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): October 8, 2014

 

 

SolarCity Corporation

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-35758   02-0781046

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File No.)

 

(IRS Employer

Identification No.)

3055 Clearview Way

San Mateo, California 94402

(Address of principal executive offices, including zip code)

(650) 638-1028

(Registrant’s telephone number, including area code)

Not Applicable

(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:

 

¨ 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 a Material Definitive Agreement.

Solar Bonds Program

On October 15, 2014, SolarCity Corporation (the “Company”) commenced its program (the “Solar Bond Program”) for the issuance from time to time of the Company’s Solar Bonds (“Solar Bonds”), in one or more series (each, a “Series”). The Solar Bonds will be offered under the Company’s Registration Statement on Form S-3 (Registration No. 333-199321), and the related prospectus supplement for the applicable Series. The Company has initially authorized the sale of up to $200 million in aggregate principal amount of Solar Bonds.

Concurrently with the commencement of the Solar Bond Program, the Company initiated the offer and sale of the Series stated below (the “Offered Series”). The Solar Bonds will mature on the date and bear interest at the rate set forth in the table below. The Company will initially offer an aggregate principal amount of each Offered Series up to the maximum principal amount as further set forth below. However, the Company may increase the maximum principal amount of any Offered Series from time to time, in its sole discretion.

 

Title of Series of Solar Bonds

   Maturity Date      Interest
Rate
    Initial
Maximum
Principal
Amount
 

2.00% Solar Bonds, Series 2014/1-1

     October 15, 2015         2.00   $ 10 million   

2.50% Solar Bonds, Series 2014/2-2

     October 15, 2016         2.50   $ 10 million   

3.00% Solar Bonds, Series 2014/3-3

     October 15, 2017         3.00   $ 10 million   

4.00% Solar Bonds, Series 2014/4-7

     October 15, 2021         4.00   $ 10 million   

Each Offered Series will be issued pursuant to an indenture, dated as of October 15, 2014 (the “Base Indenture”), by and between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture, dated as of October 15, 2014, by and between the Company and the Trustee, related to such Offered Series (each, a “Supplemental Indenture”).

The Solar Bonds of each Offered Series will be senior unsecured obligations of the Company, rank equal in right of payment with all of the Company’s existing and future liabilities that are not expressly subordinated to such Solar Bonds, effectively rank junior to any of the Company’s secured indebtedness to the extent of the value of the assets securing such indebtedness (including amounts outstanding under the Company’s credit facility), and be structurally subordinated to all indebtedness and other liabilities (including trade payables) of the Company’s subsidiaries.

The occurrence of any of the following events will result in an “Event of Default” with respect to each Offered Series, which may result in the acceleration of the maturity of such Offered Series:

 

    The Company’s failure to make any payment of interest on such Offered Series when due, which failure continues for 30 days;

 

    The Company’s failure to make full payment of principal, or reduced principal or premium, if any, on such Offered Series when due at its stated maturity or optional redemption;

 

    The Company’s default in the performance, or breach, of any other covenant or agreement under the Base Indenture, as supplemented by the Supplemental Indenture applicable to that Offered Series, subject to certain exceptions, and after applicable notice and cure periods set forth therein; and


    Certain events of bankruptcy, insolvency or reorganization of the Company and, in the case of an involuntary insolvency proceeding, such proceeding remaining unstayed for a period of 90 consecutive days.

A default or an Event of Default with respect to any Offered Series will not automatically trigger a default or an Event of Default with respect to any other Offered Series. Upon any Event of Default with respect to an Offered Series, the trustee or holders of at least 25% in aggregate principal amount of that Offered Series then outstanding may declare accrued and unpaid interest, if any, principal (including any redemption discount) and premium, if any, on all the Solar Bonds of that Offered Series to be due and payable immediately. Upon an Event of Default that relates to certain events of bankruptcy, insolvency or reorganization of the Company, all accrued and unpaid interest, if any, principal (including any redemption discount) and premium, if any, on all the Solar Bonds will become due and payable immediately.

The summary of the foregoing transactions is qualified in its entirety by reference to the text of the Base Indenture and each Supplemental Indenture, and the related Forms of Solar Bonds, which are included as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8 and 4.9 hereto and are incorporated herein by reference.

Amendment to Credit Agreement

On October 15, 2014, the Company, Bank of America, N.A., as administrative agent (the “Administrative Agent”), and the lenders from time to time party thereto (the “Lenders”) entered into a fourth amendment (“Amendment No. 4”) to that certain Amended and Restated Credit Agreement, dated November 1, 2013, among the Company, the Administrative Agent and the Lenders, and as previously amended. Amendment No. 4 amends the Company’s secured revolving credit facility to, among other things, permit the Company to incur the indebtedness related to issuance of the Solar Bonds and to permit certain payments by the Company under the terms of the Solar Bonds.

Additional Capped Call Transactions

The information set forth in Item 8.01 of this Current Report on Form 8-K under the heading “Additional Capped Call Transactions” is incorporated by reference into this Item 1.01.

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 8.01 of this Current Report on Form 8-K under the heading “Issuance of Additional Convertible Senior Notes” is incorporated by reference into this Item 2.03.

Item 3.02 Unregistered Sales of Equity Securities.

The information set forth in Item 8.01 of this Current Report on Form 8-K under the headings “Issuance of Additional Convertible Senior Notes” and “Additional Capped Call Transactions” is incorporated by reference into this Item 3.02.


Item 8.01. Other Events.

Solar Bonds Program

In connection with the sale of Solar Bonds to certain financial intermediaries (including Series other than the Offered Series), the Company may enter into financial intermediary agreements (each, a “Financial Intermediary Agreement”) with such financial intermediaries from time to time, which sets forth certain terms and conditions applicable to any such financial intermediary sale. A form of the Financial Intermediary Agreement is attached hereto as Exhibit 1.1 and incorporated herein by reference.

Issuance of Additional Convertible Senior Notes

On October 10, 2014, the Company issued an additional $66.0 million in aggregate principal amount of 1.625% Convertible Senior Notes due 2019 (the “Option Notes”), pursuant to the exercise of an option to acquire such notes set forth in that certain Purchase Agreement, dated September 24, 2014, by and among the Company, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Credit Suisse Securities (USA) LLC, as representative of the several initial purchasers (the “Initial Purchasers”).

Additional Capped Call Transactions

In connection with the exercise by the Initial Purchasers of their option to purchase the Option Notes, on October 8, 2014 the Company entered into additional capped call transactions with Deutsche Bank AG, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Goldman, Sachs & Co. (the “Capped Calls”) pursuant to capped call confirmations in substantially the form of Exhibit 10.2 previously filed on the Company’s Current Report on Form 8-K filed on September 25, 2014, which is incorporated herein by reference. The Capped Calls have initial strike prices of $83.5282 per share and initial cap prices of $126.0800 per share, subject to certain adjustments. The Capped Calls cover, subject to customary adjustments, approximately 783,200 shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”). Unless the Company elects to settle the Capped Calls in cash, the Capped Calls are expected to offset the potential dilution to the Company’s common stock following conversion of the Option Notes. If, however, the market value per share of the Common Stock, as measured under the terms of the Capped Calls, exceeds the applicable cap price of the Capped Calls, the number of shares of Common Stock or the amount of cash the Company receives upon the exercise of the Capped Calls (or portions thereof) will be capped at a number of shares with an aggregate market value (or an amount of cash) approximately equal to (x) the excess of the cap price of the capped call transactions over the strike price of the capped call transactions times (y) the number of shares of Common Stock relating to the capped call transactions (or the portions thereof) being exercised, and the dilution mitigation under the capped call transactions will be limited to such number of shares. Additionally, to the extent that the market value per share of Common Stock exceeds the conversion price of the Option Notes but does not exceed the strike price of the Capped Calls, the Company will not be entitled to receive any shares of Common Stock or cash under the Capped Calls. The Company paid approximately $7.6 million from the net proceeds from the issuance and sale of the Option Notes to purchase the Capped Calls. The expiration dates of the Capped Calls range from September 4, 2019 to October 29, 2019. The Capped Calls are subject to either adjustment or termination upon the occurrence of specified extraordinary events affecting the Company, including certain merger events; certain tender offers; and a nationalization, insolvency or delisting involving the Company. In addition, the Capped Calls are subject to certain specified additional disruption events that may give rise to a termination of the Capped Calls, including changes in law and insolvency filings.


Item 9.01 Financial Statements and Exhibits.

 

  (d)   Exhibits.
  1.1   Form of Financial Intermediary Agreement.
  4.1   Indenture, dated as of October 15, 2014, by and between the Company and the Trustee (incorporated herein by reference to Exhibit 4.1 to the Company’s Form S-3, filed with the Securities and Exchange Commission on October 15, 2014).
  4.2   First Supplemental Indenture, dated as of October 15, 2014, by and between the Company and the Trustee, related to the Company’s 2.00% Solar Bonds, Series 2014/1-1.
  4.3   Second Supplemental Indenture, dated as of October 15, 2014, by and between the Company and the Trustee, related to the Company’s 2.50% Solar Bonds, Series 2014/2-2.
  4.4   Third Supplemental Indenture, dated as of October 15, 2014, by and between the Company and the Trustee, related to the Company’s 3.00% Solar Bonds, Series 2014/3-3.
  4.5   Fourth Supplemental Indenture, dated as of October 15, 2014, by and between the Company and the Trustee, related to the Company’s 4.00% Solar Bonds, Series 2014/4-7.
  4.6   Form of 2.00% Solar Bonds, Series 2014/1-1 (included in Exhibit 4.2 hereto).
  4.7   Form of 2.50% Solar Bonds, Series 2014/2-2 (included in Exhibit 4.3 hereto).
  4.8   Form of 3.00% Solar Bonds, Series 2014/3-3 (included in Exhibit 4.4 hereto).
  4.9   Form of 4.00% Solar Bonds, Series 2014/4-7 (included in Exhibit 4.5 hereto).
  5.1   Opinion of K&L Gates LLP, relating to the validity of 2.00% Solar Bonds, Series 2014/1-1.
  5.2   Opinion of K&L Gates LLP, relating to the validity of 2.50% Solar Bonds, Series 2014/2-2.
  5.3   Opinion of K&L Gates LLP, relating to the validity of 3.00% Solar Bonds, Series 2014/3-3.
  5.4   Opinion of K&L Gates LLP, relating to the validity of 4.00% Solar Bonds, Series 2014/4-7.
23.1   Consents of K&L Gates LLP (included in Exhibits 5.1, 5.2, 5.3 and 5.4).


