is defined in the Uniform Commercial Code as in
effect on the date hereof in the State of New York.
“Permits” shall mean, to the extent permitted to be assigned by the
terms thereof or by applicable law, all licenses, permits, consent, approval, rights, orders, variances, franchises or authorizations of or from any Governmental Authority or agency.
“Primary Obligations” shall have the meaning provided in Section 5.4(b) of this Agreement.
“Promissory Note” shall have the meaning provided in the Uniform Commercial Code as in effect in the State of New York.
“Pro Rata Share” shall have the meaning provided in Section 5.4(b) of this Agreement.
“Proceeds” shall mean all “proceeds” as such term is defined in the Uniform Commercial Code as in effect in the
State of New York on the date hereof and, in any event,
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shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Collateral Agent or any Assignor from time to time with
respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any Assignor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any person acting under color of Governmental Authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“Qualified Keepwell Provider” shall mean, in respect of any Swap Obligation, each Assignor that, at all times during the Swap
Guarantee Eligibility Period, has total assets exceeding $10,000,000 or otherwise constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to
qualify as an “eligible contract participant” with respect to such Swap Obligation at such time by entering into a keepwell pursuant to section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Representative” shall have the meaning provided in Section 5.4(e) of this Agreement.
“Secondary Obligations” shall have the meaning provided in Section 5.4(b) of this Agreement.
“Secured Creditors” shall have the meaning provided in the recitals of this Agreement.
“Secured Debt Agreements” shall mean and include this (i) Agreement, (ii) the other Credit Documents,
(iii) the Secured Hedging Agreements entered into with a Secured Hedging Creditor and (iv) the Treasury Services Agreements entered into with a Treasury Services Creditor.
“Secured Hedging Agreement” shall mean each Interest Rate Protection Agreement and/or Other Hedging Agreements entered into
with a Lender Counterparty, provided that (i) other than with respect to Interest Protection Agreements or Other Hedging Agreements entered into prior to the Closing Date, such Interest Rate Protection Agreement and/or Other Hedging
Agreement expressly states that it constitutes a “Secured Hedging Agreement” for purposes of the Credit Agreement and the other Credit Documents and (ii) the Company and the other parties thereto shall have delivered to the Collateral
Agent a written notice specifying that such Interest Rate Protection Agreement and/or Other Hedging Agreement constitutes a “Secured Hedging Agreement” for purposes of the Credit Agreement and the other Credit Documents; provided no such
notice shall be required in respect of any Interest Rate Protection Agreement or Other Hedging Agreement entered into with Deutsche Bank AG New York Branch or any of its Affiliates.
“Secured Hedging Creditors” shall have the meaning provided in the recitals of this Agreement.
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“Secured Hedging Obligations” shall have the meaning provided in the definition
of “Obligations” in this Article VII.
“Securities Accounts” shall mean all present and future “securities
accounts” (as defined in Article 8 of the UCC), including all monies, “uncertificated securities,” and “securities entitlements” (each as defined in Article 8 of the UCC) contained therein.
“Security” shall mean all present and future “Securities” (as defined in Article 8 of the UCC).
“Security Entitlements” shall mean all present and future “security entitlements” (as defined in Article 8 of the
UCC).
“Software” shall mean “software” as such term is defined in the Uniform Commercial Code as in effect on
the date hereof in the State of New York.
“State” shall mean any state of the United States.
“Supporting Obligations” shall mean any “supporting obligation” as such term is defined in the Uniform Commercial
Code as in effect on the date hereof in the State of New York, now or hereafter owned by any Assignor, or in which any Assignor has any rights, and, in any event, shall include, but shall not be limited to all of such Assignor’s rights in
any Letter-of-Credit Right or secondary obligation that supports the payment or performance of, and all security for, any Account, Document, General Intangible or Instrument.
“Swap Guarantee Eligibility Period” shall mean, with respect to any Assignor and the relevant Swap Obligation, the period
from and including the date on which the relevant grant of security interest becomes effective with respect to such Swap Obligation until the date on which such grant of security interest is no longer in effect. For the avoidance of doubt, the Swap
Guarantee Eligibility Period shall commence on the date of the execution of a Swap if the corresponding grant of security interest is then in effect, otherwise it shall commence on the date on which such security interest is granted unless the
relevant collateral agreement or pledge documentation specifies a subsequent effective date.
“Tangible Chattel Paper”
shall mean “tangible chattel paper” as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State of New York.
“Termination Date” shall have the meaning provided in Section 8.8(a) of this Agreement.
“Treasury Services” shall have the meaning provided in the recitals of this Agreement.
“Treasury Services Agreement” shall have the meaning provided in the recitals of this Agreement.
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“Treasury Services Creditors” shall have the meaning provided in the recitals of
this Agreement.
“Treasury Services Obligations” shall have the meaning provided in the definition of
“Obligations” in this Article VII.
“UCC” shall mean the Uniform Commercial Code as in effect from time to time
in the relevant jurisdiction.
“U.S. Borrower” shall have the meaning provided in the recitals of this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1. Notices.
Except as otherwise
specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be in writing and shall be sent or delivered by mail, email, telecopy or courier service and all such notices and communications
shall, when mailed, emailed, telecopied or sent by courier, be effective when received by the Collateral Agent or such Assignor, as the case may be. All notices and other communications shall be in writing and addressed as follows:
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(a) |
if to any Assignor, c/o: |
Tesla Motors, Inc.
3500 Deer Creek Road
Palo
Alto, California 94304
Attention: Chief Financial Officer
Email: deepak@teslamotors.com and mike@teslamotors.com
Facsimile: 650-681-5203
with
copies to:
Tesla Motors, Inc.
3500 Deer Creek Road
Palo
Alto, California 94304
Attention: General Counsel
Email: tmaron@teslamotors.com and jchang@teslamotors.com
Facsimile: 650-681-5203
and
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto,
California 94304
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Attention: Andrew J. Hirsch
Facsimile: 650-493-6811
Email:
ahirsch@wsgr.com
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if to the Collateral Agent, at: |
Deutsche Bank AG New York Branch
60 Wall Street
New York, New
York 10005
Attention: Phelecia Parker
Email: Agency.Transactions@db.com
Facsimile: (904) 779-3080
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if to any Lender Creditor other than the Collateral Agent, at such address as such Lender Creditor shall have specified in the Credit Agreement; |
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(d) |
if to any Secured Hedging Creditor, at such address as such Secured Hedging Creditor shall have specified in writing to the Company and the Collateral Agent; |
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if to any Treasury Services Creditor, at such address as such Treasury Services Creditor shall have specified in writing to the Company and the Collateral Agent; |
or at such other address or addressed to such other individual as shall have been furnished in writing by any Person described above to the party required to
give notice hereunder.
8.2. Waiver; Amendment.
Except as provided in Sections 8.8, 8.12 and 8.13 hereof and Section 13.12 of the Credit Agreement, none of the terms and conditions of this Agreement or
any other Security Document may be changed, waived, modified or varied in any manner whatsoever unless in writing duly signed by each Assignor directly affected thereby (it being understood that the addition or release of any Assignor hereunder or
under another Security Document shall not constitute a change, waiver, discharge or termination affecting any Assignor other than the Assignor so added or released) and the Collateral Agent (with the written consent of the Required Lenders).
