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Solarcity Corp – IPO: ‘S-1’ on 10/5/12 – ‘EX-10.6’

On:  Friday, 10/5/12, at 4:08pm ET   ·   Private-to-Public:  Document/Exhibit ¶  –  Release Delayed   ·   Accession #:  1193125-12-416770   ·   File #:  333-184317

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

10/05/12  Solarcity Corp                    S-1¶                  34:34M                                    Donnelley … Solutions/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Registration Statement (General Form)               HTML   2.21M 
34: CORRESP   ¶ Comment-Response or Other Letter to the SEC         HTML      8K 
 2: EX-3.3      Amended and Restated Certificate of Incorporation   HTML    109K 
                of the Registrant                                                
 3: EX-3.4      Amended and Restated Bylaws of the Registrant       HTML    111K 
 4: EX-4.2      Form of Warrant to Purchase Series E Preferred      HTML     55K 
                Stock                                                            
 5: EX-4.3      Form of Warrant to Purchase Series F Preferred      HTML     97K 
                Stock                                                            
 6: EX-4.4      Seventh Amended and Restated Investor's Rights      HTML    156K 
                Agreement                                                        
 7: EX-10.1     Form of Indemnification Agreement for Directors     HTML     92K 
                and Executive Officers                                           
25: EX-10.10    Credit Agreement                                    HTML   1.25M 
 8: EX-10.2     2007 Stock Plan and Form of Agreements Used         HTML    206K 
                Thereunder                                                       
 9: EX-10.3     2012 Equity Incentive Plan and Form of Agreements   HTML    148K 
                Used Thereunder                                                  
10: EX-10.4     2012 Employee Stock Purchase Plan and Form of       HTML     85K 
                Agreements Used Thereunder                                       
11: EX-10.5     Office Lease Agreement                              HTML    286K 
12: EX-10.5A    First Amendment to Lease                            HTML     27K 
13: EX-10.5B    Second Amendment to Lease                           HTML     39K 
14: EX-10.6     Term Loan Agreement                                 HTML    220K 
15: EX-10.6A    First Amendment to Term Loan Agreement              HTML     33K 
16: EX-10.6B    Second Amendment to Term Loan Agreement             HTML     19K 
17: EX-10.6C    Third Amendment to Term Loan Agreement              HTML     27K 
18: EX-10.6D    Fourth Amendment and Waiver to Term Loan Agreement  HTML     22K 
19: EX-10.7     Revolving Credit Agreement                          HTML    362K 
20: EX-10.7A    First Amendment to Revolving Credit Agreement       HTML     19K 
21: EX-10.7B    Second Amendment to Revolving Credit Agreement      HTML     28K 
22: EX-10.7C    Third Amendment and Waiver to Revolving Credit      HTML     25K 
                Agreement                                                        
23: EX-10.8     Credit Agreement                                    HTML    413K 
24: EX-10.9     Offer Letter                                        HTML     29K 
26: EX-21.1     List of Subsidiaries                                HTML     17K 
27: EX-23.1     Consent of Independent Registered Public            HTML     12K 
                Accounting Firm                                                  
28: EX-99.1     Draft Registration Statement on Form S-1            HTML   1.69M 
                Confidentially Filed on April 26, 2012                           
29: EX-99.2     Draft Registration Statement on Form S-1            HTML   2.02M 
                Confidentially Filed on June 21, 2012                            
30: EX-99.3     Draft Registration Statement on Form S-1            HTML   2.05M 
                Confidentially Filed on July 20, 2012                            
31: EX-99.4     Draft Registration Statement on Form S-1            HTML   2.15M 
                Confidentially Filed on August 15, 2012                          
32: EX-99.5     Draft Registration Statement on Form S-1            HTML   2.16M 
                Confidentially Filed on August 30, 2012                          
33: EX-99.6     Draft Registration Statement on Form S-1            HTML   2.17M 
                Confidentially Filed on Sept 19, 2012                            

Exhibit 10.6

Execution

TERM LOAN AGREEMENT

Dated as of January 24, 2011

between

SOLARCITY CORPORATION,

as the Borrower

and

U.S. BANK NATIONAL ASSOCIATION,

as the Bank

TABLE OF CONTENTS

TABLE OF CONTENTS

(Cont’d)

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TABLE OF CONTENTS

(Cont’d)

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TERM LOAN AGREEMENT

This Term Loan Agreement (this “Agreement”) dated as of January 24, 2011 is by and between U.S. Bank National Association, a national banking association organized under the laws of the United States (the “Bank”), and SolarCity Corporation, a Delaware corporation (the “Borrower”).

“Activity-based” means recognizing all current and future revenues, expenses and associated income of a project at the time a contract is signed.

“Advance” means any drawing on the Loan honored by the Bank.