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.

 

SolarCity Corporation

By:  

/s/ Brad W. Buss

  Name: Brad W. Buss
  Title: Chief Financial Officer

Date: October 15, 2014

Exhibit 1.1

F INANCIAL I NTERMEDIARY A GREEMENT

THIS FINANCIAL INTERMEDIARY AGREEMENT (this “ Agreement ”), dated as of             , by and between SolarCity Corporation (“ SolarCity ”), and                     (“the Financial Intermediary ”), governs the purchase and/or distribution of the Solar Bonds, as defined below, by the Financial Intermediary until the termination of this Agreement pursuant to Section 2 hereof.

R E C I T A L S :

SolarCity is issuing bonds called “ Solar Bonds ” pursuant to a prospectus and, with respect to each series, a series-specific prospectus supplement. These documents are or will be filed with the Securities and Exchange Commission (“ SEC ”) and are or will be available on SolarCity’s Solar Bonds website (solarbonds.solarcity.com) (the “ Website ”) as well as on the SEC’s website (www.sec.gov).

SolarCity is selling the Solar Bonds through the Website directly to investors and indirectly to investors through certain entities that will purchase Solar Bonds as principal or as agent with a view to distributing the Solar Bonds to their clients.

The Financial Intermediary would like to access the Website and purchase Solar Bonds through the Website as principal or as agent with a view to distributing the Solar Bonds to its clients.

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Access to and Purchase of Solar Bonds through the Website . The Financial Intermediary’s ability to access the Website for the purpose of purchasing Solar Bonds either as principal or as agent and its ability to purchase the Solar Bonds is conditioned on the following provisions.

(a) The Financial Intermediary is registered as a broker-dealer and/or an investment adviser with the SEC and the appropriate states or is not required to be register as a broker-dealer and/or investment adviser because it does not fall within the relevant classification or is excluded or exempt from registration. The Financial Intermediary holds the licenses necessary to purchase and sell the Solar Bonds.

(b) Neither the Financial Intermediary nor any of its officers, directors, employees, agents or affiliates is subject to a statutory disqualification pursuant to any provision of Section 203(e) or Section 203(f) of the Investment Advisers Act of 1940 or Section 3(a)(39) of the Securities Exchange Act of 1934.

(c) The Financial Intermediary accepts all responsibilities with respect to its clients and their ability to invest in Solar Bonds, including “know your customer” requirements, suitability requirements, anti-money laundering requirements, and requirements under the U.S. Treasury Department’s Office of Foreign Assets Control (“ OFAC ”). The Financial Intermediary acknowledges and agrees that SolarCity is not responsible for these requirements.


(d) The Financial Intermediary acknowledges and understands that SolarCity will only provide electronic versions of the Solar Bond prospectus to the Financial Intermediary. SolarCity authorizes the Financial Intermediary to distribute the electronic version of the prospectus to the Financial Intermediary’s clients.

(e) The Financial Intermediary accepts all responsibilities under the federal securities laws with respect to the delivery of the Solar Bond prospectus to its clients.

(f) The Financial Intermediary acknowledges that it is not authorized to communicate anything to its clients or any other persons about the Solar Bonds other than the information contained in the Form S-3 registration statement and relevant prospectus supplement(s).

(g) The Financial Intermediary agrees that it will not take any actions with respect to the Solar Bonds that would cause the distribution of the Solar Bonds to be illegal and in connection with its purchase and/or sale of the Solar Bonds will comply with all applicable federal, state, local and foreign laws.

(h) The Financial Intermediary accepts all responsibilities under the U.S. Internal Revenue Code of 1986, as amended (“ Code ”) and regulations and guidance thereunder with respect to its clients for tax reporting and withholding in connection with the Solar Bonds.

(i) The Financial Intermediary will ensure that no more than 25% of all assets used to purchase Solar Bonds on its own behalf or on behalf of its clients will be attributable to a “benefit plan investors.” The term “ benefit plan investor ” is defined by the U.S. Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), to include (i) any employee benefit plan that is subject to the fiduciary responsibility standards and prohibited transaction restrictions of part 4 of Title I of ERISA, (ii) any plan to which Section 4975 of the Code applies, and (iii) a private investment fund or other entity whose assets are treated as “plan assets” for purposes of ERISA and Section 4975 of the Code. In addition, assets of the general account of an insurance company may, in certain circumstances, be treated as “plan assets” for purposes of ERISA and Section 4975 of the Code.

(j) The Financial Intermediary represents that it is not, and is not acting directly or indirectly, on behalf of persons on the list of specially designated nationals and blocked persons and persons, foreign countries and territories that are subject of U.S. sanctions administered by the U.S. Treasury Department’s OFAC.

(k) The Financial Intermediary will be responsible for all sub-accounting with respect to its clients and will not provide any information to SolarCity, and SolarCity will not accept any information from the Financial Intermediary, regarding the identity or other information about the Financial Intermediary’s clients.

(l) After allocating Solar Bonds to the Financial Intermediary’s clients, the Financial Intermediary may reallocate or resell the Solar Bonds among its clients without triggering the transfer restrictions set forth on the Solar Bonds and without notifying SolarCity or any transfer

 

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or registrar agents engaged by SolarCity to manage Solar Bonds records of such reallocations and resales. If the Financial Intermediary reallocates or resells Solar Bonds to another financial institution or its clients, such reallocations and resales will be subject to the transfer restrictions set forth on the Solar Bonds and must be reported to SolarCity or any transfer or registrar agents engaged by SolarCity to manage Solar Bonds records.

(m) Notwithstanding any other provision of this Agreement, SolarCity shall not have any responsibility or obligation to accept any purchase request from the Financial Intermediary.

(n) The Financial Intermediary agrees to immediately provide SolarCity with notice if, at any time while this Agreement is in effect, any of the provisions in Section 1 cease to be true or is discovered to be untrue, or if an inquiry or investigation is commenced that could lead to any such results, or if it is unable to comply with any of the provisions specified herein.

2. Termination; Amendment .

(a) This Agreement shall become effective on the date hereof and, subject to earlier termination as provided in Section 2(b), shall remain in effect until terminated by either the Adviser or the Financial Intermediary upon 30 days’ notice to the other party.

(b) If (i) the Financial Intermediary fails to comply with any of the provisions of Section 1 of this Agreement, or (ii) any of the provisions set forth in Section 1 of this Agreement become inaccurate as to the Financial Intermediary, then SolarCity may, in its sole discretion, immediately terminate this Agreement.

(c) This Agreement may only be amended by a written instrument executed by SolarCity and the Financial Intermediary or by the Financial Intermediary’s electronic indication of assent to amendments to this Agreement that are communicated by SolarCity to the Financial Intermediary.

3. Indemnification . The Financial Intermediary shall indemnify and hold harmless SolarCity against and from any and all liabilities, damages, costs and expenses (including reasonable attorney’s fees and expenses) (collectively, “ Damages ”) made against or incurred by SolarCity from any third party source resulting from the activities described hereunder or otherwise relating to this Agreement, except to the extent any Damages result from SolarCity’s negligence, bad faith, willful misconduct, breach of this Agreement, or direct violation of any applicable law or regulation.

4. Assignment . This Agreement may not be assigned, including by operation of law, in whole or in part, by either party without prior written consent of the other, and any purported assignment in violation of this provision shall be void.

5. Applicable Law; Dispute Resolution . This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to the choice of law or conflict of law provisions thereof. If SolarCity and the Financial Intermediary are unable to resolve any dispute through good faith negotiations, then either party may, but shall not be obligated to, initiate non-binding mediation of the dispute with the assistance of a neutral arbitrator belonging to and under the rules of the CPR Institute for Dispute Resolution. The party

 

-3-


requesting the mediation shall arrange for mediation services, subject to the approval of the other party, which shall not be unreasonably withheld, conditioned or delayed. Mediation shall take place in San Mateo County, California during reasonable business hours and upon reasonable advance notice. Mediation may be scheduled to begin at any time, but with at least 15 calendar days’ written notice to all parties. If one party initiates mediation, the parties (a) shall participate in the mediation in good faith and shall devote reasonable time and energy to the mediation so as to promptly resolve the dispute or conclude that they cannot resolve the dispute; and (b) shall not pursue other remedies while such mediation is proceeding. If the parties reach an agreement, a memorandum setting forth such agreement shall be prepared and signed by the parties. If no such agreement can be reached after good faith negotiation (and, if applicable, mediation) prior to 120 days following the date the dispute was first memorialized in writing, either party may bring suit in any state or federal court located in San Mateo County, California to resolve the matter. Each party hereto irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and to the appellate courts therefrom solely for the purposes of disputes arising under this Agreement and not as a general submission to such jurisdiction or with respect to any other dispute, matter or claim whatsoever. The parties hereto irrevocably consent to the service of process out of any of the aforementioned courts in any such action or proceeding by the delivery of copies thereof by overnight courier to the address for such party to which notices are deliverable hereunder. Any such service of process shall be effective upon delivery. The decision of the trial court shall be nonappealable, binding and conclusive upon the parties. Judgment upon any award rendered by the trial court may be entered in any court having jurisdiction.

6. Severability . Any provision of this Agreement that 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 or affecting the validity or enforceability of such provision in any other jurisdiction.

7. Entire Agreement . This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements with respect to the same subject matter, whether oral or written.

8. Notices . Any notice required or permitted to be given under this Agreement shall be in writing, including by e-mail and through the Website, and shall be deemed duly given immediately after being sent by e-mail or personally delivered to the party to whom it is directed, or three days after being deposited in the United States mail, registered or certified, postage prepaid and addressed to the address set forth below or to any other address a party states in writing shall be used for notices:

(a) if to SolarCity at:

SolarCity Corporation

3055 Clearview Way

San Mateo, CA 94402

Attn: Solar Bonds by SolarCity

Email: solarbonds@solarcity.com

(b) if to the Financial Intermediary to the address, including e-mail address, provided by the Financial Intermediary through the Website.

 

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9. Headings . The headings, titles and subtitles herein are inserted for convenience of reference only and are to be ignored in any construction of the provisions hereof.