Notwithstanding anything to the contrary in any Loan Document, Annex E hereto may be amended at any time and from time to time solely with the consent of the Company and the Collateral Agent.
8.3. Obligations Absolute.
The
obligations of each Assignor hereunder shall remain in full force and effect without regard to, and shall not be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of
such Assignor; (b) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege under or in respect of this Agreement or any other Secured Debt Agreement; or (c) any amendment to or modification of any other
Secured Debt Agreement or any security for any of the Obligations (in each case), whether or not such Assignor shall have notice or knowledge of any of the foregoing.
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8.4. Successors and Assigns.
This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect, subject to release and/or
termination as set forth in Section 8.8 hereof, (ii) be binding upon each Assignor, its successors and assigns, provided however, that except as otherwise permitted by the Credit Agreement, no Assignor shall assign any of its
rights or obligations hereunder without the prior written consent of the Collateral Agent (with the consent of the Required Lenders), and (iii) inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of
the Collateral Agent, the other Secured Creditors and their respective successors, transferees and assigns. All agreements, statements, representations and warranties made by each Assignor herein or in any certificate or other instrument delivered
by such Assignor or on its behalf under this Agreement shall be considered to have been relied upon by the Secured Creditors and shall survive the execution and delivery of this Agreement and the other Secured Debt Agreements regardless of any
investigation made by the Secured Creditors or on their behalf.
8.5. Headings Descriptive.
The headings of the several sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
8.6. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW 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). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, BOROUGH OF MANHATTAN, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURISDICTION OVER SUCH ASSIGNOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL
JURISDICTION OVER SUCH ASSIGNOR. EACH ASSIGNOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO ANY SUCH ASSIGNOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 8.1 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE
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OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN
ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN, HOWEVER, SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT UNDER THIS AGREEMENT OR ANY SECURED CREDITOR TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY ASSIGNOR IN ANY OTHER JURISDICTION.
(b) EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE THAT ARE LOCATED IN THE
COUNTY OF NEW YORK AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
8.7.
Assignors’ Duties.
It is expressly agreed, anything herein contained to the contrary notwithstanding, that each Assignor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the Collateral and the Collateral Agent shall not have any obligations or liabilities with respect to any Collateral by reason of or arising out of this Agreement, nor shall
the Collateral Agent be required or obligated in any manner to perform or fulfill any of the obligations of any Assignor under or with respect to any Collateral.
8.8. Termination; Release.
(a) On
the Termination Date, this Agreement shall terminate (provided that all indemnities set forth herein including, without limitation in Section 6.1 hereof, shall survive such termination) and the Collateral Agent, at the request and
expense of the respective Assignor, will promptly execute and deliver to such Assignor a proper instrument or instruments (including Uniform Commercial Code termination statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) such of the Collateral as may be in the possession of the Collateral Agent and as has not theretofore been sold or
otherwise applied or released pursuant to this Agreement. As used in this Agreement, “Termination Date” shall mean the date upon which the Total Revolving Loan Commitment under the Credit Agreement has been terminated, all Loans and
Unpaid Drawings have been paid in full, all Letters of Credit have been terminated (or have been cash collateralized or backstopped by another letter of credit,
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in either case on terms and pursuant to arrangements reasonably satisfactory to the Administrative Agent and the respective Issuing Lenders (which arrangements, in any event, shall require such
cash collateral or backstop letter of credit to be in a stated amount equal to at least 102% of the aggregate Stated Amount of all Letters of Credit outstanding at such time)), and all other Credit Document Obligations (other than indemnities and
other contingent payment obligations under the Credit Documents which are not then due and payable) then due and payable have been paid in full.
(b) In the event that any part of the Collateral is (x) sold or otherwise disposed of (to a Person other than a Credit Party) in
connection with a sale or disposition not prohibited by the Credit Agreement, (y) constitutes or will constitute collateral in a financing permitted by Section 10.04(r), (s) or (v) of the Credit Agreement or (z) is otherwise
released at the direction of the Required Lenders (or all the Lenders if required by Section 13.12 of the Credit Agreement), the Collateral Agent, at the request and expense of such Assignor, will duly release from the security interest created
hereby (and will promptly execute and deliver such documentation, including termination or partial release statements, including UCC-3s, subordination agreements and the like in connection therewith to evidence the release of such item of Collateral
or to subordinate its interest in such item of Collateral) and assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or otherwise
disposed of, or released, and as may be in the possession of the Collateral Agent and has not theretofore been released pursuant to this Agreement. In the case of any sale or disposition of any Collateral not prohibited under the Credit Agreement
(unless sold to another Credit Party) or constituting collateral in a financing permitted by Section 10.04(r), (s) or (v) of the Credit Agreement, the security interest created hereby on such Collateral shall be automatically released
without the need for further action by any Person. Furthermore, upon the release of any U.S. Guarantor from the U.S. Guaranty in accordance with the provisions thereof, such Assignor (and the Collateral at such time assigned by the respective
Assignor pursuant hereto) shall be automatically released from this Agreement, and the Collateral Agent, at the request and expense of such Assignor being released, will promptly execute and deliver such documentation, including termination or
partial release statements, including UCC-3s, and the like in connection therewith) and assign, transfer and deliver to such Assignor (without recourse and without any representation or warranty) the Collateral of such Assignor being released.
(c) At any time that an Assignor desires that the Collateral Agent take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 8.8(a) or (b), such Assignor shall deliver to the Collateral Agent a certificate signed by an Authorized Officer of such Assignor stating that the release of the respective Collateral is permitted pursuant to
such Section 8.8(a) or (b). At any time that the Company or the respective Assignor desires that a Subsidiary of the Company which has been released from the U.S. Guaranty be released hereunder as provided in the penultimate sentence of
Section 8.8(b) hereof, it shall deliver to the Collateral Agent a certificate signed by an Authorized Officer of the Company and the respective Assignor stating that the release of the respective Assignor (and its Collateral) is permitted
pursuant to such Section 8.8(b).
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(d) The Collateral Agent shall have no liability whatsoever to any other Secured Creditor as the
result of any release of Collateral by it in accordance with, or which the Collateral Agent in good faith believes to be in accordance with, this Section 8.8.
8.9. Counterparts.
This Agreement may be
executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the Company and the Collateral Agent. Delivery of an executed counterpart hereof by facsimile or electronic transmission shall be as effective as delivery of an original executed
counterpart hereof.
8.10. Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
8.11. The Collateral Agent and the other Secured Creditors.
The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly
understood and agreed that the obligations of the Collateral Agent as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this
Agreement and in Section 12 of the Credit Agreement and those arising under applicable law. The Collateral Agent shall act hereunder on the terms and conditions set forth herein and in Section 12 of the Credit Agreement.