“Affiliate” means any person who directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Borrower. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the Borrower or other person or its board of directors, whether through stock ownership, membership, partnership rights, voting rights, governing boards, committees, divisions or other bodies with one or more common members, directors, partners, trustees, officers or other managers.

“Agreement” means this Agreement by and between the Bank and the Borrower, dated as of January 24, 2011.

“Available Amount” shall have the meaning set forth in Section 2.1(a) hereof.

“Bank” means U.S. Bank National Association, a national banking association organized under the laws of the United States.

“Borrower” means SolarCity Corporation, a Delaware corporation.

“Business Day” means any day other than (a) a Saturday, Sunday or legal holiday or (b) a day on which banking institutions in San Francisco, California or New York, New York are required or authorized by law (including executive order) to close.

“Cash & Cash Equivalents” means (a) money, currency or a credit balance in a deposit account, (b) short-term obligations of, or fully guaranteed by, the United States of America, (c) commercial paper rated A-1 or better by Standard & Poor’s Rating Services (or any successor) or P-1 or better by Moody’s Investors Service, Inc. (or any successor), (d) certificates of deposit issued by, and time deposits with, commercial banks (whether domestic or foreign) having capital and surplus in excess of One Hundred Million Dollars ($100,000,000.00), or (e) money market funds at least ninety-five percent (95%) of the holdings of which are the type described in causes (b) through (d).

“Closing Date” means January 24, 2011 or such other date as the Bank and the Borrower shall mutually agree as the date the Loan may initially be made pursuant to the terms of this Agreement.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” shall have the meaning set forth in Section 6.1(b) hereof.

“Default” means an event which with the passage of time or giving of notice or both would become an Event of Default under this Agreement.

“Dollar” means U.S. Dollar.

“Drawing Period” shall have the meaning set forth in Section 2.1(b) hereof.

“EBITDA” or “Activity-based EBITDA” means Activity-based operating income as represented by the Borrower before interest, taxes, depreciation, amortization and non-cash charges.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and all rules and regulations from time to time promulgated thereunder.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of Section 414 of the Code.

“ERISA Plan” or “Plan” means a pension, profit-sharing, or stock bonus plan intended to qualify under Section 401(a) of the Code, maintained or contributed to by the Borrower or any ERISA Affiliate, including any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA.

“Event of Default” means any of the events described in Article 10 hereof.

“Funded Debt” means total interest-bearing Indebtedness, including committed but unused credit facilities but excluding any Indebtedness that is non-recourse to the Borrower.

“GAAP” means generally accepted accounting principles in the United States, consistently applied.

“Indebtedness” means with respect to a specified Person, (a) all obligations for borrowed money, all installment sale and capitalized lease obligations and all reimbursement obligations in respect of letters of credit incurred or assumed by such Person (including, in the case of the Borrower, the Borrower’s Indebtedness under this Agreement and the Loan Documents), (b) all other obligations of such Person upon which interest is customarily charged, (c) all obligations of such Person to make swap payments under a Swap Contract, (d) all obligations of such Person issued or assumed as deferred construction price for completed work or deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business, but only if and so long as the same are payable on customary trade terms), and (e) all obligations,

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contingent or otherwise, of such Person guaranteeing or becoming surety for or having the economic effect of guaranteeing or becoming surety for any Indebtedness of any other Person in any manner, whether directly or indirectly, but only up to the amount so guaranteed.

“Interest Period” means the period commencing on the advance date of the applicable Advance and ending on the numerically corresponding day one (1) month thereafter matching the interest rate term selected by Borrower; provided, however, (a) if any Interest Period would otherwise end on a day which is not a New York Banking Day, then the Interest Period shall end on the next succeeding New York Banking Day unless the next succeeding New York Banking Day falls in another calendar month, in which case the Interest Period shall end on the immediately preceding New York Banking Day, or (b) if any Interest Period begins on the last New York Banking Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of the Interest Period), then the Interest Period shall end on the last New York Banking Day of the calendar month at the end of such Interest Period.

“LIBOR Rate” shall have the meaning set forth in Section 3.1(a) hereof.

“Lien” shall have the meaning set forth in Section 9.6 hereof.

“Liquid Assets” means total unrestricted Cash & Cash Equivalents, marketable securities and unused availability on committed credit facilities.

“Loan” shall have the meaning set forth in Section 2.1(a) hereof.

“Loan Documents” means this Agreement, the Security Documents and the Note.

“Master Agreement” means any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (including any related schedules).

“Material Adverse Change” means any material adverse effect on (a) the assets, liabilities, financial condition, business or operations of the Borrower from those reflected in the most current financial statements provided by the Borrower to the Bank or from the facts represented or warranted in this Agreement, any other Loan Document or any other document delivered to the Bank pursuant to this Agreement, (b) the ability of the Borrower to carry out its respective business as of the closing date or to meet or perform its Obligations under this Agreement or any of the other Loan Documents on a timely basis, or (c) the amount which the Bank would be likely to receive (after giving consideration to delays in payment and costs of enforcement) in a liquidation of the collateral, taken as a whole, granted, mortgaged, assigned or pledged to the Bank under the Loan Documents.

