UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

(Mark One)

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2017

OR

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission File Number: 001-34756

Tesla, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

 

91-2197729

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

3500 Deer Creek Road

Palo Alto, California

 

94304

(Address of principal executive offices)

 

(Zip Code)

(650) 681-5000

(Registrant’s telephone number, including area code)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 (“Exchange Act”) during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes       No  

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes       No  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act:

 

Large accelerated filer

 

 

 

 

Accelerated filer

 

 

 

 

 

 

 

 

 

 

Non-accelerated filer

 

 

(Do not check if a smaller reporting company)

 

Smaller reporting company

 

 

 

 

 

 

 

 

 

 

Emerging growth company

 

 

 

 

 

 

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes       No  

As of July 31, 2017, there were 166,887,023 shares of the registrant’s common stock outstanding.

 

 

 

 

 

 


 

TESLA, INC.

FORM 10-Q FOR THE QUARTER ENDED JUNE 30, 2017

INDEX

 

 

 

 

 

Page

PART I.

 

FINANCIAL INFORMATION

 

 

 

 

 

 

 

Item 1.

 

Financial Statements (Unaudited)

 

4

 

 

Consolidated Balance Sheets

 

4

 

 

Consolidated Statements of Operations

 

5

 

 

Consolidated Statements of Comprehensive Loss

 

6

 

 

Consolidated Statements of Cash Flows

 

7

 

 

Notes to Consolidated Financial Statements

 

8

Item 2.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

30

Item 3.

 

Quantitative and Qualitative Disclosures About Market Risk

 

38

Item 4.

 

Controls and Procedures

 

39

 

 

 

 

 

PART II.

 

OTHER INFORMATION

 

 

 

 

 

 

 

Item 1.

 

Legal Proceedings

 

40

Item 1A.

 

Risk Factors

 

41

Item 2.

 

Unregistered Sales of Equity Securities and Use of Proceeds

 

56

Item 3.

 

Defaults Upon Senior Securities

 

56

Item 4.

 

Mine Safety Disclosures

 

56

Item 5.

 

Other Information

 

56

Item 6.

 

Exhibits

 

56

 

 

 

 

 

SIGNATURES

 

57

 

 

 

 

 


 

Forward-Looking Statements

The discussions in this Quarterly Report on Form 10-Q contain forward-looking statements reflecting our current expectations that involve risks and uncertainties. These forward-looking statements include, but are not limited to, statements concerning our strategy, future operations, future financial position, future revenues, projected costs, profitability, expected cost reductions, capital adequacy, expectations regarding demand and acceptance for our technologies, growth opportunities and trends in the market in which we operate, prospects and plans and objectives of management. The words “anticipates”, “believes”, “could”, “estimates”, “expects”, “intends”, “may”, “might”, “plans”, “projects”, “will”, “would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. We may not actually achieve the plans, intentions or expectations disclosed in these forward-looking statements, and you should not place undue reliance on these forward-looking statements. These forward-looking statements involve risks and uncertainties that could cause our actual results or events to differ materially from the plans, intentions or expectations disclosed in these forward-looking statements, including, without limitation, the risks set forth in Part II, Item 1A, “Risk Factors” in this Quarterly Report on Form 10-Q and in our other filings with the Securities and Exchange Commission. We do not assume any obligation to update any forward-looking statements.

 

 

 

 

 


 

P ART I. FINANCIAL INFORMATION

ITEM 1. FINANCIAL STATEMENTS

Tesla, Inc.

Consolidated Balance Sheets

(in thousands, except for par values)

(unaudited)

 

  

 

June 30,

 

 

December 31,

 

 

 

2017

 

 

2016

 

Assets

 

 

 

 

 

 

 

 

Current assets

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

3,035,924

 

 

$

3,393,216

 

Restricted cash

 

 

118,369

 

 

 

105,519

 

Accounts receivable, net

 

 

453,539

 

 

 

499,142

 

Inventory

 

 

2,438,111

 

 

 

2,067,454

 

Prepaid expenses and other current assets

 

 

313,501

 

 

 

194,465

 

Total current assets

 

 

6,359,444

 

 

 

6,259,796

 

Operating lease vehicles, net

 

 

3,600,821

 

 

 

3,134,080

 

Solar energy systems, leased and to be leased, net

 

 

6,218,504

 

 

 

5,919,880

 

Property, plant and equipment, net

 

 

8,399,229

 

 

 

5,982,957

 

Intangible assets, net

 

 

380,847

 

 

 

376,145

 

Goodwill

 

 

43,766

 

 

 

 

MyPower customer notes receivable, net of current portion

 

 

472,663

 

 

 

506,302

 

Restricted cash, net of current portion

 

 

358,445

 

 

 

268,165

 

Other assets

 

 

209,986

 

 

 

216,751

 

Total assets

 

$

26,043,705

 

 

$

22,664,076

 

Liabilities

 