8.12. Additional Assignors.
It is
understood and agreed that any Domestic Subsidiary of the Company that desires to become an Assignor hereunder, or is required to execute a counterpart of this Agreement after the date hereof pursuant to the requirements of the Credit Agreement or
any other Credit Document, shall become an Assignor hereunder by (x) executing a counterpart hereof and delivering same to the Collateral Agent or by executing a Joinder Agreement and delivering the same to the Collateral Agent, in each case as
may be requested by the Collateral Agent (provided such Joinder Agreement shall not require the consent of any Assignor), (y) delivering supplements to Annexes A through E, inclusive, hereto as are necessary to cause such Annexes to be
complete and accurate with respect to such additional Assignor on such date (it being understood that the first sentence of Section 2.7 shall be deemed to refer to the one year period prior to the date of the applicable Joinder Agreement) and
(z) taking all actions as specified in this Agreement as would have been taken by such Assignor had it been an original party to this Agreement, in each case with all documents required above to be delivered to the Collateral Agent and with all
documents and actions required above to be taken to the reasonable satisfaction of the Collateral Agent and upon such execution and delivery, such Subsidiary shall constitute an Assignor hereunder.
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8.13. Release of Assignors.
If at any time all of the Equity Interests of any Assignor (or, to the extent any other Security Document requires releases thereunder to occur in accordance
with the provisions of this Agreement, the pledgor, transferor, mortgagor or other corresponding party under such other Security Document) owned by the Company and its Subsidiaries (other than the Equity Interests of a Borrower) are sold (to a
Person other than the Company or any of its Subsidiaries) in a transaction permitted pursuant to the Credit Agreement (and which does not violate the terms of any other Credit Document then in effect), then, at the request and expense of the
Company, the respective Assignor shall be immediately released as an Assignor pursuant to this Agreement (and the Collateral Agent (or, to the extent any other Security Document requires releases thereunder to occur in accordance with the provisions
of this Agreement, the assignee, mortgagee or other corresponding party under such other Security Document) shall execute and deliver such instruments of release as are reasonably requested by the Company and otherwise reasonably satisfactory to the
Collateral Agent). At any time the Company desires that the Collateral Agent acknowledge that an Assignor has been released from this Agreement as provided in this Section 8.13, the Company shall deliver to the Collateral Agent a certificate
signed by an Authorized Officer of the Company stating that the release of the respective Assignor is permitted pursuant to this Section 8.13.
8.14. Intercreditor Agreement. This Agreement is subject to the Intercreditor Agreement at any time such Intercreditor Agreement is in
effect. In the event of a conflict between the terms of this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall control.
[Remainder of this page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by
their duly authorized officers as of the date first above written.
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| TESLA MOTORS, INC. |
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Signature Page to
Tesla U.S. Security Agreement
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| DEUTSCHE BANK AG NEW YORK BRANCH,
as Collateral Agent |
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Signature Page to
Tesla U.S. Security Agreement
ANNEX A
to
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
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Address of Chief Executive Office |
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ANNEX B
to
SECURITY AGREEMENT
SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION, JURISDICTION OF ORGANIZATION
LOCATION AND ORGANIZATIONAL IDENTIFICATION NUMBERS AND FEDERAL EMPLOYER IDENTIFICATION NUMBERS
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Jurisdiction of
Organization |
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Assignor’s Location
(for purposes of NY
UCC § 9-307) |
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Assignor’s Organization
Identification Number
(or, if it has none, so
indicate) |
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Employer
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ANNEX C
to
SECURITY AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
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Trade and/or
Fictitious Names |
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ANNEX D
to
SECURITY AGREEMENT
DESCRIPTION OF CERTAIN SIGNIFICANT TRANSACTIONS OCCURRING WITHIN
ONE YEAR PRIOR TO THE DATE OF THE SECURITY AGREEMENT
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Description of any Transactions as required by
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ANNEX E
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SECURITY AGREEMENT
SCHEDULE OF EQUIPMENT
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Description of Equipment |
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EXHIBIT J
FORM OF SOLVENCY CERTIFICATE
To the
Administrative Agent and each of the Lenders
party to the Credit Agreement referred to below:
This Certificate is furnished to the Administrative Agent and the Lenders pursuant to Section 6.11(a) of the ABL Credit Agreement, dated
as of June 10, 2015 among Tesla Motors, Inc., a Delaware corporation, (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 other 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”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto (each, a
“Lender” and, collectively, the “Lenders”), Deutsche Bank AG New York Branch, as Collateral Agent and Administrative Agent (the “Administrative Agent”), and the other agents party thereto (the
“Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.
For purposes of this Certificate, the terms below shall have the following definitions:
(a) “debt” means any liability on a claim.
(a) “claim” means right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured.
I, the undersigned, the Chief Financial Officer of Company in
that capacity only and not in my individual capacity, do hereby certify as of the date hereof that, based upon current assumptions which I do not believe to be unreasonable in light of the circumstances applicable thereto, on and as of the date
hereof and after giving effect to all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit Parties in connection therewith on the date hereof, it is my opinion that (i) the sum of the assets, at a fair
valuation, of the Company and its Subsidiaries (taken as a whole) will exceed their debts; (ii) the Company and its Subsidiaries (taken as a whole) have not incurred, and do not intend to incur, debts beyond their ability to pay such debts as
such debts mature in the ordinary course of business; and (iii) the Company and its Subsidiaries (taken as a whole) will have sufficient capital with which to conduct their businesses.
EXHIBIT J
Page 2
IN WITNESS WHEREOF, the undersigned has set his hand this day of
, 2015.
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EXHIBIT K
FORM OF COMPLIANCE CERTIFICATE
This
Compliance Certificate is delivered to you pursuant to Section 9.01(d) of the ABL Credit Agreement, dated as of June 10, 2015 (as amended, restated, supplemented or modified from time to time, the “Credit Agreement”),
among Tesla Motors, 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 other Wholly-Owned Dutch Subsidiary of the Company that becomes a Borrower pursuant to the terms of the Credit Agreement, collectively, the
“Dutch Borrowers”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders party thereto from time to time, Deutsche Bank AG New York Branch, as Collateral Agent and as
Administrative Agent, and the other agents party thereto. Terms defined in the Credit Agreement and not otherwise defined herein are used herein as therein defined.
1. I am the duly elected, qualified and acting [Title of Authorized Officer] of the Company.
2. I have reviewed and am familiar with the contents of this Compliance Certificate. I am providing this Compliance Certificate solely in my
capacity as an officer of the Company and not in an individual capacity. The matters set forth herein are true to the best of my knowledge.
3. I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision a
review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the accounting period covered by the financial statements [attached hereto as ANNEX 1] [filed with the SEC on
[ , ], and contained in the Company’s [Quarterly Report on Form 10-Q][Annual Report on Form 10-K] for the fiscal
[quarter][year] ended [ , ]] (the “Financial Statements”). Such review did not disclose the existence at the end
of the accounting period covered by the Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance Certificate, of any condition or event which constitutes a Default or an Event of Default [other than as set
forth in ANNEX [1][2] attached hereto]1.