“Maturity Date” means the last day of the Repayment Period.

“New York Banking Day” shall have the meaning set forth in Section 3.1(b) hereof.

“Note” shall have the meaning set forth in Section 2.2 hereof.

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“Obligations” means the Loan, all other amounts owing to the Bank under the Loan Documents, the fees and expenses relating to this Agreement and the other Loan Documents, and all other obligations of the Borrower to the Bank arising under or in relation to the Loan Documents.

“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto under ERISA.

“Permitted Acquisitions” means the acquisitions listed on Schedule 1 attached hereto, or the acquisition by the Borrower of all or substantially all of the assets of another company, the controlling interest in another company, or not less than one hundred percent (100%) of the capital stock of or ownership interest in another company, provided that the company whose assets are being purchased, or whose capital stock or ownership interest is being acquired is in a line of business substantially similar to that of the Borrower as reasonably determined by the Borrower, and further provided that:

“Permitted Encumbrances” shall have the meaning set forth in Section 9.6 hereof.

“Permitted Indebtedness” means (a) all Indebtedness to the Bank, (b) Indebtedness to parties other than the Bank (including as a guaranty or surety or pursuant to a contingent liability) in an aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000.00) at any one time outstanding, (c) all other Indebtedness of the Borrower in existence as of the date of this Agreement and disclosed to the Bank on Schedule 2 attached hereto, (d) Indebtedness incurred solely for the purpose of financing the acquisition of equipment (and any accessions, attachments, replacements or improvements thereon), (e) Indebtedness incurred with respect to

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equipment leased to customers in the ordinary course of business, which Indebtedness is contemplated to be serviced by the related lease payment, (f) guaranties of obligations of Borrower’s subsidiaries, and (g) extensions, refinancing, modifications, amendments and restatements of any item of Permitted Indebtedness described in (a) through (f) above.

“Person” or words importing persons, means firms, associations, partnerships (including without limitation, limited liability company, general and limited partnerships), joint ventures, societies, estates, trusts, borrowers, public or governmental bodies, other legal entities and natural persons.

“Prime Rate” means the rate of interest in effect for such day as publicly announced from time to time by the Bank as its “prime rate.” The “prime rate” is set by the Bank based upon various factors including the Bank’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans. The Bank may price loans and loan to its customers at, above, or below the “prime rate.” Any change in the “prime rate” shall take effect at the opening of business on the day specified in the public announcement of a change in the Bank’s “prime rate.”

“Repayment Period” shall have the meaning set forth in Section 4.2 hereof.

“Security Agreement” means that certain Security Agreement dated as of January 24, 2011 made by the Borrower for the benefit of the Bank substantially in the form of Exhibit C attached hereto.

“Security Documents” means (a) the Security Agreement and (b) any related financing statements.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transactions is governed by or subject to any Master Agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, a Master Agreement, including any such obligations or liabilities under any Master Agreement. For purposes of calculating any payment obligations with respect to a Swap Contract, all amounts to be paid and received under such contracts shall be netted against each other on a one (1) month basis.

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The Loan shall be evidenced by the promissory note of the Borrower (the “Note”), in the form of Exhibit B attached hereto, payable to the order of the Bank and the Loan shall bear interest and otherwise be payable as provided in the Note and this Agreement; provided, however, in any event, the principal balance, all accrued but unpaid interest and all other sums owing on the Loan shall be due and payable on the Maturity Date or earlier, if the Loan is accelerated pursuant to this Agreement or any of the other Loan Documents. The Note shall be executed by the Borrower and delivered to the Bank on or prior to the Closing Date.

From and after the occurrence and during the continuance of an Event of Default, the unpaid principal amount of the Loan and all other amounts due and unpaid

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under this Agreement and the Note will bear interest until paid computed at a rate equal to Prime Rate plus two percent (2.00%).

Except as otherwise stated in this Agreement, all computations of interest and other amounts due under the Note and fees and other amounts due under this Agreement will be based on a three hundred sixty (360) day year using the actual number of days occurring in the period for which such interest, fees or other amounts are payable.

During the Drawing Period the Borrower shall make monthly interest payments on the Loan.

Upon expiration of the Drawing Period, the loan will automatically convert to a three (3) year (the “Repayment Period”) fully amortizing term loan. During the Repayment Period the Borrower shall make thirty-six (36) equal monthly payments of principal and interest on the Loan.

Interest on the Loan will accrue during the applicable Interest Period and will be due and payable on the last Business Day of the applicable Interest Period, and on the Maturity Date or other date of maturity of the Note, whether by acceleration pursuant to the terms of this Agreement or the Note.