10. Assent and Enforceability. This Agreement will be binding on the Financial Intermediary immediately upon its providing to SolarCity an indication of the Financial Intermediary’s assent to this Agreement, which assent may be provided electronically, including, but not limited to, by email. Such assent will bind the Financial Intermediary to the terms of this Agreement and will be as effective and enforceable as if the Financial Intermediary had executed and delivered to SolarCity a written copy of this Agreement. After providing its indication of assent to this Agreement, the Financial Intermediary agrees that it will not make any claim that this Agreement is unenforceable against the Financial Intermediary based on the fact that the Financial Intermediary did not execute and deliver to SolarCity a written copy of this Agreement or based on the fact that SolarCity did not execute and deliver to the Financial Intermediary a written copy of this Agreement.

[* * *]

 

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Exhibit 4.2

 

 

SOLARCITY CORPORATION, as Issuer,

-and-

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

FIRST SUPPLEMENTAL INDENTURE

Dated as of October 15, 2014

to

INDENTURE

Dated as of October 15, 2014

 

 

2.00% Solar Bonds, Series 2014/1-1

 

 

 


TABLE OF CONTENTS

 

         PAGE  
ARTICLE 1   
DEFINITIONS   

SECTION 1.01

  Scope of Supplemental Indenture      2   

SECTION 1.02

  Definitions      2   
ARTICLE 2   
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES   

SECTION 2.01

  Title and Terms      3   

SECTION 2.02

  Company Global Securities      3   

SECTION 2.03

  Payments      4   
ARTICLE 3   
MISCELLANEOUS PROVISIONS   

SECTION 3.01

  Trustee Acceptance      4   

SECTION 3.02

  Governing Law      5   

SECTION 3.03

  Trust Indenture Act      5   

SECTION 3.04

  Execution in Counterparts      5   

SECTION 3.05

  Severability      5   

SECTION 3.06

  Appointment of Paying Agent and Security Registrar      5   

SECTION 3.07

  Ratification of Original Indenture      5   
EXHIBIT   

Exhibit A     Form of Note

     A-1   

 

i


FIRST SUPPLEMENTAL INDENTURE, dated as of October 15, 2014 (the “Supplemental Indenture”), between SolarCity Corporation, a Delaware corporation (hereinafter called the “Company”), having its principal executive office located at 3055 Clearview Way, San Mateo, California, 94402, and U.S. Bank National Association, a national banking association duly organized and existing under the laws of the United States of America, as trustee (in such capacity, the “Trustee”), to the indenture, dated as of October 15, 2014, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “Original Indenture”).

RECITALS OF THE COMPANY

WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s Securities, unlimited as to principal amount, in one or more series to be established by the Company under, and authenticated and delivered as provided in, the Original Indenture;

WHEREAS, Section 801(8) of the Original Indenture provides for the Company and the Trustee to enter into a supplemental indenture to the Original Indenture to provide for the issuance of and establish the forms and terms and conditions of Securities as permitted by Sections 201 and 301 of the Original Indenture;

WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;

WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to establish a new series of its Securities to be known as its 2.00% Solar Bonds, Series 2014/1-1 (the “Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture;

WHEREAS, the Form of Note contemplated under the terms of the Notes is to be substantially in the form hereinafter provided; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, in each case, have been performed, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects.

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Notes by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Notes, as follows:


ARTICLE 1

DEFINITIONS

SECTION 1.01 Scope of Supplemental Indenture . The changes, modifications and supplements to the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of (and only the rights of the Holders and the obligations of the Company with respect to), the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Original Indenture (or govern the rights of the Holders or the obligations of the Company with respect to any other such Securities) unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede any corresponding or conflicting provisions in the Original Indenture.

SECTION 1.02 Definitions . For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(i) the terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and include the plural as well as the singular;

(ii) all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meanings as in the Original Indenture;

(iii) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, shall have the meanings assigned to them in the Trust Indenture Act;

(iv) all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument; and

(v) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

“Company” has the meaning set forth in the first paragraph of this Supplemental Indenture.

“Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A .

“Indenture” means the Original Indenture, as originally executed and as supplemented from time to time by one or more indentures supplemental thereto, including this Supplemental Indenture, entered into pursuant to the applicable provisions of the Indenture, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern the Original Indenture and this Supplemental Indenture.

 

2


“Initial Notes” has the meaning specified in Section 2.01.

“Interest Payment Date” means February 15 and August 15 of each year, beginning on February 15, 2015.

“Issue Date” means, with respect to Notes owned by any Holder, the date upon which such Notes were originally issued to such Holder (or transferor of such Holder), as set forth on the Security Register.

“Note” or “Notes” has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01.

“Noteholder,” “Holder” or “holder” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular Note is registered in the Security Register.

“Original Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture.

“Regular Record Date” for the interest payable on any Interest Payment Date means the fifteenth day prior to such Interest Payment Date (whether or not a Business Day).

“Stated Maturity” means, with respect to the payment of principal on the Notes, October 15, 2015.

“Supplemental Indenture” has the meaning specified in the first paragraph hereof.

ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

SECTION 2.01 Title and Terms . There is hereby established a series of Securities designated the “2.00% Solar Bonds, Series 2014/1-1”. The aggregate principal amount of the Notes shall not be limited and shall be initially authenticated and delivered from time to time upon delivery to the Trustee of the documents required by Section 303 of the Indenture. The Notes shall be issued only in fully registered form, in denominations of $1,000 and any integral multiples thereof.

SECTION 2.02 Company Global Securities . The Notes initially shall be represented by one or more permanent Company Global Securities. The Form of Note shall be substantially as set forth in Exhibit A , which is incorporated into and shall be deemed a part of this Supplemental Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the Officers of the Company executing such Notes, as evidenced by their execution of the Notes.

 

3


SECTION 2.03 Payments .

The principal amount of Notes then Outstanding shall be payable at the Stated Maturity. Interest on the Notes shall accrue at a rate of 2.00% per annum, from and including the Issue Date with respect to such Notes, or from the most recent date on which interest has been paid or duly provided for with respect to such Notes, to, but excluding, the next Interest Payment Date, until the principal thereof is paid or made available for payment. Interest shall be payable in arrears on each Interest Payment Date, beginning on February 15, 2015, to the Persons in whose name a Note is registered on the Security Register at the Close of Business on the Regular Record Date immediately preceding the applicable Interest Payment Date. If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months. Up to $10,000,000 aggregate principal amount of Notes will be authenticated on the date of this Supplemental Indenture (the “Initial Notes”).

The Company may, without the consent of the Holders of the Notes, hereafter issue additional Notes (“Additional Notes”) under the Indenture with the same terms and conditions, except for any difference in the issue price, Issue Date and interest accrued prior to the issue date of the Additional Notes, as the Initial Notes, in an unlimited aggregate principal amount. Any such Additional Notes shall constitute a single series together with the Initial Notes for all purposes hereunder, including, without limitation, for purposes of any waivers, supplements or amendments to the Indenture requiring the approval of Holders of the Notes and any offers to purchase the Notes.

The Company shall pay the principal of and interest on any Note in immediately available funds to the Persons in whose name such Note is registered in the Security Register, at the office or agency designated by the Company for that purpose. All payments on the Notes will be made in US. Dollars or in such other coin or currency of the United States of America as of the time of payment is legal tender for the payment of public and private debts.

ARTICLE 3

MISCELLANEOUS PROVISIONS

SECTION 3.01 Trustee Acceptance . The Trustee has accepted the amendment of the Original Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Original Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and

 

4


responsibilities of the Trustee, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect of any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, or for or with respect to (a) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (b) the proper authorization hereof by the Company by corporate action or otherwise, and (c) the due execution hereof by the Company.

SECTION 3.02 Governing Law . This Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 3.03 Trust Indenture Act . This Supplemental Indenture will be subject to, and governed by, the provisions of the Trust Indenture Act that are required to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.

SECTION 3.04 Execution in Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

SECTION 3.05 Severability . In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 3.06 Appointment of Paying Agent and Security Registrar . The Company is hereby appointed to act as Paying Agent and Security Registrar subject to and in accordance with the terms and conditions set forth herein and in the Original Indenture and shall have all of the rights, benefits and immunities of a Paying Agent and Security Registrar as set forth herein and therein.

SECTION 3.07 Ratification of Original Indenture . The Original Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided. For the avoidance of doubt, each of the Company and each Holder of the Notes, by its acceptance of such Notes, acknowledges and agrees that all of the rights, privileges, protections, immunities and benefits afforded to the Trustee and the Agents under the Original Indenture are deemed to be incorporated herein, and shall be enforceable by the Trustee and the Agents hereunder, as if set forth herein in full.

U.S. Bank, National Association hereby accepts the trusts in this Supplemental Indenture declared and provided, upon the terms and conditions herein above set forth.

[Remainder of the page intentionally left blank]

 

5


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

SOLARCITY CORPORATION

By:  

/s/ Brad Buss

  Name: Brad Buss
  Title: Chief Financial Officer
U.S. BANK, NATIONAL ASSOCIATION, as Trustee
By:  

/s/ K. Wendy Kumar

  Name: K. Wendy Kumar
  Title: Vice President


Exhibit A

Form of Note

 

7


FORM OF NOTE

SOLARCITY CORPORATION

2.00% SOLAR BONDS, SERIES 2014/1-1

No. [    ]

SolarCity Corporation, a Delaware corporation (herein called the “Company,” which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to each of the Holders listed on Schedule A hereto, or their registered assigns, the principal sum set forth next to such Holder’s name on Schedule A (the aggregate of which principal sums shall not exceed $10,000,000), on October 15, 2015 at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually, on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A , on said principal sum at said office or agency, in like coin or currency, at the rate per annum of 2.00%, from and including the most recent Interest Payment Date in respect of which interest has been paid (or commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A if no interest has been paid hereon). If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months.

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or other duly authorized Authenticating Agent under the Indenture.


IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.

Dated: [    ]

 

SOLARCITY CORPORATION
By:  

 

  Name:
  Title:

 

ATTEST:
By  

 

  Name:
  Title:


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes referred to in the within-mentioned Indenture.

U.S. BANK NATIONAL ASSOCIATION

as Trustee

 

By:  

 

  Authorized Signatory


FORM OF REVERSE OF NOTE

SOLARCITY CORPORATION

2.00% SOLAR BONDS, SERIES 2014/1-1

This note is one of a duly authorized issue of notes of the Company, designated as its “2.00% Solar Bonds, Series 2014/1-1” (herein called the “Notes”), issued under and pursuant to an Indenture, dated as of October 15, 2014 (the “Original Indenture”), between the Company and U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), as supplemented with respect to the Notes by the First Supplemental Indenture, dated as of October 15, 2014 (the “Supplemental Indenture,” and together with the Original Indenture, the “Indenture”), between the Company, as issuer, paying agent and security registrar (herein called the “ Paying Agent and Security Registrar”), and the Trustee, as trustee, and as the authenticating agent (herein called the “Authenticating Agent”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, Authenticating Agent, Paying Agent, Security Registrar, the Company and the Holders of the Notes. Capitalized terms used but not otherwise defined in this Note shall have the respective meanings ascribed thereto in the Indenture.