4. [I hereby certify that there have been
no changes to Schedule 10.11 of the Disclosure Letter since the [Effective Date][date of the most recent Compliance Certificate delivered pursuant to Section 9.01(d) of the Credit Agreement].] [I hereby certify that the changes to Schedule
10.11 of the Disclosure Letter since the [Effective Date][date of the most recent Compliance Certificate delivered pursuant to Section 9.01(d) of the Credit Agreement] are listed in reasonable detail and are attached hereto as ANNEX [1][2][3].]
5. Attached hereto as ANNEX [1][2][3][4] are reasonably detailed computations of the Fixed Charge Coverage Ratio for the Test Period
ended [ ].
| 1 |
To be included if any Default or Event of Default has occurred and is continuing. |
EXHIBIT K
Page 2
[6. Attached hereto as ANNEX [1][2][3][4][5] are the calculations, set forth in reasonable
detail, required by Section 10.04(n)(vii) of the Credit Agreement.]2
* * *
| 2 |
To be included if any Indebtedness has been incurred pursuant to Section 10.04(n) of the Credit Agreement since the date of the most recent Compliance Certificate delivered pursuant to Section 9.01(d) of the
Credit Agreement (or, if this certificate is the first delivered, the Effective Date). |
EXHIBIT K
Page 3
IN WITNESS WHEREOF, I have executed this Compliance Certificate as of the date first written above.
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| TESLA MOTORS, INC. |
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| By: |
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| Name: |
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| Title: |
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[ANNEX 1]
[Applicable Financial Statements To Be Attached]
[ANNEX [1][2]]
[Specify in reasonable detail the nature and extent of any Default or Event of Default]
[ANNEX [1][2][3]]
[Details of the changes to Schedule 10.11 of the Disclosure Letter]
[ANNEX [1][2][3][4]
The information described herein is as of ,
1 (the “Computation Date”) and, except as otherwise indicated below, pertains to the period from [first day
of applicable Test Period] to the Computation Date (the “Relevant Period”).
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| Financial Covenants |
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Amount |
| A. |
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Financial Covenant |
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(i) |
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Fixed Charge Coverage Ratio (Section 10.07) |
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a. |
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Consolidated EBITDA2 for the Relevant Period ended on the Computation Date minus (i) the aggregate amount of all Unfinanced Capital Expenditures made by the Company and its
Subsidiaries during such period minus (ii) the aggregate amount of all cash payments made by the Company and its Subsidiaries in respect of income taxes or income tax liabilities (net of cash income tax refunds) during such period minus
(iii) 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 of the Credit Agreement for such period. |
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$ |
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b. |
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Fixed Charges3 for the Relevant Period ended on the Computation Date |
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$ |
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c. |
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Ratio of line a to line b |
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:1.00 |
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d. |
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Minimum required pursuant to Section 10.07 (during a Compliance Period only) |
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1.00:1.00 |
| 1 |
Insert the last day of the respective Fiscal Month, Fiscal Quarter or Fiscal Year covered by the financial statements which are required to be accompanied by this Compliance Certificate. |
| 2 |
Attach hereto in reasonable detail the calculations required to arrive at Consolidated EBITDA for purposes of the Fixed Charge Coverage Ratio. |
| 3 |
Attach hereto in reasonable detail the calculations required to arrive at Fixed Charges for the Relevant Period. |
[ANNEX [1][2][3][4][5]]
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| Indebtedness |
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Amount |
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| A. |
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Amount of Indebtedness (the “Subject Indebtedness”) incurred pursuant to Section 10.04(n) during the applicable period: |
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$ |
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| B. |
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Compliance |
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[(i) |
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Aggregate principal amount of Subject Indebtedness incurred as Ratio-Related Permitted Indebtedness |
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$ |
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(ii) |
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Total Leverage Ratio (after giving effect to the incurrence of such Indebtedness on the date of such incurrence)1 |
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(a) Consolidated Total Indebtedness2 on the date of determination |
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$ |
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(b) Consolidated EBITDA for the Test Period most recently ended on or prior to the date of determination |
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$ |
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(c) Ratio of line a to line b |
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:1.00 |
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(iii) |
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Maximum pursuant to clause (a) of the definition of Permitted Ratio Indebtedness |
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6.00:1.00 |
]3 |
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[(i) |
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Aggregate principal amount of Subject Indebtedness incurred as Basket-Related Permitted Indebtedness |
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$ |
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(ii) |
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Aggregate outstanding principal amount of Basket-Related Permitted Indebtedness (after giving effect to the incurrence of the Subject Indebtedness) |
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$ |
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(ii) |
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Not to exceed at any time |
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$ |
2,000,000,000 |
]4 |
| 1 |
To be calculated as of the date of each incurrence of Indebtedness during the period covered by this Compliance Certificate. |
| 2 |
Attach hereto in reasonable detail the calculations required to arrive at Consolidated Total Indebtedness. |
| 3 |
Include calculations if all or any part of the Subject Indebtedness was incurred as Ratio-Related Permitted Indebtedness. |
| 4 |
Include if all or any part of the Subject Indebtedness was incurred as Basket-Related Permitted Indebtedness. |
ANNEX [1][2][3][4][5]
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[(i) |
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Aggregate principal amount of Subject Indebtedness incurred pursuant to the $1,000,000 basket set forth in Section 10.04(n) |
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$ |
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(ii) |
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Aggregate principal amount of Indebtedness incurred and outstanding pursuant to Sections 10.04(n) and 10.04(o) (after giving effect to the incurrence of the Subject Indebtedness) |
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$ |
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(ii) |
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Not to exceed at any time |
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$ |
1,000,000,000 |
]5 |
| 5 |
Include if all or any part of the Subject Indebtedness was incurred in reliance on such basket. |
EXHIBIT L
FORM OF ASSIGNMENT
AND
ASSUMPTION AGREEMENT1
This Assignment and Assumption Agreement (this “Assignment”), is dated as of the
Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item [1][2] below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2 below ([the][each, an]
“Assignee”). [It is understood and agreed that the rights and obligations of such [Assignees][and Assignors] hereunder are several and not joint.] Capitalized terms used herein but not defined herein shall have the meanings given to
them in the ABL Credit Agreement identified below (as amended, restated, supplemented and/or otherwise modified from time to time, the “Credit Agreement”). The Standard Terms and Conditions for Assignment and Assumption Agreement
set forth in Annex 1 hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the][each] Assignee, and [the][each] Assignee hereby irrevocably
purchases and assumes from [the][each] Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, the interest in and
to all of [the][each] Assignor’s rights and obligations under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the [respective]
Assignor’s outstanding rights and obligations identified below (including Revolving Loans, Letters of Credit and Swingline Loans) ([the][each, an] “Assigned Interest”). [Each such][Such] sale and assignment is without recourse
to [the][any] Assignor and, except as expressly provided in this Assignment, without representation or warranty by [the][any] Assignor.