All payments and prepayments of principal, interest and fees under this Agreement and the Note shall be made to the Bank prior to 2:00 p.m., Pacific time, in immediately available funds.

On the Closing Date, the Borrower shall pay to the Bank in immediately available funds a facility fee equal to twenty-five basis points (0.25%) of the Available Amount.

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In the event that any regulatory change should make it (or, in the good faith judgment of the Bank, should raise substantial questions as to whether it is) unlawful for the Bank to make, maintain or fund the Loan bearing interest at the LIBOR Rate, (a) the Bank will promptly notify the Borrower, (b) the obligation of the Bank to make the Loan bearing interest at the LIBOR Rate shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness, and (c) upon such notice, any outstanding principal amount of the Loan bearing interest at the LIBOR Rate made by the Bank will automatically convert into a Loan bearing interest at the Prime Rate plus three percent (3.00%) per annum, which rate shall change when and as the Prime Rate changes.

If any regulatory change affects the treatment of the Loan hereunder as an asset or other item included for the purpose of calculating the appropriate amount of capital to be maintained by the Bank or any corporation controlling the Bank and has the effect of reducing the rate of return on the Bank’s or such corporation’s capital as a consequence of the obligations of the Bank hereunder to a level below that which the Bank or such corporation could have achieved but for such regulatory change (taking into account the Bank’s or such corporation’s policies

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with respect to capital adequacy) by an amount deemed in good faith by the Bank to be material, then the Borrower shall pay to the Bank, on demand, such additional amount or amounts as will compensate the Bank or such corporation, as the case may be, for such reduction.

The Borrower shall promptly submit to the Bank invoices for any titled or untitled machinery and equipment purchased after January 1, 2010 that the Borrower desires to finance hereunder. Upon receipt and approval by the Bank that such invoices are for Collateral, the Bank will disburse to the Borrower up to one hundred percent (100.00%) of the amount of the invoice, such disbursements to be made not more frequently than a quarterly basis.

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All payments and disbursements which would be due on a day which is not a Business Day shall be due on the next Business Day. All payments received on a day which is not a Business Day shall be applied to the credit on the next Business Day.

If any payments to the Bank under this Agreement are made from outside the United States, the Borrower shall not deduct any foreign taxes from any payments it makes to the Bank. If any such taxes are imposed on any payments made by the Borrower (including payments under this Section 6.7), the Borrower shall pay the taxes and shall also pay to the Bank, at the time interest is paid, any additional amount which the Bank specifies as necessary to preserve the after-tax yield the Bank would have received if such taxes had not been imposed. The Borrower shall confirm that it has paid the taxes by giving the Bank official tax receipts (or notarized copies) within thirty (30) days after the due date.

Without limiting any of the other terms of this Agreement, the Bank shall not be required to make the Loan to the Borrower under this Agreement, unless the conditions set forth below are satisfied as of the Closing Date:

The Bank shall have received the following documents, in form satisfactory to the Bank:

The representations and warranties contained in Article 8 hereof continue to be true and correct on the Closing Date; no Default or Event of Default hereunder shall have occurred and be continuing; and there has been no Material Adverse

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Change in the business operations or financial condition of the Borrower and its Affiliates, taken as a whole, since June 30, 2010.

The Bank receives evidence that the execution, delivery and performance by the Borrower of this Agreement, the Note, the Security Agreement and any instrument or agreement required under this Agreement have been duly authorized and any instrument or agreement required under this Agreement have been duly authorized.

The Bank receives payment of all fees and other amounts due and owing to the Bank, including without limitation payment of all reimbursement costs as required by Article 5 hereof.

The Bank shall have received evidence of insurance coverage, as required in Section 9.10 of this Agreement.

The Borrower shall execute and deliver such other documents, instruments, certificates, opinions, approvals and assurances customary in this type of financing as the Bank may reasonably request.

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On the date that the Borrower signs this Agreement, on the Closing Date and on each day that an Advance is made, the Borrower makes the following representations and warranties continuously:

The Borrower is duly formed and existing under the laws of the state or other jurisdiction where organized.

The Loan Documents and any instrument or other agreement required hereunder, are within the Borrower’s powers, have been duly authorized, and do not conflict with any of its organizational papers.

Each of the Loan Documents is a legal, valid and binding agreement of the Borrower, enforceable against the Borrower, in accordance with its terms, and any other instrument or other agreement required hereunder, when executed and delivered, shall be similarly legal, valid, binding and enforceable, except, in each case, as limited by bankruptcy, insolvency or other similar laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

In each state in which the Borrower does business, it is respectively properly licensed, in good standing, and, where required, in compliance with fictitious name statutes.

The Loan Documents do not conflict with any law, obligation or material agreement by which the Borrower is bound.

Since the date of the most recent financial statement provided to the Bank, there has been no Material Adverse Change.