If an Event of Default (other than an Event of Default specified in clauses (4), (5) or (6) of Section 501 of the Indenture) occurs and is continuing with respect to the Notes, then the Trustee, or the Holders of not less than 25% in aggregate principal amount of the Notes may declare the principal of all the Notes, and accrued and unpaid interest, if any, and premium, if any, thereon to be due and payable immediately. If an Event of Default specified in clauses (4), (5) or (6) of Section 501 occurs, then the principal and accrued and unpaid interest, if any, and premium, if any, on all the Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Notes.

Subject to the provisions of the Indenture, the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default, subject to exceptions set forth in the Indenture. Upon any such waiver, said default shall for all purposes of this Note and the Indenture be deemed to have been cured and not to be continuing, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding, to execute supplemental indentures to modify provisions of the Indenture, subject to exceptions permitting the modification of the Indenture without the consent of any Holder of Notes or requiring the consent of each Holder of a Note affected by such modification all as set forth in the Indenture.

The Notes are issuable in fully registered form, without coupons, in denominations of $1,000 principal amount and any integral multiples thereof. The Notes may be exchanged for a like aggregate principal amount of Notes of any other authorized denominations, on the terms and subject to the conditions and limitations set forth in the Indenture.


The Company, the Trustee, Authenticating Agent, Paying Agent and Security Registrar may deem the Persons in whose name this Note shall be registered upon the Security Register to be, and may treat them as, the absolute owners of this Note with respect to the principal sum set forth opposite such Person’s name on Schedule A hereto (whether or not amounts under this Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Security Registrar), for the purpose of receiving payment of or on account of the principal of, and interest on this Note and for all other purposes; and neither the Company or the Trustee nor any Authenticating Agent, Paying Agent or any Security Registrar shall be affected by any notice to the contrary. All such payments so made to any Holders for the time being, or upon their orders, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon this Note.

No recourse for the payment of the principal of or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented hereby, shall be had against any incorporator, stockholder, partner, member, manager, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or any of the Company’s subsidiaries or of any successor thereto, either directly or through the Company or any of the Company’s subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of the Indenture and the issue of this Note.

In the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. The Indenture and this Note shall be governed by, and construed in accordance with, the laws of the State of New York.


Schedule A

SOLARCITY CORPORATION

2.00% SOLAR BONDS, SERIES 2014/1-1

 

Name of Holder

   Principal Amount    Issue Date
     

Aggregate Principal Amount Outstanding:

Exhibit 4.3

 

 

SOLARCITY CORPORATION, as Issuer,

-and-

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

SECOND SUPPLEMENTAL INDENTURE

Dated as of October 15, 2014

to

INDENTURE

Dated as of October 15, 2014

 

 

2.50% Solar Bonds, Series 2014/2-2

 

 

 


TABLE OF CONTENTS

 

         PAGE  
ARTICLE 1   
DEFINITIONS   

SECTION 1.01

  Scope of Supplemental Indenture      2   

SECTION 1.02

  Definitions      2   
ARTICLE 2   
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES   

SECTION 2.01

  Title and Terms      3   

SECTION 2.02

  Company Global Securities      3   

SECTION 2.03

  Payments      4   
ARTICLE 3   
MISCELLANEOUS PROVISIONS   

SECTION 3.01

  Trustee Acceptance      4   

SECTION 3.02

  Governing Law      5   

SECTION 3.03

  Trust Indenture Act      5   

SECTION 3.04

  Execution in Counterparts      5   

SECTION 3.05

  Severability      5   

SECTION 3.06

  Appointment of Paying Agent and Security Registrar      5   

SECTION 3.07

  Ratification of Original Indenture      5   
EXHIBIT   

Exhibit A     Form of Note

     A-1   

 

i


SECOND SUPPLEMENTAL INDENTURE, dated as of October 15, 2014 (the “Supplemental Indenture”), between SolarCity Corporation, a Delaware corporation (hereinafter called the “Company”), having its principal executive office located at 3055 Clearview Way, San Mateo, California, 94402, and U.S. Bank National Association, a national banking association duly organized and existing under the laws of the United States of America, as trustee (in such capacity, the “Trustee”), to the indenture, dated as of October 15, 2014, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “Original Indenture”).

RECITALS OF THE COMPANY

WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s Securities, unlimited as to principal amount, in one or more series to be established by the Company under, and authenticated and delivered as provided in, the Original Indenture;

WHEREAS, Section 801(8) of the Original Indenture provides for the Company and the Trustee to enter into a supplemental indenture to the Original Indenture to provide for the issuance of and establish the forms and terms and conditions of Securities as permitted by Sections 201 and 301 of the Original Indenture;

WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;

WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to establish a new series of its Securities to be known as its 2.50% Solar Bonds, Series 2014/2-2 (the “Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture;

WHEREAS, the Form of Note contemplated under the terms of the Notes is to be substantially in the form hereinafter provided; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, in each case, have been performed, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects.

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Notes by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Notes, as follows:


ARTICLE 1

DEFINITIONS

SECTION 1.01 Scope of Supplemental Indenture . The changes, modifications and supplements to the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of (and only the rights of the Holders and the obligations of the Company with respect to), the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Original Indenture (or govern the rights of the Holders or the obligations of the Company with respect to any other such Securities) unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede any corresponding or conflicting provisions in the Original Indenture.

SECTION 1.02 Definitions . For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(i) the terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and include the plural as well as the singular;

(ii) all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meanings as in the Original Indenture;

(iii) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, shall have the meanings assigned to them in the Trust Indenture Act;

(iv) all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument; and

(v) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

“Company” has the meaning set forth in the first paragraph of this Supplemental Indenture.

“Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A .

“Indenture” means the Original Indenture, as originally executed and as supplemented from time to time by one or more indentures supplemental thereto, including this Supplemental Indenture, entered into pursuant to the applicable provisions of the Indenture, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern the Original Indenture and this Supplemental Indenture.

 

2


“Initial Notes” has the meaning specified in Section 2.01.

“Interest Payment Date” means February 15 and August 15 of each year, beginning on February 15, 2015.

“Issue Date” means, with respect to Notes owned by any Holder, the date upon which such Notes were originally issued to such Holder (or transferor of such Holder), as set forth on the Security Register.

“Note” or “Notes” has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01.

“Noteholder,” “Holder” or “holder” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular Note is registered in the Security Register.

“Original Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture.

“Regular Record Date” for the interest payable on any Interest Payment Date means the fifteenth day prior to such Interest Payment Date (whether or not a Business Day).

“Stated Maturity” means, with respect to the payment of principal on the Notes, October 15, 2016.

“Supplemental Indenture” has the meaning specified in the first paragraph hereof.

ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

SECTION 2.01 Title and Terms . There is hereby established a series of Securities designated the “2.50% Solar Bonds, Series 2014/2-2”. The aggregate principal amount of the Notes shall not be limited and shall be initially authenticated and delivered from time to time upon delivery to the Trustee of the documents required by Section 303 of the Indenture. The Notes shall be issued only in fully registered form, in denominations of $1,000 and any integral multiples thereof.

SECTION 2.02 Company Global Securities . The Notes initially shall be represented by one or more permanent Company Global Securities. The Form of Note shall be substantially as set forth in Exhibit A , which is incorporated into and shall be deemed a part of this Supplemental Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the Officers of the Company executing such Notes, as evidenced by their execution of the Notes.

 

3


SECTION 2.03 Payments .

The principal amount of Notes then Outstanding shall be payable at the Stated Maturity. Interest on the Notes shall accrue at a rate of 2.50% per annum, from and including the Issue Date with respect to such Notes, or from the most recent date on which interest has been paid or duly provided for with respect to such Notes, to, but excluding, the next Interest Payment Date, until the principal thereof is paid or made available for payment. Interest shall be payable in arrears on each Interest Payment Date, beginning on February 15, 2015, to the Persons in whose name a Note is registered on the Security Register at the Close of Business on the Regular Record Date immediately preceding the applicable Interest Payment Date. If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months. Up to $10,000,000 aggregate principal amount of Notes will be authenticated on the date of this Supplemental Indenture (the “Initial Notes”).

The Company may, without the consent of the Holders of the Notes, hereafter issue additional Notes (“Additional Notes”) under the Indenture with the same terms and conditions, except for any difference in the issue price, Issue Date and interest accrued prior to the issue date of the Additional Notes, as the Initial Notes, in an unlimited aggregate principal amount. Any such Additional Notes shall constitute a single series together with the Initial Notes for all purposes hereunder, including, without limitation, for purposes of any waivers, supplements or amendments to the Indenture requiring the approval of Holders of the Notes and any offers to purchase the Notes.

The Company shall pay the principal of and interest on any Note in immediately available funds to the Persons in whose name such Note is registered in the Security Register, at the office or agency designated by the Company for that purpose. All payments on the Notes will be made in US. Dollars or in such other coin or currency of the United States of America as of the time of payment is legal tender for the payment of public and private debts.

ARTICLE 3

MISCELLANEOUS PROVISIONS

SECTION 3.01 Trustee Acceptance . The Trustee has accepted the amendment of the Original Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Original Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and

 

4


responsibilities of the Trustee, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect of any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, or for or with respect to (a) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (b) the proper authorization hereof by the Company by corporate action or otherwise, and (c) the due execution hereof by the Company.

SECTION 3.02 Governing Law . This Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 3.03 Trust Indenture Act . This Supplemental Indenture will be subject to, and governed by, the provisions of the Trust Indenture Act that are required to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.

SECTION 3.04 Execution in Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

SECTION 3.05 Severability . In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 3.06 Appointment of Paying Agent and Security Registrar . The Company is hereby appointed to act as Paying Agent and Security Registrar subject to and in accordance with the terms and conditions set forth herein and in the Original Indenture and shall have all of the rights, benefits and immunities of a Paying Agent and Security Registrar as set forth herein and therein.