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| [1. |
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Assignor: |
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| 2. |
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Assignee: |
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]2 |
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| [1][3]. |
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Credit Agreement: |
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ABL Credit Agreement, dated as of June 10, 2015, among Tesla Motors, 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 the Company that becomes a Dutch Borrower pursuant to
the terms of the Credit Agreement, collectively, the |
| 1 |
This Form of Assignment and Assumption Agreement should be used by Lenders for an assignment to a single Assignee or to funds managed by the same or related investment managers. |
| 2 |
If the form is used for a single Assignor and Assignee, items 1 and 2 should list the Assignor and the Assignee, respectively. In the case of an assignment to funds managed by the same or related investment managers, or
an assignment by multiple Assignors, the Assignors and the Assignee(s) should be listed in the table under bracketed item 2 below. |
EXHIBIT L
Page 2
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“Dutch Borrowers”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders party thereto from time to time, Deutsche Bank AG New York Branch, as
Collateral Agent and as Administrative Agent, and the other agents party thereto. |
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| [2. |
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Assigned Interest:3 |
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| Assignor |
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Assignee |
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Aggregate Amount
of Total Revolving
Loan Commitment |
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Amount of Revolving
Loan Commitment/
Revolving Loans
Assigned |
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Percentage Assigned
of Revolving Loan
Commitments |
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| [Name of Assignor] |
|
[Name of
Assignee] |
|
$ |
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$ |
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% |
| [Name of Assignor] |
|
[Name of
Assignee] |
|
$ |
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$ |
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|
% |
| 3 |
Insert this chart if this Form of Assignment and Assumption Agreement is being used for assignments to funds managed by the same or related investment managers or for an assignment by multiple Assignors. Insert
additional rows as needed. |
EXHIBIT L
Page 3
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| Aggregate Amount of Total
Revolving Loan Commitment |
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Amount of Revolving Loan
Commitment/ Revolving
Loans Assigned |
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Percentage Assigned of
Revolving Loan
Commitments |
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| $ |
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$ |
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% |
Effective Date
, , 20 .
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| Assignor[s] Information |
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Assignee[s] Information |
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| Payment Instructions: |
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Payment Instructions: |
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Reference: |
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Reference: |
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| Notice Instructions: |
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Notice Instructions: |
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Reference: |
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Reference: |
The terms set forth in this Assignment are hereby agreed to:
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| ASSIGNOR |
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ASSIGNEE |
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| [NAME OF ASSIGNOR] |
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[NAME OF ASSIGNEE]5 |
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| By: |
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By: |
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| Name: |
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Name: |
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| Title: |
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Title: |
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| 4 |
Insert this chart if this Form of Assignment and Assumption Agreement is being used by a single Assignor for an assignment to a single Assignee. |
| 5 |
Add additional signature blocks, as needed, if this Form of Assignment and Assumption Agreement is being used by funds managed by the same or related investment managers. |
EXHIBIT L
Page 4
|
|
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| Consented to and Accepted: |
| DEUTSCHE BANK AG NEW YORK BRANCH, |
| as Administrative Agent |
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| By: |
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| Name: |
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| Title: |
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| By: |
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| Name: |
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| Title: |
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| [TESLA MOTORS, INC. |
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| By: |
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| Name: |
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| Title:]6 |
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| [NAME OF EACH ISSUING LENDER],
as Issuing Lender |
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| By: |
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| Name: |
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| Title: |
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| 6 |
Insert only if no Event of Default is then in existence and the assignment is being made to an Eligible Transferee pursuant to 13.04(b)(y) of the Credit Agreement. Consent of the Company shall not be unreasonably
withheld or delayed, provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice hereof.
|
ANNEX 1
TESLA MOTORS, INC.
CREDIT
AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations
and Warranties.
1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of
[the][its] Assigned Interest, (ii) [the][its] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Credit Document or any other instrument or document delivered pursuant thereto (other than this Assignment) or any collateral
thereunder, (iii) the financial condition of the Company or any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the Company or any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document.
1.2. Assignee. [The][Each]
Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) confirms that it is (A) a Lender and does not form part of the public (as such term is understood under the Dutch Financial Markets Supervision Act), (B) the parent company and/or an Affiliate of [the][each]
Assignor which is at least 50% owned by [the][each] Assignor or its parent company, (C) an Affiliate of any other Lender which is at least 50% owned by such other Lender or its parent company (provided that any fund that invests in loans and is
managed or advised by the same investment advisor of another fund which is a Lender (or by an Affiliate of such investment advisor) shall be treated as an Affiliate of such other Lender for the purposes of this paragraph 1.2), provided, that no such
assignment may be made to any such Person that is, or would at such time constitute, a Defaulting Lender, (D) in the case of any Lender that is a fund that invests in loans, any other fund that invests in loans and is managed or advised by the
same investment advisor of any Lender or by an Affiliate of such investment advisor or (E) an Eligible Transferee under Section 13.04(b) of the Credit Agreement; (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][its] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 9.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to
purchase [the][its] Assigned Interest on the basis of which it has made such analysis and decision and (v) if it is organized under the
ANNEX 1
Page 2
laws of a jurisdiction outside the United States, it has attached to this Assignment any tax documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by it; (b) agrees that it will, independently and without reliance upon the Administrative Agent, [the][each] Assignor, or any other Lender and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (c) appoints and authorizes each of the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to or otherwise conferred upon the Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as
are reasonably incidental thereto; and (d) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.
2. Payment. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including
payments of principal, interest, fees, commissions and other amounts) to [the][each] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][each] Assignee for amounts which have accrued from and after the Effective
Date.
3. Effect of Assignment. Upon the delivery of a fully executed original hereof to the Administrative Agent, as of the Effective Date,
(i) [the][each] Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment, have the rights and obligations of a Lender under the Credit Agreement and the other Credit Documents and (ii) [the][each]
Assignor shall, to the extent provided in this Assignment and subject to and in accordance with the Credit Agreement and the other Credit Documents, relinquish its rights and be released from its obligations under the Credit Agreement and the other
Credit Documents.
4. General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5.1401 OF THE
GENERAL OBLIGATIONS LAW).
* * *
EXHIBIT M
FORM OF LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT
This LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT (this “Agreement”) is dated as of
[ ] [ ], 20[ ]
and entered into by [NAME OF LANDLORD] (“Landlord”), to and for the benefit of DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), as Collateral Agent for the Secured Creditors (as defined in the Credit Agreement referred to
below) (in such capacity and together with any successor thereto in such capacity, the “Collateral Agent”). Unless otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement referred to below
shall be used herein as therein defined.