 

 

 

 

 

 

 

Current liabilities

 

 

 

 

 

 

 

 

Accounts payable

 

$

2,359,316

 

 

$

1,860,341

 

Accrued liabilities and other

 

 

1,510,744

 

 

 

1,210,028

 

Deferred revenue

 

 

913,398

 

 

 

763,126

 

Resale value guarantees

 

 

342,824

 

 

 

179,504

 

Customer deposits

 

 

603,540

 

 

 

663,859

 

Current portion of long-term debt and capital leases

 

 

716,533

 

 

 

984,211

 

Current portion of solar bonds and promissory notes issued to related parties

 

 

100,000

 

 

 

165,936

 

Total current liabilities

 

 

6,546,355

 

 

 

5,827,005

 

Long-term debt and capital leases, net of current portion

 

 

7,122,862

 

 

 

5,860,049

 

Solar bonds issued to related parties, net of current portion

 

 

100

 

 

 

99,164

 

Convertible senior notes issued to related parties

 

 

2,444

 

 

 

10,287

 

Deferred revenue, net of current portion

 

 

1,035,579

 

 

 

851,790

 

Resale value guarantees, net of current portion

 

 

2,493,024

 

 

 

2,210,423

 

Other long-term liabilities

 

 

2,259,538

 

 

 

1,891,449

 

Total liabilities

 

 

19,459,902

 

 

 

16,750,167

 

Commitments and contingencies (Note 14)

 

 

 

 

 

 

 

 

Redeemable noncontrolling interests in subsidiaries

 

 

367,377

 

 

 

367,039

 

Convertible senior notes (Notes 11)

 

 

1,688

 

 

 

8,784

 

Equity

 

 

 

 

 

 

 

 

Stockholders' equity

 

 

 

 

 

 

 

 

Preferred stock; $0.001 par value; 100,000 shares authorized; no shares

   issued and outstanding

 

 

 

 

 

 

Common stock; $0.001 par value; 2,000,000 shares authorized; 166,863 and 161,561

   shares issued and outstanding as of June 30, 2017 and December 31, 2016, respectively

 

 

163

 

 

 

161

 

Additional paid-in capital

 

 

8,774,212

 

 

 

7,773,727

 

Accumulated other comprehensive gain (loss)

 

 

10,961

 

 

 

(23,740

)

Accumulated deficit

 

 

(3,679,584

)

 

 

(2,997,237

)

Total stockholders' equity

 

 

5,105,752

 

 

 

4,752,911

 

Noncontrolling interests in subsidiaries

 

 

1,108,986

 

 

 

785,175

 

Total liabilities and equity

 

$

26,043,705

 

 

$

22,664,076

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

4


 

Tesla, Inc.

Consolidated Statements of Operations

(in thousands, except per share data)

(unaudited)

 

 

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Revenues

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Automotive sales

 

$

2,013,852

 

 

$

1,030,224

 

 

$

4,048,912

 

 

$

1,932,116

 

Automotive leasing

 

 

272,764

 

 

 

151,628

 

 

 

527,304

 

 

 

275,800

 

Total automotive revenues

 

 

2,286,616

 

 

 

1,181,852

 

 

 

4,576,216

 

 

 

2,207,916

 

Energy generation and storage

 

 

286,780

 

 

 

3,947

 

 

 

500,724

 

 

 

26,675

 

Services and other

 

 

216,161

 

 

 

84,218

 

 

 

408,887

 

 

 

182,474

 

Total revenues

 

 

2,789,557

 

 

 

1,270,017

 

 

 

5,485,827

 

 

 

2,417,065

 

Cost of revenues

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Automotive sales

 

 

1,472,578

 

 

 

827,231

 

 

 

2,969,227

 

 

 

1,540,380

 

Automotive leasing

 

 

175,433

 

 

 

82,051

 

 

 

341,459

 

 

 

148,218

 

Total automotive cost of revenues

 

 

1,648,011

 

 

 

909,282

 

 

 

3,310,686

 

 

 

1,688,598

 

Energy generation and storage

 

 

203,762

 

 

 

8,159

 

 

 

355,535

 

 

 

26,272

 

Services and other

 

 

271,169

 

 

 

77,800

 

 

 

485,045

 

 

 

174,951

 

Total cost of revenues

 

 

2,122,942

 

 

 

995,241

 

 

 

4,151,266

 

 

 

1,889,821

 

Gross profit

 

 

666,615

 

 

 

274,776

 

 

 

1,334,561

 

 

 

527,244

 

Operating expenses

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Research and development

 

 

369,774

 

 

 

191,664

 

 

 

691,814

 

 

 

374,146

 

Selling, general and administrative

 

 

537,757

 

 

 

321,152

 

 

 

1,141,212

 

 

 

639,362

 

Total operating expenses

 

 

907,531

 

 

 

512,816

 

 

 

1,833,026

 

 

 

1,013,508

 