There is no lawsuit, tax claim or other dispute pending or threatened against the Borrower which is reasonably likely to impair the Borrower’s financial condition or ability to repay the Loan, except as have been disclosed in writing to the Bank.

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The Borrower possesses all permits, memberships, franchises, contracts and licenses required and all trademark rights, trade name rights, patent rights, copyrights, and fictitious name rights necessary to enable it to conduct the business in which it is now engaged except to the extent that the failure to so possess could not reasonably be expected to result in a Material Adverse Change.

The Borrower is not in default on any obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to the Bank.

The financial statements and other information provided to the Bank fairly present in all material respects the consolidated financial position of Borrower, including all material contingent liabilities, as of the dates presented therein and the results of operations for the periods presented therein and have been prepared in accordance with GAAP, except, with respect to unaudited interim financial statements.

The Borrower has no knowledge of any pending assessments or adjustments of its income tax for any year and the Borrower has paid or caused to be paid all material taxes due, except as have been disclosed in writing to the Bank.

There is no event currently in existence which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.

The Borrower has obtained, and maintained in effect, the insurance coverage required in Section 9.10 of this Agreement.

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The place of business of the Borrower (or, if the Borrower has more than one place of business, its chief executive office) is located at the address listed on the signature page of this Agreement, or at such other address as the Borrower shall provide to the Bank in writing.

The Borrower agrees that until the Loan is repaid in full:

During the term of this Agreement until the Loan and all other Obligations have been repaid in full, the Borrower shall:

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The Borrower shall maintain the following:

The Borrower shall not lend money or otherwise extend credit to any third party in excess of Five Hundred Thousand Dollars ($500,000.00) at any one time outstanding except (a) loans existing on the date hereof and disclosed in writing to the Bank, (b) travel advances, employee relocation loans and other employee loans and advances in the ordinary course of business, (c) debt obligations received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business, (d) receivable of, or prepaid royalties from and other credit obligations of, customers, suppliers and debtors of the Borrower in the ordinary course of business, (e) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of the Borrower, (f) deposit accounts maintained by the Borrower, (g) leases to customers of solar equipment in the ordinary course of business, (h) loans to subsidiaries of the Borrower to cover operating deficits or other obligations under partnership, membership or similar agreements, and (i) intercompany transactions with Affiliates.

The Borrower shall not incur, assume, or have outstanding any indebtedness for borrowed money (including capitalized leases), or guaranty or become a surety or otherwise contingently liable for any obligations of others, except Permitted Indebtedness.

The Borrower shall not create, incur, assume or permit to exist any mortgage, pledge, encumbrance or other lien or levy upon or security interest (“Liens”) in any of the Borrower’s property or assets, except (a) Liens arising under the Security Agreement or the other Loan Documents, (b) Liens securing Permitted Indebtedness, (c) Liens for taxes, fees, assessments or other government charges or levies, either not delinquent or being contested in good faith and for which Borrower maintains adequate reserves on its Books, (d) Leases or subleases and non-exclusive licenses or sublicenses granted in the ordinary course of Borrower’s business, (e) Liens existing on the date hereof and disclosed in writing

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to Bank, (f) Liens of carriers, warehousemen, mechanics, materialmen, vendors, and landlords incurred in the ordinary course of business for sums not overdue or being contested in good faith, provided provision is made for the eventual payment thereof if subsequently found payable, (g) Liens to secure payment of workers’ compensation, employment insurance, old-age pensions, social security and other like obligations incurred in the ordinary course of business, (h) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default, (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of customs duties in connection with the importation of goods, (j) Liens on insurance proceeds in favor of insurance companies granted solely as security for financed premiums, (k) Liens on the equity interests of the Borrower’s subsidiaries granted in connection with financing provided to such subsidiary, and (l) Liens incurred in the extension, renewal or refinancing of the Indebtedness secured by Liens, but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness may not increase (“Permitted Encumbrances”).

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The Borrower shall not acquire assets or capital stock of another company, except for Permitted Acquisitions or acquisitions of capital stock of subsidiaries and shall not merge or consolidate, except in connection with a Permitted Acquisition where Borrower is the surviving entity, liquidate, dissolve or wind up its affairs, sell, transfer, lease or otherwise dispose of a substantial part of its property (other than in the ordinary course of its business) or enter into or engage in any operation or activity materially different from that presently being conducted as of the dated of this Agreement, other than operations or activities reasonably related or incidental thereto.

The Borrower shall promptly notify the Bank in writing of:

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The Borrower shall comply with the laws (including any fictitious or trade name statute), regulations, and orders of any government body with authority over the Borrower’s business, except to the extent that a failure to do so could not reasonably be expected to result in a Material Adverse Change. The Bank shall have no obligation to make the Loan to the Borrower, except in compliance with all applicable laws and regulations and the Borrower shall fully cooperate with the Bank in complying with all such applicable laws and regulations.