RECITALS:
WHEREAS, Landlord is the record title holder and owner of certain real property located at [ADDRESS OF PROPERTY] (the “Real
Property”);
WHEREAS, [NAME OF TENANT], a [STATE OF INCORPORATION/ FORMATION] (“Tenant”), has possession
of and occupies all or a portion of the Real Property (the “Premises”);
WHEREAS, Tenant’s interest in the
Premises arises under the lease agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Lease”) more particularly described on Exhibit B annexed hereto and to which Landlord and
Tenant are a party;
WHEREAS, reference is made to that certain ABL Credit Agreement, dated as of June 10, 2015 (as it may be
amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among [Tenant], [Tesla Motors, Inc. (the “Company”)], (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 other
Wholly-Owned Dutch Subsidiary of the Company that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively,
the “Borrowers”), the lenders party thereto from time to time, DBNY, as Collateral Agent and as Administrative agent (together with any successor administrative agent, the “Administrative Agent”), and the other
agents party thereto, pursuant to which [Tenant][Tenant (an affiliate of the Company)] has executed a security agreement and other collateral documents (collectively, the “Security Documents”) in relation to the Credit Agreement,
the Secured Hedging Agreements (as defined in the Security Documents) and the Treasury Services Agreements (as defined in the Security Documents);
WHEREAS, Tenant’s repayment of (or guaranty of) the extensions of credit made by the Secured Creditors under the Credit Agreement
and/or any other Secured Debt Agreements (as defined in the Security Documents) will be secured, in part, by all inventory now or hereafter located on the Premises (together with all proceeds thereof, collectively, the
“Collateral”); and
EXHIBIT M
Page 2
WHEREAS, the Collateral Agent has requested that Landlord execute this Agreement as a
requirement under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby represents and warrants to, and covenants and agrees with, the Collateral Agent as follows:
1. Landlord Lien. (a) Landlord hereby (i) waives and releases unto the Collateral Agent and its successors and assigns any
and all landlord’s liens and security interests created by statute, contract (including the Lease) or by common law and any and all rights granted by or under any present or future laws to levy or distraint for rent or any other charges which
may be due to Landlord against the Collateral, and any and all other claims, liens and demands of every kind which it now has or may hereafter have against the Collateral (including, without limitation, any right to include the Collateral in any
secured financing that Landlord may become a party to), and (ii) agrees that any rights it may have in or to the Collateral, no matter how arising (to the extent not effectively waived pursuant to clause (a)(i) of this paragraph 1), shall be
subordinate to the rights of the Collateral Agent in respect thereof. Landlord acknowledges that the Collateral is and will remain personal property and not fixtures or part of the underlying real estate even though it may be affixed to or placed on
the Premises.
(b) Landlord further agrees not to assert any claim to the Collateral while Tenant is indebted under (or in respect of) the
Credit Agreement or any other Secured Debt Agreement. Landlord acknowledges that the Collateral Agent shall have a first priority security interest in the Collateral and that the Collateral Agent shall have the right to file and record Uniform
Commercial Code financing statements against the Collateral.
2. Nature of Collateral. The Collateral may be installed in or
located on the Premises and is not and shall not be deemed to be a fixture or part of the underlying real estate but shall at all times be considered personal property.
3. Status of Lease. Landlord certifies that (a) Landlord is the landlord under the Lease, (b) the Lease is in full force and
effect and has not been amended, modified, assigned or supplemented except as set forth on Exhibit A annexed hereto, (c) to the knowledge of Landlord, there is no defense, offset, claim or counterclaim by or in favor of Landlord against
Tenant under the Lease or against the obligations of Landlord under the Lease, (d) no notice of default has been given under or in connection with the Lease which has not been cured, and Landlord has no knowledge of the occurrence of any other
default under or in connection with the Lease, (e) no consent is required by any mortgage of the Premises as a condition precedent to Landlord executing this Agreement and (f) except as disclosed to the Collateral Agent, no portion
of the Premises is encumbered in any way by any deed of trust or mortgage lien or ground or superior lease.
4. Collateral
Agent’s Access. (a) Landlord agrees that while the Lease is in effect (including during any extension or renewal periods) it will not prevent the Collateral Agent or its agents, representatives and/or employees from entering upon the
Premises at all reasonable times to inspect, appraise or remove the Collateral.
EXHIBIT M
Page 3
(b) In the event that Landlord either deems itself entitled to redeem or take possession of
the Premises during the term of the Lease or intends to terminate the Lease prior to the expiration of the term thereof due to a default of Tenant thereunder, Landlord will deliver notice (the “Termination Notice”) to the Collateral
Agent to that effect not less than twenty (20) days before taking such action. Landlord agrees that within the 90-day period after the Collateral Agent receives the Termination Notice (the “Disposition Period”), the Collateral
Agent and/or its agents, representatives and/or employees shall have the right, but not the obligation, to enter upon and into the Premises for the purpose of assembling, repossessing, appraising, displaying, removing, preparing for sale or lease,
repairing, transferring, selling (at public or private sale) or otherwise dealing with the Collateral. Landlord further agrees that during the Disposition Period, Landlord will not interfere with the Collateral Agent’s and/or its agents,
representatives and/or employees’ actions in removing the Collateral from the Premises or such other of the Collateral Agent’s and/or its agents, representatives and/or employees’ actions in otherwise enforcing its security interest
in the Collateral. Notwithstanding anything to the contrary in this paragraph, Landlord acknowledges that the Collateral Agent shall at no time have any obligation to remove the Collateral from the Premises. The Collateral Agent shall not be liable
for any diminution in value of the Premises caused by the absence of the Collateral actually removed or by the need to replace the Collateral after such removal. For the actual period of occupancy by the Collateral Agent during the Disposition
Period, the Collateral Agent will pay to Landlord a fee equal to the basic rent required to be paid under the Lease by Tenant as if the Lease were in full force and effect, pro rated on a per diem basis based on a 30 day month, to the extent that
such amount is not paid by Tenant.
(c) In entering upon or into the Premises under either clause (a) or (b) set forth above of
this paragraph 4, the Collateral Agent hereby agrees to indemnify, defend and hold Landlord harmless from and against any and all claims, judgments, liabilities, costs and expenses incurred by Landlord and caused solely by the Collateral Agent
entering upon or into the Premises and taking any of the foregoing actions with respect to the Collateral. Such costs shall include any damage to the Premises made by the Collateral Agent in severing and/or removing the Collateral therefrom and
taking any of the foregoing actions with respect to the Collateral. Additionally, the Collateral Agent shall repair, at its sole cost and expense, any physical damage to the Premises actually caused by the Collateral Agent’s and/or its agents,
representatives and/or employees’ taking any of the foregoing actions with respect to the Collateral.
5. Default Notices.
Landlord shall send to the Collateral Agent a copy of any notice of default under the Lease sent by Landlord to Tenant (the “Default Notice”). Any Default Notice shall state the nature of the default and shall specify the amounts of
rent or other payments provided for that are claimed to be in default.
6. Default and Cure Rights. Notwithstanding anything to the
contrary contained in the Lease, and without thereby assuming Tenant’s obligations under the Lease, in the event of a default by Tenant under the Lease, the Collateral Agent shall have the right, but not the obligation, to cure any such
default(s) within the later of (a) thirty (30) days following receipt of a Default Notice, and (b) the last day of the cure period available to Tenant under the terms of the Lease (except with respect to payment default(s), which cure
must be made within the later of (i) fifteen (15) days following receipt of a Default Notice, and (ii) the last day of the cure
EXHIBIT M
Page 4
period available to Tenant under the terms of the Lease with respect to payment default(s)); provided, however, that if a non-monetary default cannot reasonably be cured by the Collateral Agent
within such thirty (30) day period, the Collateral Agent shall have such additional period of time as shall be reasonably necessary (at Landlord’s reasonable discretion) to cure such non-monetary default so long as the Collateral Agent
commences such curative measures within such thirty (30) day period and thereafter proceeds diligently to complete such curative measures.