SECTION 3.07 Ratification of Original Indenture . The Original Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided. For the avoidance of doubt, each of the Company and each Holder of the Notes, by its acceptance of such Notes, acknowledges and agrees that all of the rights, privileges, protections, immunities and benefits afforded to the Trustee and the Agents under the Original Indenture are deemed to be incorporated herein, and shall be enforceable by the Trustee and the Agents hereunder, as if set forth herein in full.

U.S. Bank, National Association hereby accepts the trusts in this Supplemental Indenture declared and provided, upon the terms and conditions herein above set forth.

[Remainder of the page intentionally left blank]

 

5


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

SOLARCITY CORPORATION
By:  

/s/ Brad Buss

  Name: Brad Buss
  Title: Chief Financial Officer
U.S. BANK, NATIONAL ASSOCIATION, as Trustee
By:  

/s/ K. Wendy Kumar

  Name: K. Wendy Kumar
  Title: Vice President


Exhibit A

Form of Note

 

7


FORM OF NOTE

SOLARCITY CORPORATION

2.50% SOLAR BONDS, SERIES 2014/2-2

No. [    ]

SolarCity Corporation, a Delaware corporation (herein called the “Company,” which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to each of the Holders listed on Schedule A hereto, or their registered assigns, the principal sum set forth next to such Holder’s name on Schedule A (the aggregate of which principal sums shall not exceed $10,000,000), on October 15, 2016 at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually, on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A , on said principal sum at said office or agency, in like coin or currency, at the rate per annum of 2.50%, from and including the most recent Interest Payment Date in respect of which interest has been paid (or commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A if no interest has been paid hereon). If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months.

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or other duly authorized Authenticating Agent under the Indenture.


IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.

Dated: [    ]

 

SOLARCITY CORPORATION
By:  

 

  Name:
  Title:

 

ATTEST:
By  

 

  Name:
  Title:


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes referred to in the within-mentioned Indenture.

U.S. BANK NATIONAL ASSOCIATION

as Trustee

 

By:  

 

  Authorized Signatory


FORM OF REVERSE OF NOTE

SOLARCITY CORPORATION

2.50% SOLAR BONDS, SERIES 2014/2-2

This note is one of a duly authorized issue of notes of the Company, designated as its “2.50% Solar Bonds, Series 2014/2-2” (herein called the “Notes”), issued under and pursuant to an Indenture, dated as of October 15, 2014 (the “Original Indenture”), between the Company and U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), as supplemented with respect to the Notes by the Second Supplemental Indenture, dated as of October 15, 2014 (the “Supplemental Indenture,” and together with the Original Indenture, the “Indenture”), between the Company, as issuer, paying agent and security registrar (herein called the “ Paying Agent and Security Registrar”), and the Trustee, as trustee, and as the authenticating agent (herein called the “Authenticating Agent”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, Authenticating Agent, Paying Agent, Security Registrar, the Company and the Holders of the Notes. Capitalized terms used but not otherwise defined in this Note shall have the respective meanings ascribed thereto in the Indenture.

If an Event of Default (other than an Event of Default specified in clauses (4), (5) or (6) of Section 501 of the Indenture) occurs and is continuing with respect to the Notes, then the Trustee, or the Holders of not less than 25% in aggregate principal amount of the Notes may declare the principal of all the Notes, and accrued and unpaid interest, if any, and premium, if any, thereon to be due and payable immediately. If an Event of Default specified in clauses (4), (5) or (6) of Section 501 occurs, then the principal and accrued and unpaid interest, if any, and premium, if any, on all the Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Notes.

Subject to the provisions of the Indenture, the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default, subject to exceptions set forth in the Indenture. Upon any such waiver, said default shall for all purposes of this Note and the Indenture be deemed to have been cured and not to be continuing, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding, to execute supplemental indentures to modify provisions of the Indenture, subject to exceptions permitting the modification of the Indenture without the consent of any Holder of Notes or requiring the consent of each Holder of a Note affected by such modification all as set forth in the Indenture.

The Notes are issuable in fully registered form, without coupons, in denominations of $1,000 principal amount and any integral multiples thereof. The Notes may be exchanged for a like aggregate principal amount of Notes of any other authorized denominations, on the terms and subject to the conditions and limitations set forth in the Indenture.


The Company, the Trustee, Authenticating Agent, Paying Agent and Security Registrar may deem the Persons in whose name this Note shall be registered upon the Security Register to be, and may treat them as, the absolute owners of this Note with respect to the principal sum set forth opposite such Person’s name on Schedule A hereto (whether or not amounts under this Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Security Registrar), for the purpose of receiving payment of or on account of the principal of, and interest on this Note and for all other purposes; and neither the Company or the Trustee nor any Authenticating Agent, Paying Agent or any Security Registrar shall be affected by any notice to the contrary. All such payments so made to any Holders for the time being, or upon their orders, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon this Note.

No recourse for the payment of the principal of or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented hereby, shall be had against any incorporator, stockholder, partner, member, manager, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or any of the Company’s subsidiaries or of any successor thereto, either directly or through the Company or any of the Company’s subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of the Indenture and the issue of this Note.

In the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. The Indenture and this Note shall be governed by, and construed in accordance with, the laws of the State of New York.


Schedule A

SOLARCITY CORPORATION

2.50% SOLAR BONDS, SERIES 2014/2-2

 

Name of Holder

   Principal Amount    Issue Date
     

Aggregate Principal Amount Outstanding:

Exhibit 4.4

 

 

SOLARCITY CORPORATION, as Issuer,

-and-

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

THIRD SUPPLEMENTAL INDENTURE

Dated as of October 15, 2014

to

INDENTURE

Dated as of October 15, 2014

 

 

3.00% Solar Bonds, Series 2014/3-3

 

 

 


TABLE OF CONTENTS

 

         PAGE  
ARTICLE 1   
DEFINITIONS   

SECTION 1.01

  Scope of Supplemental Indenture      2   

SECTION 1.02

  Definitions      2   
ARTICLE 2   
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES   

SECTION 2.01

  Title and Terms      3   

SECTION 2.02

  Company Global Securities      3   

SECTION 2.03

  Payments      4   
ARTICLE 3   
MISCELLANEOUS PROVISIONS   

SECTION 3.01

  Trustee Acceptance      4   

SECTION 3.02

  Governing Law      5   

SECTION 3.03

  Trust Indenture Act      5   

SECTION 3.04

  Execution in Counterparts      5   

SECTION 3.05

  Severability      5   

SECTION 3.06

  Appointment of Paying Agent and Security Registrar      5   

SECTION 3.07

  Ratification of Original Indenture      5   
EXHIBIT   

Exhibit A     Form of Note

     A-1   

 

i


THIRD SUPPLEMENTAL INDENTURE, dated as of October 15, 2014 (the “Supplemental Indenture”), between SolarCity Corporation, a Delaware corporation (hereinafter called the “Company”), having its principal executive office located at 3055 Clearview Way, San Mateo, California, 94402, and U.S. Bank National Association, a national banking association duly organized and existing under the laws of the United States of America, as trustee (in such capacity, the “Trustee”), to the indenture, dated as of October 15, 2014, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “Original Indenture”).

RECITALS OF THE COMPANY

WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s Securities, unlimited as to principal amount, in one or more series to be established by the Company under, and authenticated and delivered as provided in, the Original Indenture;

WHEREAS, Section 801(8) of the Original Indenture provides for the Company and the Trustee to enter into a supplemental indenture to the Original Indenture to provide for the issuance of and establish the forms and terms and conditions of Securities as permitted by Sections 201 and 301 of the Original Indenture;

WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;

WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to establish a new series of its Securities to be known as its 3.00% Solar Bonds, Series 2014/3-3 (the “Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture;

WHEREAS, the Form of Note contemplated under the terms of the Notes is to be substantially in the form hereinafter provided; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, in each case, have been performed, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects.

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Notes by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Notes, as follows:


ARTICLE 1

DEFINITIONS

SECTION 1.01 Scope of Supplemental Indenture . The changes, modifications and supplements to the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of (and only the rights of the Holders and the obligations of the Company with respect to), the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Original Indenture (or govern the rights of the Holders or the obligations of the Company with respect to any other such Securities) unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede any corresponding or conflicting provisions in the Original Indenture.

SECTION 1.02 Definitions . For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(i) the terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and include the plural as well as the singular;

(ii) all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meanings as in the Original Indenture;

(iii) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, shall have the meanings assigned to them in the Trust Indenture Act;

(iv) all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument; and

(v) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

“Company” has the meaning set forth in the first paragraph of this Supplemental Indenture.

“Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A .

“Indenture” means the Original Indenture, as originally executed and as supplemented from time to time by one or more indentures supplemental thereto, including this Supplemental Indenture, entered into pursuant to the applicable provisions of the Indenture, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern the Original Indenture and this Supplemental Indenture.

 

2


“Initial Notes” has the meaning specified in Section 2.01.

“Interest Payment Date” means February 15 and August 15 of each year, beginning on February 15, 2015.

“Issue Date” means, with respect to Notes owned by any Holder, the date upon which such Notes were originally issued to such Holder (or transferor of such Holder), as set forth on the Security Register.

“Note” or “Notes” has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01.

“Noteholder,” “Holder” or “holder” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular Note is registered in the Security Register.

“Original Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture.

“Regular Record Date” for the interest payable on any Interest Payment Date means the fifteenth day prior to such Interest Payment Date (whether or not a Business Day).

“Stated Maturity” means, with respect to the payment of principal on the Notes, October 15, 2017.

“Supplemental Indenture” has the meaning specified in the first paragraph hereof.

ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

SECTION 2.01 Title and Terms . There is hereby established a series of Securities designated the “3.00% Solar Bonds, Series 2014/3-3”. The aggregate principal amount of the Notes shall not be limited and shall be initially authenticated and delivered from time to time upon delivery to the Trustee of the documents required by Section 303 of the Indenture. The Notes shall be issued only in fully registered form, in denominations of $1,000 and any integral multiples thereof.

SECTION 2.02 Company Global Securities . The Notes initially shall be represented by one or more permanent Company Global Securities. The Form of Note shall be substantially as set forth in Exhibit A , which is incorporated into and shall be deemed a part of this Supplemental Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the Officers of the Company executing such Notes, as evidenced by their execution of the Notes.

 

3


SECTION 2.03 Payments .