The Borrower shall promptly during each year, pay and cause to be paid contributions adequate to meet at least the minimum funding standards under ERISA with respect to each and every Plan; file each annual report required to be filed pursuant to ERISA in connection with each Plan for each year; and notify the Bank within ten (10) days of the occurrence of any Reportable Event that might constitute grounds for termination of any capital Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer any Plan. Capitalized terms in this paragraph shall have the meanings defined within ERISA.

The Borrower shall with respect to a Plan subject to Title IV of ERISA, give prompt written notice to the Bank of:

The Borrower shall maintain books and records sufficient to prepare financial statements in accordance with GAAP.

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The Borrower shall allow the Bank and its agents to inspect the Borrower’s properties and examine, audit, and make copies of books and records at any reasonable time, limited to once per year unless an Event of Default or Material Adverse Change has occurred. If any of the Borrower’s properties, books or records are in the possession of a third party, the Borrower shall, at the Bank’s request, authorize that third party to permit the Bank or its agents to have access to perform inspections or audits and to respond to the Bank’s requests for information concerning such properties, books and records.

The Borrower shall take any action reasonably requested by the Bank to carry out the intent of this Agreement.

If any of the following Events of Default occurs and the Bank has not waived such Event of Default in writing, the Bank may do one or more of the following: declare the Borrower in default, stop making any additional credit available to the Borrower, and require the Borrower to repay its entire Indebtedness immediately and without prior notice. If an event which, with notice or the passage of time, will constitute an Event of Default has occurred and is continuing, the Bank has no obligation to make the Loan or extend additional credit under this Agreement. In addition, if any Event of Default occurs, the Bank shall have all rights, powers and remedies available under any instruments and agreements required by or executed in connection with this Agreement, including the Loan Documents, as well as all rights and remedies available at law or in equity. If an Event of Default occurs under Section 10.5 below, with respect to the Borrower, then the entire Indebtedness outstanding under this Agreement shall automatically be due immediately.

The occurrence of any one or more of the following events shall constitute an Event of Default:

The Borrower fails to make any payment of principal under this Agreement when due or any other payment within five (5) days of when due.

After giving effect to any applicable cure or grace period, any default occurs under the other Loan Documents or any guaranty, subordination agreement, security agreement, deed of trust, mortgage, or other document required by or delivered in connection with this Agreement or any such document is no longer in effect, or any guarantor purports to revoke or disavow any of the Loan Documents or any default occurs under any other Indebtedness owed to the Bank by the Borrower or any of the Borrower’s Affiliates.

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After giving effect to any applicable cure or grace period, any default occurs under any agreement in connection with any credit or Indebtedness the Borrower or any of the Borrower’s Affiliates has obtained from anyone else or which the Borrower or any of the Borrower’s Affiliates has guaranteed, in each case, in an amount at or greater than Five Hundred Thousand Dollars ($500,000.00), other than any indebtedness consisting of non-recourse loans to Affiliates that are special purpose entities.

Any representation or warranty made by the Borrower herein or any certificate delivered pursuant hereto, or any financial statement delivered to the Bank hereunder, shall prove to have been false in any material respect as of the time when made or given.

The Borrower shall: (a) become insolvent, or (b) be unable, or admit in writing its inability to pay its debts as they mature, or (c) make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its property, or (d) become the subject of an “order for relief” within the meaning of the United States Bankruptcy Code, or (e) become the subject of a creditor’s petition for liquidation, reorganization or to effect a plan or other arrangement with creditors, or (f) apply to a court for the appointment of a custodian or receiver for any of its assets, or (g) have a custodian or receiver appointed for any of its assets (with or without its consent), or (h) have assets in excess of One Hundred Thousand Dollars ($100,000.00) garnished, seized or forfeited, or threatened with garnishment, seizure or forfeiture, or (i) otherwise become the subject of any insolvency proceedings or propose or enter into any formal or informal composition or arrangement with its creditors.

Any lawsuit or lawsuits are filed on behalf of one or more trade creditors against the Borrower in an aggregate amount of Five Hundred Thousand Dollars ($500,000.00) or more in excess of any insurance coverage.

Any judgments or arbitration awards are entered against the Borrower, or the Borrower enters into any settlement agreements with respect to any litigation or arbitration, in an aggregate amount of Five Hundred Thousand Dollars ($500,000.00) or more in excess of any insurance coverage that remains unpaid or unstayed for more than thirty (30) days.

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Any material adverse change occurs on (a) the assets, liabilities, financial condition, business or operations of the Borrower from those reflected in the most current financial statements provided by the Borrower to the Bank or from the facts represented or warranted in this Agreement, any other Loan Document or any other document delivered to the Bank pursuant to this Agreement, (b) the ability of the Borrower to carry out its respective business as of the closing date or to meet or perform its Obligations under this Agreement or any of the other Loan Documents on a timely basis, or (c) the amount which the Bank would be likely to receive (after giving consideration to delays in payment and costs of enforcement) in a liquidation of the collateral, taken as a whole, granted, mortgaged, assigned or pledged to the Bank under the Loan Documents.