7. Estoppel Certificate. Within fifteen (15) days after written request therefor from the Collateral Agent, but no more frequently
than two (2) times per any twelve (12) month period Landlord shall deliver to the Collateral Agent (and any other party identified by the Collateral Agent) an estoppel certificate signed by Landlord in form reasonably designated by the
Collateral Agent that certifies as to: (a) the rent payable under the Lease; (b) the term of the Lease and the rights of Tenant, if any, to extend the term of the Lease; (c) the nature of any defaults by Tenant alleged by Landlord;
and (d) any other matters reasonably requested by the Collateral Agent.
8. Delivery of Notices. All notices to the Collateral
Agent under this Agreement shall be in writing and sent to the Collateral Agent by telefacsimile, by United States certified mail, return receipt requested, or by overnight delivery service at the address set forth on the signature page to this
Agreement.
9. Expiration of Agreement. The provisions of this Agreement shall continue in effect until the earlier of (a) the
date on which the Lease would otherwise terminate absent a Tenant default, and (b) Landlord shall have received the Collateral Agent’s written certification that all amounts advanced under the Credit Agreement and the other Secured Debt
Agreements and all obligations thereunder have been paid in full and all such agreements have been terminated.
10. Governing Law.
This Agreement and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the law of the State in which the Premises are located, without regard to conflicts of laws
principles.
11. Successors and Assigns. The terms and provisions of this Agreement shall inure to the benefit of and be binding
upon the successor and assigns of Landlord (including any successor owner of the Real Property) and the Collateral Agent. Landlord will disclose the terms and conditions of this Agreement to any purchaser or successor to Landlord’s interest in
the Premises.
12. Amendments. This Agreement may not be changed or terminated orally and is binding upon, and inures to the
benefit of, the parties hereto and each of their respective successors and assigns. Landlord will disclose the terms and provisions of this Agreement to any purchaser of, or successor to, Landlord’s interest in the Premises.
13. No Assumption. No action by the Collateral Agent or its agents, representatives and/or employees pursuant to this Agreement shall
be deemed to be an assumption by the Collateral Agent of the Lease and, except as expressly provided herein, the Collateral Agent shall not have any obligations to Landlord.
EXHIBIT M
Page 5
14. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but together the counterparts shall constitute one and the same document.
15. Secured Debt
Agreements. The Secured Creditors may, without in any way affecting or limiting this Agreement, and without notice to Landlord, modify, supplement, restate (in whole or in part) or refinance any Secured Debt Agreement.
16. Conflicts. In the event of any conflicts between the terms and provisions of this Agreement and the terms and provisions of the
Lease, the terms and provisions of this Agreement shall control. The foregoing notwithstanding, however, nothing contained herein shall be deemed to amend or modify the terms of the Lease as between Landlord and Tenant.
17. Waiver of Jury Trial. THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO
THIS AGREEMENT
[Remainder of page intentionally left blank]
EXHIBIT M
Page 6
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and
delivered as of the day and year first set forth above.
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DEUTSCHE BANK AG NEW YORK BRANCH |
| New York, New York 10005 Attention: Phelecia
Parker |
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EXHIBIT M
Page 7
EXHIBIT A TO
LANDLORD WAIVER AND CONSENT
Description of Lease (including any amendments thereto and assignments thereof):
[Landlord to provide]
EXHIBIT N
FORM OF JOINDER AGREEMENT
THIS JOINDER
IN [CREDIT AGREEMENT, [U.S.][DUTCH] BORROWER REVOLVING NOTES, [U.S.][DUTCH] BORROWER SWINGLINE NOTE,] [and] [U.S.][DUTCH] GUARANTY and [U.S.][DUTCH GENERAL] SECURITY AGREEMENT44 (this
“Joinder”) is executed as of , 20 by [NAME
OF NEW SUBSIDIARY], a [corporation][limited liability company][partnership] (the “Joining Party”), and delivered to Deutsche Bank AG New York Branch, as
Administrative Agent and as Collateral Agent, for the benefit of the Secured Creditors (as defined below). Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein
defined.
W I T N E S S E T H:
WHEREAS, Tesla Motors, 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 Borrower pursuant to the terms of the Credit Agreement, collectively, the “Dutch Borrowers”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the various lenders
from time to time party thereto (the “Lenders”), Deutsche Bank AG New York Branch, as Administrative Agent and as Collateral Agent, and the other agents party thereto, have entered into an ABL Credit Agreement, dated as of
June 10, 2015 (as the same may be amended, modified or supplemented from time to time, the “Credit Agreement”), providing for the making of Loans to, and the issuance of Letters of Credit for the account of, the Borrowers as
contemplated therein (the Lenders, each Issuing Lender, the Administrative Agent and the Collateral Agent are herein called the “Secured Creditors”);
WHEREAS, the Joining Party is a Wholly-Owned [Domestic][Dutch] Subsidiary of [the Company][Tesla B.V.] and desires, or is required pursuant to the provisions
of the Credit Agreement, to become [a [U.S.][Dutch] Borrower under the Credit Agreement,] a Guarantor under the [U.S.][Dutch] Guaranty[,] [and] an Assignor under the [U.S.][Dutch General] Security Agreement[ and a Pledgor under the Dutch Inventory
Security Agreement and the Dutch Receivables Security Agreement]; and
WHEREAS, the Joining Party will obtain benefits from [(x)] the incurrence of Loans
by the Borrowers, and the issuance of, and participation in, Letters of Credit for the account of the Borrowers, in each case pursuant to the Credit Agreement[ and (y) the entering into Secured Hedging Agreements and Treasury Services
Agreements (each as defined in the U.S. Security Agreement)], and, accordingly, desires to execute this Joinder in order to (i) satisfy the requirements described in the preceding paragraph[,] [and] (ii) induce the Lenders to make Loans to
the Borrowers and issue, and/or participate in, Letters of Credit for the account of the Borrowers[ and (iii) induce the Secured Creditors to enter into Secured Hedging Agreements and Treasury Services Agreements];
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To include Intercreditor Agreement if in effect. |
EXHIBIT N
Page 2
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to the Joining Party, the
receipt and sufficiency of which are hereby acknowledged, the Joining Party hereby makes the following representations and warranties to the Secured Creditors and hereby covenants and agrees with each Secured Creditor as follows:
1. By this Joinder, the Joining Party becomes (i) [a [U.S.][Dutch] Borrower for all purposes under the Credit Agreement, (ii)] a
[U.S.][Dutch] Guarantor for all purposes under the [U.S.][Dutch] Guaranty, pursuant to Section 23 thereof and [(ii)][(iii)] an Assignor for all purposes under the [U.S.][Dutch General] Security Agreement, pursuant to Section 8.12 thereof.