The principal amount of Notes then Outstanding shall be payable at the Stated Maturity. Interest on the Notes shall accrue at a rate of 3.00% per annum, from and including the Issue Date with respect to such Notes, or from the most recent date on which interest has been paid or duly provided for with respect to such Notes, to, but excluding, the next Interest Payment Date, until the principal thereof is paid or made available for payment. Interest shall be payable in arrears on each Interest Payment Date, beginning on February 15, 2015, to the Persons in whose name a Note is registered on the Security Register at the Close of Business on the Regular Record Date immediately preceding the applicable Interest Payment Date. If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months. Up to $10,000,000 aggregate principal amount of Notes will be authenticated on the date of this Supplemental Indenture (the “Initial Notes”).

The Company may, without the consent of the Holders of the Notes, hereafter issue additional Notes (“Additional Notes”) under the Indenture with the same terms and conditions, except for any difference in the issue price, Issue Date and interest accrued prior to the issue date of the Additional Notes, as the Initial Notes, in an unlimited aggregate principal amount. Any such Additional Notes shall constitute a single series together with the Initial Notes for all purposes hereunder, including, without limitation, for purposes of any waivers, supplements or amendments to the Indenture requiring the approval of Holders of the Notes and any offers to purchase the Notes.

The Company shall pay the principal of and interest on any Note in immediately available funds to the Persons in whose name such Note is registered in the Security Register, at the office or agency designated by the Company for that purpose. All payments on the Notes will be made in US. Dollars or in such other coin or currency of the United States of America as of the time of payment is legal tender for the payment of public and private debts.

ARTICLE 3

MISCELLANEOUS PROVISIONS

SECTION 3.01 Trustee Acceptance . The Trustee has accepted the amendment of the Original Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Original Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and

 

4


responsibilities of the Trustee, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect of any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, or for or with respect to (a) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (b) the proper authorization hereof by the Company by corporate action or otherwise, and (c) the due execution hereof by the Company.

SECTION 3.02 Governing Law . This Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 3.03 Trust Indenture Act . This Supplemental Indenture will be subject to, and governed by, the provisions of the Trust Indenture Act that are required to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.

SECTION 3.04 Execution in Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

SECTION 3.05 Severability . In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 3.06 Appointment of Paying Agent and Security Registrar . The Company is hereby appointed to act as Paying Agent and Security Registrar subject to and in accordance with the terms and conditions set forth herein and in the Original Indenture and shall have all of the rights, benefits and immunities of a Paying Agent and Security Registrar as set forth herein and therein.

SECTION 3.07 Ratification of Original Indenture . The Original Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided. For the avoidance of doubt, each of the Company and each Holder of the Notes, by its acceptance of such Notes, acknowledges and agrees that all of the rights, privileges, protections, immunities and benefits afforded to the Trustee and the Agents under the Original Indenture are deemed to be incorporated herein, and shall be enforceable by the Trustee and the Agents hereunder, as if set forth herein in full.

U.S. Bank, National Association hereby accepts the trusts in this Supplemental Indenture declared and provided, upon the terms and conditions herein above set forth.

[Remainder of the page intentionally left blank]

 

5


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

SOLARCITY CORPORATION
By:  

/s/ Brad Buss

  Name: Brad Buss
  Title: Chief Financial Officer
U.S. BANK, NATIONAL ASSOCIATION, as Trustee
By:  

/s/ K. Wendy Kumar

  Name: K. Wendy Kumar
  Title: Vice President


Exhibit A

Form of Note

 

7


FORM OF NOTE

SOLARCITY CORPORATION

3.00% SOLAR BONDS, SERIES 2014/3-3

No. [    ]

SolarCity Corporation, a Delaware corporation (herein called the “Company,” which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to each of the Holders listed on Schedule A hereto, or their registered assigns, the principal sum set forth next to such Holder’s name on Schedule A (the aggregate of which principal sums shall not exceed $10,000,000), on October 15, 2017 at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually, on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A , on said principal sum at said office or agency, in like coin or currency, at the rate per annum of 3.00%, from and including the most recent Interest Payment Date in respect of which interest has been paid (or commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A if no interest has been paid hereon). If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months.

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or other duly authorized Authenticating Agent under the Indenture.


IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.

Dated: [    ]

 

SOLARCITY CORPORATION
By:  

 

  Name:
  Title:

 

ATTEST:
By  

 

  Name:
  Title:


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes referred to in the within-mentioned Indenture.

U.S. BANK NATIONAL ASSOCIATION

as Trustee

 

By:  

 

  Authorized Signatory


FORM OF REVERSE OF NOTE

SOLARCITY CORPORATION

3.00% SOLAR BONDS, SERIES 2014/3-3

This note is one of a duly authorized issue of notes of the Company, designated as its “3.00% Solar Bonds, Series 2014/3-3” (herein called the “Notes”), issued under and pursuant to an Indenture, dated as of October 15, 2014 (the “Original Indenture”), between the Company and U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), as supplemented with respect to the Notes by the Third Supplemental Indenture, dated as of October 15, 2014 (the “Supplemental Indenture,” and together with the Original Indenture, the “Indenture”), between the Company, as issuer, paying agent and security registrar (herein called the “ Paying Agent and Security Registrar”), and the Trustee, as trustee, and as the authenticating agent (herein called the “Authenticating Agent”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, Authenticating Agent, Paying Agent, Security Registrar, the Company and the Holders of the Notes. Capitalized terms used but not otherwise defined in this Note shall have the respective meanings ascribed thereto in the Indenture.

If an Event of Default (other than an Event of Default specified in clauses (4), (5) or (6) of Section 501 of the Indenture) occurs and is continuing with respect to the Notes, then the Trustee, or the Holders of not less than 25% in aggregate principal amount of the Notes may declare the principal of all the Notes, and accrued and unpaid interest, if any, and premium, if any, thereon to be due and payable immediately. If an Event of Default specified in clauses (4), (5) or (6) of Section 501 occurs, then the principal and accrued and unpaid interest, if any, and premium, if any, on all the Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Notes.

Subject to the provisions of the Indenture, the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default, subject to exceptions set forth in the Indenture. Upon any such waiver, said default shall for all purposes of this Note and the Indenture be deemed to have been cured and not to be continuing, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding, to execute supplemental indentures to modify provisions of the Indenture, subject to exceptions permitting the modification of the Indenture without the consent of any Holder of Notes or requiring the consent of each Holder of a Note affected by such modification all as set forth in the Indenture.

The Notes are issuable in fully registered form, without coupons, in denominations of $1,000 principal amount and any integral multiples thereof. The Notes may be exchanged for a like aggregate principal amount of Notes of any other authorized denominations, on the terms and subject to the conditions and limitations set forth in the Indenture.


The Company, the Trustee, Authenticating Agent, Paying Agent and Security Registrar may deem the Persons in whose name this Note shall be registered upon the Security Register to be, and may treat them as, the absolute owners of this Note with respect to the principal sum set forth opposite such Person’s name on Schedule A hereto (whether or not amounts under this Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Security Registrar), for the purpose of receiving payment of or on account of the principal of, and interest on this Note and for all other purposes; and neither the Company or the Trustee nor any Authenticating Agent, Paying Agent or any Security Registrar shall be affected by any notice to the contrary. All such payments so made to any Holders for the time being, or upon their orders, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon this Note.

No recourse for the payment of the principal of or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented hereby, shall be had against any incorporator, stockholder, partner, member, manager, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or any of the Company’s subsidiaries or of any successor thereto, either directly or through the Company or any of the Company’s subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of the Indenture and the issue of this Note.

In the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. The Indenture and this Note shall be governed by, and construed in accordance with, the laws of the State of New York.


Schedule A

SOLARCITY CORPORATION

3.00% SOLAR BONDS, SERIES 2014/3-3

 

Name of Holder

   Principal Amount    Issue Date
     

Aggregate Principal Amount Outstanding:

Exhibit 4.5

 

 

SOLARCITY CORPORATION, as Issuer,

-and-

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

FOURTH SUPPLEMENTAL INDENTURE

Dated as of October 15, 2014

to

INDENTURE

Dated as of October 15, 2014

 

 

4.00% Solar Bonds, Series 2014/4-7

 

 

 


TABLE OF CONTENTS

 

         PAGE  
ARTICLE 1   
DEFINITIONS   

SECTION 1.01

  Scope of Supplemental Indenture      2   

SECTION 1.02

  Definitions      2   
ARTICLE 2   
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES   

SECTION 2.01

  Title and Terms      3   

SECTION 2.02

  Company Global Securities      3   

SECTION 2.03

  Payments      4   
ARTICLE 3   
MISCELLANEOUS PROVISIONS   

SECTION 3.01

  Trustee Acceptance      4   

SECTION 3.02

  Governing Law      5   

SECTION 3.03

  Trust Indenture Act      5   

SECTION 3.04

  Execution in Counterparts      5   

SECTION 3.05

  Severability      5   

SECTION 3.06

  Appointment of Paying Agent and Security Registrar      5   

SECTION 3.07

  Ratification of Original Indenture      5   
EXHIBIT   

Exhibit A     Form of Note

     A-1   

 

i


FOURTH SUPPLEMENTAL INDENTURE, dated as of October 15, 2014 (the “Supplemental Indenture”), between SolarCity Corporation, a Delaware corporation (hereinafter called the “Company”), having its principal executive office located at 3055 Clearview Way, San Mateo, California, 94402, and U.S. Bank National Association, a national banking association duly organized and existing under the laws of the United States of America, as trustee (in such capacity, the “Trustee”), to the indenture, dated as of October 15, 2014, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the “Original Indenture”).

RECITALS OF THE COMPANY

WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s Securities, unlimited as to principal amount, in one or more series to be established by the Company under, and authenticated and delivered as provided in, the Original Indenture;

WHEREAS, Section 801(8) of the Original Indenture provides for the Company and the Trustee to enter into a supplemental indenture to the Original Indenture to provide for the issuance of and establish the forms and terms and conditions of Securities as permitted by Sections 201 and 301 of the Original Indenture;

WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;

WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to establish a new series of its Securities to be known as its 4.00% Solar Bonds, Series 2014/4-7 (the “Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture;

WHEREAS, the Form of Note contemplated under the terms of the Notes is to be substantially in the form hereinafter provided; and

WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make (i) this Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, in each case, have been performed, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects.