The Borrower fails to comply with any representation, warranty or covenant set forth in the Security Agreement and such failure is not cured within thirty (30) days.

Any government authority takes action that the Bank believes materially and adversely affects the Borrower’s financial condition or ability to repay.

Any one or more of the following events occurs with respect to a Plan of the Borrower subject to Title IV of ERISA, provided such event or events could reasonably be expected, in the judgment of the Bank, to subject the Borrower to any tax, penalty or liability (or any combination of the foregoing) which, in the aggregate, could have a material adverse effect on the financial condition of the Borrower:

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This Agreement or any other Loan Document shall, at any time after their respective execution and delivery, and for any reason, cease to be in full force and effect or be declared null and void, or be revoked or terminated other than as permitted hereunder, or the validity or enforceability thereof or hereof shall be contested by the Borrower or any shareholder of the Borrower, or the Borrower shall deny that it has any or further liability or obligation thereunder or hereunder, as the case may be, other than pursuant to a termination in accordance with its terms.

A default occurs under any other term or condition of this Agreement not specifically referred to in this Article. This includes any failure by the Borrower to comply with any covenants set forth in Article 9 of this Agreement, whether such failure is evidenced by financial statements delivered to the Bank or is otherwise known to the Borrower or the Bank. If, in the Bank’s opinion, the breach is capable of being remedied, the breach shall not be considered an Event of Default under this Agreement for a period of thirty (30) days after the date on which the Bank gives written notice of the breach to the Borrower.

Determinations and statements of the Bank pursuant to Sections 6.2 and 6.3 shall be rebuttably presumptive evidence of the correctness of the determinations and statements and shall be conclusive absent manifest error.

The Bank agrees that, as promptly as practicable after the officer of the Bank responsible for administering the Loan of the Bank becomes aware of the occurrence of an event or the existence of a condition that would entitle the Bank to receive payments under Section 6.3, it will, to the extent not inconsistent with the internal policies of the Bank and any applicable legal or regulatory restrictions, use reasonable efforts (a) to make, issue, fund or maintain the Loan through another lending office of the Bank, or (b) take such other measures as the Bank may deem reasonable, if as a result thereof the additional amounts which would otherwise be required to be paid to the Bank pursuant to Section 6.3, would be materially reduced and if, as determined by the Bank in its sole discretion, the making, issuing, funding or maintaining of such commitment or the Loan through such other lending office or in accordance with such other measures, as the case may be, would not otherwise materially adversely affect such commitment or the Loan or the interests of the Bank.

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The provisions of Sections 6.2 and 6.3 shall survive the obligation of the Bank to extend credit under this Agreement and the repayment of the Loan; provided that the Borrower shall not be under any obligation to compensate the Bank under Sections 6.2 and 6.3 above with respect to increased costs or reductions arising from any period prior to the date that is six (6) months prior to the date of such demand by the Bank if the Bank knew or could reasonably have been expected to be aware of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would in fact result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any law, regulation, rule, guideline or directive.

Except as otherwise stated in this Agreement, all financial information provided to the Bank and all financial covenants shall be made under GAAP, consistently applied, except with respect to unaudited interim financial statements.

This Agreement shall be governed by and construed in accordance with the laws of the State of California. To the extent that the Bank has greater rights or remedies under federal law, whether as a national bank or otherwise, this paragraph shall not be deemed to deprive the Bank of such rights and remedies as may be available under federal law.

This Agreement is binding on the Borrower’s and the Bank’s successors and assignees. The Borrower agrees that it may not assign this Agreement without the Bank’s prior consent. The Bank may sell participations in or assign the Advance to another lending institution, and may exchange information about the Borrower (including, without limitation, any information regarding any hazardous substances) with actual or potential participants or assignees; provided that such actual or potential participants or assignees shall agree to treat all non-public information exchanged as confidential. If a participation is sold or the Advance is assigned, the purchaser shall have the right of set-off against the Borrower.

EACH OF THE BANK AND THE BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER THE BANK OR THE BORROWER AGAINST THE OTHER.

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THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION SHALL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION SHALL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR THE DOCUMENTS.

If any part of this Agreement is not enforceable, the rest of this Agreement may be enforced. The Bank retains all rights, even if it makes an Advance after Default. If the Bank waives a Default, it may enforce a later Default. Any consent or waiver under this Agreement must be in writing.