[2. The Joining Party agrees that, upon its execution hereof, it will become a [U.S.][Dutch] Borrower under the Credit Agreement, and
will be bound by all terms, conditions, obligations, liabilities and duties applicable to a [U.S.][Dutch] Borrower under the Credit Agreement and the other Credit Documents (including each [U.S.][Dutch] Borrower Revolving Note and the [U.S.][Dutch]
Borrower Swingline Note, whether or not such Joining Party actually signs a counterpart thereof). Without limitation of the foregoing, and in furtherance thereof, the Joining Party agrees, on a joint and several basis with the other [U.S.][Dutch]
Borrowers, to irrevocably and unconditionally pay in full all of the Obligations of the [U.S.][Dutch] Borrowers in accordance with the terms of the Credit Agreement and the other Credit Documents.]
3. The Joining Party agrees that, upon its execution hereof, it will become a [U.S.][Dutch] Guarantor under the [U.S.][Dutch] Guaranty with
respect to all Guaranteed Obligations (as defined in the [U.S.][Dutch] Guaranty), and will be bound by all terms, conditions, obligations, liabilities and duties applicable to a [U.S.][Dutch] Guarantor under the [U.S.][Dutch] Guaranty and the other
Credit Documents. Without limitation of the foregoing, and in furtherance thereof, the Joining Party absolutely, unconditionally and irrevocably, and jointly and severally, guarantees the due and punctual payment and performance when due of all
Guaranteed Obligations (on the same basis as the other [U.S.][Dutch] Guarantors under the [U.S.][Dutch] Guaranty).
4. The Joining Party
agrees that, upon its execution hereof, it will become an Assignor under, and as defined in, the [U.S.][Dutch General] Security Agreement, and will be bound by all terms, conditions, obligations, liabilities and duties applicable to an Assignor
under the [U.S.][Dutch General] Security Agreement. Without limitation of the foregoing and in furtherance thereof, as security for the due and punctual payment when due of the Obligations (as defined in the [U.S.][Dutch General] Security
Agreement), the Joining Party hereby pledges and grants to the Collateral Agent for the benefit of the Secured Creditors a security interest in all its right, title and interest in, to and under the Security Agreement Collateral, if any, now owned
or hereafter acquired by it, in each case to the extent provided and subject to the limitations set forth in the [U.S.][Dutch General] Security Agreement.
[5. The Joining Party agrees that, concurrently with its execution hereof, it shall execute and deliver any security agreements, supplements,
joinders or similar documents required to become a Pledgor under the Dutch Inventory Security Agreement and Dutch Receivables Security Agreement, which aforementioned documents shall be attached hereto as Annex I.]45
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Include if the Joining Party is a Wholly-Owned Dutch Subsidiary. |
EXHIBIT N
Page 3
6. The Joining Party hereby makes and undertakes, as the case may be, each covenant,
representation and warranty made by, and as (i) [each [U.S.][Dutch] Borrower under the Credit Agreement, (ii)] each [U.S.][Dutch] Guarantor pursuant to Section 9 of the [U.S.][Dutch] Guaranty [and][,] [(ii)][(iii)] each Assignor pursuant
to Articles II, III, IV, V and VI of the [U.S.][Dutch General] Security Agreement[ and [(iii)][(iv)] each Pledgor pursuant to Clauses 3, 4, 5 and 6 of the Dutch Inventory Security Agreement and Clauses 4, 5, 6 and 7 of the Dutch Receivables Security
Agreement], in each case as of the date hereof (except to the extent any such representation or warranty relates solely to an earlier date in which case such representation and warranty shall be true and correct in all material respects as of such
earlier date), and agrees to be bound by all covenants, agreements and obligations of a [U.S.][Dutch] Guarantor [and][,] an Assignor [and a Pledgor] pursuant to the [U.S.][Dutch] Guaranty [and][,] the [U.S.][Dutch General] Security Agreement[
and the Dutch Inventory Security Agreement and Dutch Receivables Security Agreement], respectively, and all other Credit Documents to which it is or becomes a party.
7. Annexes [A, B, C, D and E][B, C and D] to the [U.S.][Dutch General] Security Agreement are hereby amended by supplementing such Annexes
with the information for the Joining Party contained on Annexes [A, B, C, D and E][B, C and D] attached hereto as Annex [I][II].
8. This
Joinder shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforceable by each of the parties hereto and its successors and assigns, provided, however, that the
Joining Party may not assign any of its rights, obligations or interest hereunder or under any other Credit Document except as permitted by the Credit Documents. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK). This Joinder may be executed in any number of counterparts, each of which
shall be an original, but all of which shall constitute one instrument. In the event that any provision of this Joinder shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this
Joinder which shall remain binding on all parties hereto.
9. From and after the execution and delivery hereof by the parties hereto, this
Joinder shall constitute a “Credit Document” for all purposes of the Credit Agreement and the other Credit Documents.
10. Each
of the representations and warranties set forth in the Credit Agreement and each other Credit Document and applicable to the undersigned is true and correct in all material respects, both before and after giving effect to this Joinder on the date
hereof, except to the extent that any such representation and warranty relates solely to any earlier date, in which case
EXHIBIT N
Page 4
such representation and warranty is 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 similar language shall be true and correct in all respects on the date hereof or as of such earlier date, as applicable).
11. No Default or Event of Default exists as of the date hereof, or will result from the transactions contemplated by this Joinder on the date
hereof.
12. The effective date of this Joinder is
, 20 .
* * *
EXHIBIT N
Page 5
IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed as of the date first above
written.
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Accepted and Acknowledged by:
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| DEUTSCHE BANK AG NEW YORK BRANCH, |
| as Administrative Agent and as Collateral Agent |
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[ANNEX[ES] I [and II] to be attached by the Joining Party]
EXHIBIT O
FORM OF BORROWING BASE CERTIFICATE
The undersigned hereby certifies that:
(1) I am the duly elected [CHIEF FINANCIAL OFFICER][TITLE OF AUTHORIZED OFFICER] of TESLA MOTORS, INC., a Delaware corporation (the
“Company”).
(2) In accordance with Section 9.01(h) of that certain ABL Credit Agreement, dated as of June 10,
2015 (said ABL Credit Agreement, as it may be amended, restated, modified and/or supplemented, being the “Credit Agreement”, the capitalized terms defined therein and not otherwise defined herein being used herein as therein
defined), by and among the Company (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 other 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”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “Borrowers”), the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Collateral Agent and as Administrative
Agent, and the other agents party thereto, attached hereto as Annex 1 is a true and accurate calculation, in all material respects, of each of the U.S. Borrowing Base and the Dutch Borrowing Base as of
[ ], 20[ ], each determined in accordance with the requirements of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed as of
[ ], 20[ ].
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ANNEX 1
TO
EXHIBIT O
ANNEX 1 TO
BORROWING
BASE CERTIFICATE
PART A-U.S. BORROWING BASE
PART B-DUTCH BORROWING
BASE
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