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Notes by the Holders thereof, it is mutually agreed, for the benefit of the Company and the equal and proportionate benefit of all Holders of the Notes, as follows:


ARTICLE 1

DEFINITIONS

SECTION 1.01 Scope of Supplemental Indenture. The changes, modifications and supplements to the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of (and only the rights of the Holders and the obligations of the Company with respect to), the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Original Indenture (or govern the rights of the Holders or the obligations of the Company with respect to any other such Securities) unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede any corresponding or conflicting provisions in the Original Indenture.

SECTION 1.02 Definitions . For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(i) the terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and include the plural as well as the singular;

(ii) all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meanings as in the Original Indenture;

(iii) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, shall have the meanings assigned to them in the Trust Indenture Act;

(iv) all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument; and

(v) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

“Company” has the meaning set forth in the first paragraph of this Supplemental Indenture.

“Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A .

“Indenture” means the Original Indenture, as originally executed and as supplemented from time to time by one or more indentures supplemental thereto, including this Supplemental Indenture, entered into pursuant to the applicable provisions of the Indenture, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern the Original Indenture and this Supplemental Indenture.

 

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“Initial Notes” has the meaning specified in Section 2.01.

“Interest Payment Date” means February 15 and August 15 of each year, beginning on February 15, 2015.

“Issue Date” means, with respect to Notes owned by any Holder, the date upon which such Notes were originally issued to such Holder (or transferor of such Holder), as set forth on the Security Register.

“Note” or “Notes” has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01.

“Noteholder,” “Holder” or “holder” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular Note is registered in the Security Register.

“Original Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture.

“Regular Record Date” for the interest payable on any Interest Payment Date means the fifteenth day prior to such Interest Payment Date (whether or not a Business Day).

“Stated Maturity” means, with respect to the payment of principal on the Notes, October 15, 2021.

“Supplemental Indenture” has the meaning specified in the first paragraph hereof.

ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

SECTION 2.01 Title and Terms . There is hereby established a series of Securities designated the “4.00% Solar Bonds, Series 2014/4-7”. The aggregate principal amount of the Notes shall not be limited and shall be initially authenticated and delivered from time to time upon delivery to the Trustee of the documents required by Section 303 of the Indenture. The Notes shall be issued only in fully registered form, in denominations of $1,000 and any integral multiples thereof.

SECTION 2.02 Company Global Securities . The Notes initially shall be represented by one or more permanent Company Global Securities. The Form of Note shall be substantially as set forth in Exhibit A , which is incorporated into and shall be deemed a part of this Supplemental Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the Officers of the Company executing such Notes, as evidenced by their execution of the Notes.

 

3


SECTION 2.03 Payments .

The principal amount of Notes then Outstanding shall be payable at the Stated Maturity. Interest on the Notes shall accrue at a rate of 4.00% per annum, from and including the Issue Date with respect to such Notes, or from the most recent date on which interest has been paid or duly provided for with respect to such Notes, to, but excluding, the next Interest Payment Date, until the principal thereof is paid or made available for payment. Interest shall be payable in arrears on each Interest Payment Date, beginning on February 15, 2015, to the Persons in whose name a Note is registered on the Security Register at the Close of Business on the Regular Record Date immediately preceding the applicable Interest Payment Date. If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months. Up to $10,000,000 aggregate principal amount of Notes will be authenticated on the date of this Supplemental Indenture (the “Initial Notes”).

The Company may, without the consent of the Holders of the Notes, hereafter issue additional Notes (“Additional Notes”) under the Indenture with the same terms and conditions, except for any difference in the issue price, Issue Date and interest accrued prior to the issue date of the Additional Notes, as the Initial Notes, in an unlimited aggregate principal amount. Any such Additional Notes shall constitute a single series together with the Initial Notes for all purposes hereunder, including, without limitation, for purposes of any waivers, supplements or amendments to the Indenture requiring the approval of Holders of the Notes and any offers to purchase the Notes.

The Company shall pay the principal of and interest on any Note in immediately available funds to the Persons in whose name such Note is registered in the Security Register, at the office or agency designated by the Company for that purpose. All payments on the Notes will be made in US. Dollars or in such other coin or currency of the United States of America as of the time of payment is legal tender for the payment of public and private debts.

ARTICLE 3

MISCELLANEOUS PROVISIONS

SECTION 3.01 Trustee Acceptance . The Trustee has accepted the amendment of the Original Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Original Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and

 

4


responsibilities of the Trustee, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect of any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, or for or with respect to (a) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (b) the proper authorization hereof by the Company by corporate action or otherwise, and (c) the due execution hereof by the Company.

SECTION 3.02 Governing Law . This Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 3.03 Trust Indenture Act . This Supplemental Indenture will be subject to, and governed by, the provisions of the Trust Indenture Act that are required to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.

SECTION 3.04 Execution in Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

SECTION 3.05 Severability . In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 3.06 Appointment of Paying Agent and Security Registrar . The Company is hereby appointed to act as Paying Agent and Security Registrar subject to and in accordance with the terms and conditions set forth herein and in the Original Indenture and shall have all of the rights, benefits and immunities of a Paying Agent and Security Registrar as set forth herein and therein.

SECTION 3.07 Ratification of Original Indenture. The Original Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided. For the avoidance of doubt, each of the Company and each Holder of the Notes, by its acceptance of such Notes, acknowledges and agrees that all of the rights, privileges, protections, immunities and benefits afforded to the Trustee and the Agents under the Original Indenture are deemed to be incorporated herein, and shall be enforceable by the Trustee and the Agents hereunder, as if set forth herein in full.

U.S. Bank, National Association hereby accepts the trusts in this Supplemental Indenture declared and provided, upon the terms and conditions herein above set forth.

[Remainder of the page intentionally left blank]

 

5


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

SOLARCITY CORPORATION
By:  

/s/ Brad Buss

  Name: Brad Buss
  Title: Chief Financial Officer
U.S. BANK, NATIONAL ASSOCIATION, as Trustee
By:  

/s/ K. Wendy Kumar

  Name: K. Wendy Kumar
  Title: Vice President


Exhibit A

Form of Note

 

7


FORM OF NOTE

SOLARCITY CORPORATION

4.00% SOLAR BONDS, SERIES 2014/4-7

No. [    ]

SolarCity Corporation, a Delaware corporation (herein called the “Company,” which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to each of the Holders listed on Schedule A hereto, or their registered assigns, the principal sum set forth next to such Holder’s name on Schedule A (the aggregate of which principal sums shall not exceed $10,000,000), on October 15, 2021 at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually, on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A , on said principal sum at said office or agency, in like coin or currency, at the rate per annum of 4.00%, from and including the most recent Interest Payment Date in respect of which interest has been paid (or commencing on the Issue Date set forth set forth next to such Holder’s name on Schedule A if no interest has been paid hereon). If any Stated Maturity or Maturity of, or any other day on which a payment is due shall be a day which is not a Business Day, then such payment may be made on the next succeeding day that is a Business Day with the same force and effect as if made at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding Business Day. Interest will be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any period shorter than a full quarterly interest period will be computed on the basis of the number of days elapsed in a 90-day quarter of three 30-day months.

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or other duly authorized Authenticating Agent under the Indenture.


IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.

Dated: [    ]

 

SOLARCITY CORPORATION
By:  

 

  Name:
  Title:

 

ATTEST:
By  

 

  Name:
  Title:


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes referred to in the within-mentioned Indenture.

U.S. BANK NATIONAL ASSOCIATION as Trustee

 

By:  

 

  Authorized Signatory


FORM OF REVERSE OF NOTE

SOLARCITY CORPORATION

4.00% SOLAR BONDS, SERIES 2014/4-7

This note is one of a duly authorized issue of notes of the Company, designated as its “4.00% Solar Bonds, Series 2014/4-7” (herein called the “Notes”), issued under and pursuant to an Indenture, dated as of October 15, 2014 (the “Original Indenture”), between the Company and U.S. Bank National Association, as trustee (in such capacity, the “Trustee”), as supplemented with respect to the Notes by the Fourth Supplemental Indenture, dated as of October 15, 2014 (the “Supplemental Indenture,” and together with the Original Indenture, the “Indenture”), between the Company, as issuer, paying agent and security registrar (herein called the “ Paying Agent and Security Registrar”), and the Trustee, as trustee, and as the authenticating agent (herein called the “Authenticating Agent”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, Authenticating Agent, Paying Agent, Security Registrar, the Company and the Holders of the Notes. Capitalized terms used but not otherwise defined in this Note shall have the respective meanings ascribed thereto in the Indenture.

If an Event of Default (other than an Event of Default specified in clauses (4), (5) or (6) of Section 501 of the Indenture) occurs and is continuing with respect to the Notes, then the Trustee, or the Holders of not less than 25% in aggregate principal amount of the Notes may declare the principal of all the Notes, and accrued and unpaid interest, if any, and premium, if any, thereon to be due and payable immediately. If an Event of Default specified in clauses (4), (5) or (6) of Section 501 occurs, then the principal and accrued and unpaid interest, if any, and premium, if any, on all the Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Notes.

Subject to the provisions of the Indenture, the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default, subject to exceptions set forth in the Indenture. Upon any such waiver, said default shall for all purposes of this Note and the Indenture be deemed to have been cured and not to be continuing, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding, to execute supplemental indentures to modify provisions of the Indenture, subject to exceptions permitting the modification of the Indenture without the consent of any Holder of Notes or requiring the consent of each Holder of a Note affected by such modification all as set forth in the Indenture.

The Notes are issuable in fully registered form, without coupons, in denominations of $1,000 principal amount and any integral multiples thereof. The Notes may be exchanged for a like aggregate principal amount of Notes of any other authorized denominations, on the terms and subject to the conditions and limitations set forth in the Indenture.


The Company, the Trustee, Authenticating Agent, Paying Agent and Security Registrar may deem the Persons in whose name this Note shall be registered upon the Security Register to be, and may treat them as, the absolute owners of this Note with respect to the principal sum set forth opposite such Person’s name on Schedule A hereto (whether or not amounts under this Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Security Registrar), for the purpose of receiving payment of or on account of the principal of, and interest on this Note and for all other purposes; and neither the Company or the Trustee nor any Authenticating Agent, Paying Agent or any Security Registrar shall be affected by any notice to the contrary. All such payments so made to any Holders for the time being, or upon their orders, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon this Note.

No recourse for the payment of the principal of or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented hereby, shall be had against any incorporator, stockholder, partner, member, manager, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or any of the Company’s subsidiaries or of any successor thereto, either directly or through the Company or any of the Company’s subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution of the Indenture and the issue of this Note.