The Borrower shall reimburse the Bank for any reasonable costs and attorneys’ fees incurred by the Bank in connection with the enforcement or preservation of any rights or remedies under this Agreement and any other documents executed in connection with this Agreement, and in connection with any amendment, waiver, “workout” or restructuring under this Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing party is entitled to recover costs and reasonable attorneys’ fees incurred in connection with the lawsuit or arbitration proceeding, as determined by the court or arbitrator. In the event that any case is commenced by or against the Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar or successor statute, the Bank is entitled to recover costs and reasonable attorneys’ fees incurred by the Bank related to the preservation, protection, or enforcement of any rights of the Bank in such a case. As used in this paragraph, “attorneys’ fees” includes the allocated costs of the Bank’s in-house counsel.

This Agreement and any related security or other agreements required by this Agreement, collectively:

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In the event of any conflict between this Agreement and any other agreements required by this Agreement, this Agreement shall prevail. Any reference in any related document to a “promissory note” or a “note” executed by the Borrower and dated as of the date of this Agreement shall be deemed to refer to the Note, as now in effect or as hereafter amended, renewed, or restated.

The Borrower shall indemnify and hold the Bank harmless from any loss, liability, damages, judgments, and costs of any kind relating to or arising directly or indirectly out of (a) this Agreement or any document required hereunder, (b) any credit extended or committed by the Bank to the Borrower hereunder, and (c) any litigation or proceeding related to or arising out of this Agreement, any such document, or any such credit. This indemnity includes but is not limited to attorneys’ fees (including the allocated cost of in-house counsel). This indemnity extends to the Bank, its parent, subsidiaries and all of their directors, officers, employees, agents, successors, attorneys, and assigns. This indemnity shall survive repayment of the Borrower’s Obligations to the Bank. All sums due to the Bank hereunder shall be Obligations of the Borrower, due and payable immediately without demand.

Unless otherwise provided in this Agreement or in another agreement between the Bank and the Borrower, all notices required under this Agreement shall be personally delivered or sent by first class mail, postage prepaid, or by overnight courier, to the addresses on the signature page of this Agreement, or sent by facsimile to the fax numbers listed on the signature page, or to such other addresses as the Bank and the Borrower may specify from time to time in writing. Notices and other communications shall be effective (a) if mailed, upon the earlier of receipt or five (5) days after deposit in the U.S. mail, first class, postage prepaid, (b) if telecopied, when transmitted, or (c) if hand-delivered, by courier or otherwise (including telegram, lettergram or mailgram), when delivered.

Article and paragraph headings are for reference only and shall not affect the interpretation or meaning of any provisions of this Agreement.

This Agreement may be executed in as many counterparts as necessary or convenient, and by the different parties on separate counterparts each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same agreement.

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Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account or obtains an advance. The Bank shall ask for the Borrower’s legal name, address, tax ID number or social security number and other identifying information. The Bank may also ask for additional information or documentation or take other actions reasonably necessary to verify the identity of the Borrower, guarantors or other related persons.

[The remainder of this page is intentionally left blank]

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This Agreement is executed as of the date stated at the top of the first page.

SIGNATURE PAGE TO TERM LOAN AGREEMENT

SCHEDULE 1

PERMITTED ACQUISITIONS

The acquisition by the Borrower or an affiliate thereof of substantially all of the assets of Clean Currents Solar of the Mid-Atlantic, LLC (“Clean Currents Solar”), headquartered at 155 Gibbs Street, Suite 425, Rockville, MD 20850 and with warehouse and sales offices at 2319 Stewart Drive, Suite B, Silver Spring, MD 20910 substantially on the terms and conditions outlined in that certain Summary of Proposed Terms and Conditions for an Asset Purchase Agreement dated December 10, 2010 between the Borrower and Clean Currents Solar or on such other terms and conditions as otherwise duly authorized by the board of directors of the Borrower.

SCHEDULE 1

SCHEDULE 2

PERMITTED INDEBTEDNESS

SCHEDULE 2

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘S-1’ Filing		Date		Other Filings
Filed on:		10/5/12		CORRESP
		3/31/11
		1/24/11
		12/22/10
		12/10/10
		6/30/10
		1/1/10
				List all Filings

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7 Subsequent Filings that Reference this Filing

As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 1/29/24 Tesla, Inc. 10-K 12/31/23 116:14M Workiva Inc Wde… FA01/FA 1/31/23 Tesla, Inc. 10-K 12/31/22 125:30M Donnelley … Solutions/FA 5/02/22 Tesla, Inc. 10-K/A 12/31/21 12:2.6M ActiveDisclosure/FA 2/07/22 Tesla, Inc. 10-K 12/31/21 131:28M Donnelley … Solutions/FA 4/30/21 Tesla, Inc. 10-K/A 12/31/20 12:2.3M ActiveDisclosure/FA 2/08/21 Tesla, Inc. 10-K 12/31/20 149:31M ActiveDisclosure/FA 11/30/12 SEC UPLOAD¶ 10/04/17 1:163K Solarcity Corp.

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Filing Submission 0001193125-12-416770   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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