In the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control. The Indenture and this Note shall be governed by, and construed in accordance with, the laws of the State of New York.


Schedule A

SOLARCITY CORPORATION

4.00% SOLAR BONDS, SERIES 2014/4-7

 

Name of Holder

   Principal Amount    Issue Date
     

Aggregate Principal Amount Outstanding:

Exhibit 5.1

Opinion of K&L Gates LLP

October 15, 2014

SolarCity Corporation

3055 Clearview Way

San Mateo, California 94402

Ladies and Gentlemen:

We have acted as special counsel to SolarCity Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) on October 15, 2014, and the Prospectus dated October 15, 2014 included in the Registration Statement (the “Prospectus”), as supplemented by the Prospectus Supplement dated October 15, 2014 (the “Prospectus Supplement”), filed by the Company with the Commission under Rule 424(b) on October 15, 2014, relating to the issuance by the Company of $10,000,000 aggregate principal amount of 2.00% Solar Bonds, Series 2014/1-1 (the “Series 1 Bonds”) through the Company’s online platform (“Platform”).

The Series 1 Bonds are to be issued under an indenture (the “Base Indenture”) proposed to be entered into as of October 15, 2014 between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented and amended by the First Supplemental Indenture dated as of October 15, 2014 (together with the Base Indenture, the “Indenture”).

This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

(i) the Registration Statement, including the Prospectus;

(ii) the Prospectus Supplement;

(iii) the Amended and Restated Certificate of Incorporation of the Company, as further amended and supplemented and certified by the Secretary of the Company to be currently in effect (the “Charter”);

(iv) the Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company to be currently in effect (the “Bylaws”);

(v) the Indenture and the form of Solar Bond included therein;


SolarCity Corporation

October 15, 2014

Page 2

 

(vi) the corporate actions (including resolutions of the board of directors of the Company) that provide for, among other things, the approval of the Series 1 Bonds; and

(v) the form of Platform customer agreement and related undertakings to be made by purchasers of Solar Bonds.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of corporate records of the Company, and certificates of public officials and of officers or other representatives of the Company and others and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents, and the validity and binding effect thereof on such parties.

Our opinions set forth herein are limited to the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws and the laws of the State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the Registration Statement (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinions herein stated. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.

Based upon and subject to the foregoing and to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that, when the Series 1 Bonds have been duly executed and authenticated in accordance with the provisions of the Indenture and when and if issued and delivered against payment therefor in accordance with the terms and conditions of the Platform (including the Platform customer agreement and related undertakings made by purchasers of Solar Bonds) and in accordance with the Registration Statement, the Series 1 Bonds will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (a) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), including concepts of materiality, reasonableness, good faith and fair dealing; and (b) public policy considerations which may limit the rights of parties to obtain remedies.


SolarCity Corporation

October 15, 2014

Page 3

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also hereby consent to the use of our name under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

Yours truly,

/s/ K&L Gates LLP

Exhibit 5.2

Opinion of K&L Gates LLP

October 15, 2014

SolarCity Corporation

3055 Clearview Way San

Mateo, California 94402

Ladies and Gentlemen:

We have acted as special counsel to SolarCity Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) on October 15, 2014, and the Prospectus dated October 15, 2014 included in the Registration Statement (the “Prospectus”), as supplemented by the Prospectus Supplement dated October 15, 2014 (the “Prospectus Supplement”), filed by the Company with the Commission under Rule 424(b) on October 15, 2014, relating to the issuance by the Company of $10,000,000 aggregate principal amount of 2.50% Solar Bonds, Series 2014/2-2 (the “Series 2 Bonds”) through the Company’s online platform (“Platform”).

The Series 2 Bonds are to be issued under an indenture (the “Base Indenture”) proposed to be entered into as of October 15, 2014 between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented and amended by the Second Supplemental Indenture dated as of October 15, 2014 (together with the Base Indenture, the “Indenture”).

This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

(i) the Registration Statement, including the Prospectus;

(ii) the Prospectus Supplement;

(iii) the Amended and Restated Certificate of Incorporation of the Company, as further amended and supplemented and certified by the Secretary of the Company to be currently in effect (the “Charter”);

(iv) the Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company to be currently in effect (the “Bylaws”);

(v) the Indenture and the form of Solar Bond included therein;


SolarCity Corporation

October 15, 2014

Page 2

 

(vi) the corporate actions (including resolutions of the board of directors of the Company) that provide for, among other things, the approval of the Series 2 Bonds; and

(v) the form of Platform customer agreement and related undertakings to be made by purchasers of Solar Bonds.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of corporate records of the Company, and certificates of public officials and of officers or other representatives of the Company and others and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents, and the validity and binding effect thereof on such parties.

Our opinions set forth herein are limited to the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws and the laws of the State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the Registration Statement (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinions herein stated. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.

Based upon and subject to the foregoing and to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that, when the Series 2 Bonds have been duly executed and authenticated in accordance with the provisions of the Indenture and when and if issued and delivered against payment therefor in accordance with the terms and conditions of the Platform (including the Platform customer agreement and related undertakings made by purchasers of Solar Bonds) and in accordance with the Registration Statement, the Series 2 Bonds will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (a) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), including concepts of materiality, reasonableness, good faith and fair dealing; and (b) public policy considerations which may limit the rights of parties to obtain remedies.


SolarCity Corporation

October 15, 2014

Page 3

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also hereby consent to the use of our name under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

Yours truly,

/s/ K&L Gates LLP

Exhibit 5.3

Opinion of K&L Gates LLP

October 15, 2014

SolarCity Corporation

3055 Clearview Way

San Mateo, California 94402

Ladies and Gentlemen:

We have acted as special counsel to SolarCity Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) on October 15, 2014, and the Prospectus dated October 15, 2014 included in the Registration Statement (the “Prospectus”), as supplemented by the Prospectus Supplement dated October 15, 2014 (the “Prospectus Supplement”), filed by the Company with the Commission under Rule 424(b) on October 15, 2014, relating to the issuance by the Company of $10,000,000 aggregate principal amount of 3.00% Solar Bonds, Series 2014/3-3 (the “Series 3 Bonds”) through the Company’s online platform (“Platform”).

The Series 3 Bonds are to be issued under an indenture (the “Base Indenture”) proposed to be entered into as of October 15, 2014 between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented and amended by the Third Supplemental Indenture dated as of October 15, 2014 (together with the Base Indenture, the “Indenture”).

This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

(i) the Registration Statement, including the Prospectus;

(ii) the Prospectus Supplement;

(iii) the Amended and Restated Certificate of Incorporation of the Company, as further amended and supplemented and certified by the Secretary of the Company to be currently in effect (the “Charter”);

(iv) the Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company to be currently in effect (the “Bylaws”);

(v) the Indenture and the form of Solar Bond included therein;


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October 15, 2014

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(vi) the corporate actions (including resolutions of the board of directors of the Company) that provide for, among other things, the approval of the Series 3 Bonds; and

(v) the form of Platform customer agreement and related undertakings to be made by purchasers of Solar Bonds.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of corporate records of the Company, and certificates of public officials and of officers or other representatives of the Company and others and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents, and the validity and binding effect thereof on such parties.

Our opinions set forth herein are limited to the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws and the laws of the State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the Registration Statement (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinions herein stated. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.

Based upon and subject to the foregoing and to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that, when the Series 3 Bonds have been duly executed and authenticated in accordance with the provisions of the Indenture and when and if issued and delivered against payment therefor in accordance with the terms and conditions of the Platform (including the Platform customer agreement and related undertakings made by purchasers of Solar Bonds) and in accordance with the Registration Statement, the Series 3 Bonds will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (a) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), including concepts of materiality, reasonableness, good faith and fair dealing; and (b) public policy considerations which may limit the rights of parties to obtain remedies.


SolarCity Corporation

October 15, 2014

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We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also hereby consent to the use of our name under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

Yours truly,

/s/ K&L Gates LLP

Exhibit 5.4

Opinion of K&L Gates LLP

October 15, 2014

SolarCity Corporation

3055 Clearview Way

San Mateo, California 94402

Ladies and Gentlemen:

We have acted as special counsel to SolarCity Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) on October 15, 2014, and the Prospectus dated October 15, 2014 included in the Registration Statement (the “Prospectus”), as supplemented by the Prospectus Supplement dated October 15, 2014 (the “Prospectus Supplement”), filed by the Company with the Commission under Rule 424(b) on October 15, 2014, relating to the issuance by the Company of $10,000,000 aggregate principal amount of 4.00% Solar Bonds, Series 2014/4-7 (the “Series 4 Bonds”) through the Company’s online platform (“Platform”).

The Series 4 Bonds are to be issued under an indenture (the “Base Indenture”) proposed to be entered into as of October 15, 2014 between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented and amended by the Fourth Supplemental Indenture dated as of October 15, 2014 (together with the Base Indenture, the “Indenture”).

This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:

(i) the Registration Statement, including the Prospectus;

(ii) the Prospectus Supplement;

(iii) the Amended and Restated Certificate of Incorporation of the Company, as further amended and supplemented and certified by the Secretary of the Company to be currently in effect (the “Charter”);

(iv) the Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company to be currently in effect (the “Bylaws”);

(v) the Indenture and the form of Solar Bond included therein;


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October 15, 2014

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(vi) the corporate actions (including resolutions of the board of directors of the Company) that provide for, among other things, the approval of the Series 4 Bonds; and

(v) the form of Platform customer agreement and related undertakings to be made by purchasers of Solar Bonds.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of corporate records of the Company, and certificates of public officials and of officers or other representatives of the Company and others and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents or documents to be executed, we have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents, and the validity and binding effect thereof on such parties.

Our opinions set forth herein are limited to the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws and the laws of the State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the Registration Statement (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-Opined on Law on the opinions herein stated. This opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.

Based upon and subject to the foregoing and to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that, when the Series 4 Bonds have been duly executed and authenticated in accordance with the provisions of the Indenture and when and if issued and delivered against payment therefor in accordance with the terms and conditions of the Platform (including the Platform customer agreement and related undertakings made by purchasers of Solar Bonds) and in accordance with the Registration Statement, the Series 4 Bonds will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (a) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), including concepts of materiality, reasonableness, good faith and fair dealing; and (b) public policy considerations which may limit the rights of parties to obtain remedies.


SolarCity Corporation

October 15, 2014

Page 3

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also hereby consent to the use of our name under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

Yours truly,

/s/ K&L Gates LLP