Loss from operations

 

 

(240,916

)

 

 

(238,040

)

 

 

(498,465

)

 

 

(486,264

)

Interest income

 

 

4,785

 

 

 

2,242

 

 

 

7,875

 

 

 

3,493

 

Interest expense

 

 

(108,441

)

 

 

(46,368

)

 

 

(207,787

)

 

 

(86,993

)

Other (expense) income, net

 

 

(41,208

)

 

 

(7,373

)

 

 

(59,306

)

 

 

1,804

 

Loss before income taxes

 

 

(385,780

)

 

 

(289,539

)

 

 

(757,683

)

 

 

(567,960

)

Provision for income taxes

 

 

15,647

 

 

 

3,649

 

 

 

40,925

 

 

 

7,495

 

Net loss

 

 

(401,427

)

 

 

(293,188

)

 

 

(798,608

)

 

 

(575,455

)

Net loss attributable to noncontrolling interests and

   redeemable noncontrolling interests in subsidiaries

 

 

(65,030

)

 

 

 

 

 

(131,934

)

 

 

 

Net loss attributable to common stockholders

 

$

(336,397

)

 

$

(293,188

)

 

$

(666,674

)

 

$

(575,455

)

Net loss per share of common stock attributable to common

   stockholders, basic and diluted

 

$

(2.04

)

 

$

(2.09

)

 

$

(4.07

)

 

$

(4.22

)

Weighted average shares used in computing net loss per share

   of common stock, basic and diluted

 

 

165,212

 

 

 

139,983

 

 

 

163,679

 

 

 

136,330

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

5


 

Tesla, Inc.

Consolidated Statements of Comprehensive Loss

(in thousands)

(unaudited)

 

 

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Net loss attributable to common stockholders

 

$

(336,397

)

 

$

(293,188

)

 

$

(666,674

)

 

$

(575,455

)

Unrealized gain (loss) on derivatives:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Change in net unrealized gain

 

 

 

 

 

22,928

 

 

 

 

 

 

43,733

 

Less: Reclassification adjustment for net losses into

   net loss

 

 

 

 

 

 

 

 

(5,570

)

 

 

 

Net unrealized gain (loss) on derivatives

 

 

 

 

 

22,928

 

 

 

(5,570

)

 

 

43,733

 

Foreign currency translation adjustment

 

 

31,730

 

 

 

(2,300

)

 

 

40,271

 

 

 

(5,984

)

Other comprehensive income

 

 

31,730

 

 

 

20,628

 

 

 

34,701

 

 

 

37,749

 

Comprehensive loss

 

$

(304,667

)

 

$

(272,560

)

 

$

(631,973

)

 

$

(537,706

)

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

6


 

Tesla, Inc.

Consolidated Statements of Cash Flows

(in thousands)

(unaudited)

 

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

Cash Flows From Operating Activities

 

 

 

 

 

 

 

 

Net loss

 

$

(798,608

)

 

$

(575,455

)

Adjustments to reconcile net loss to net cash used in operating activities:

 

 

 

 

 

 

 

 

Depreciation and amortization

 

 

765,773

 

 

 

339,692

 

Stock-based compensation

 

 

219,759

 

 

 

156,969

 

Amortization of debt discounts

 

 

64,151

 

 

 

41,696

 

Inventory write-downs

 

 

71,255

 

 

 

29,725

 

Loss on disposal of property and equipment

 

 

53,572

 

 

 

11,563

 

Foreign currency transaction loss (gain)

 

 

29,394

 

 

 

(8,081

)

Loss on the acquisition of SolarCity

 

 

11,571

 

 

 

 

Non-cash interest and other operating activities

 

 

57,023

 

 

 

16,167

 

Changes in operating assets and liabilities, net of effect of business combinations

 

 

 

 

 

 

 

 

Accounts receivable

 

 

77,043

 

 

 

(1,426

)

Inventories and operating lease vehicles

 

 

(1,121,155

)

 

 

(1,217,931

)

Prepaid expenses and other current assets

 

 

(113,192

)

 

 

19,494

 

MyPower customer notes receivable and other assets

 

 

26,339

 

 

 

(7,447

)

Accounts payable and accrued liabilities

 

 

13,234

 

 

 

212,949

 

Deferred revenue

 

 

208,685

 

 

 

165,144

 

Customer deposits

 

 

(71,064

)

 

 

398,555

 

Resale value guarantee

 

 

176,505

 

 

 

253,710

 

Other long-term liabilities

 

 

59,732

 

 

 

65,407

 

Net cash used in operating activities

 

 

(269,983

)

 

 

(99,269

)

Cash Flows From Investing Activities

 

 

 

 

 

 

 

 

Purchases of property and equipment excluding capital leases, net of sales

 

 

(1,511,692

)

 

 

(511,579

)

Maturities of short-term marketable securities

 

 

 

 

 

16,667

 

Purchase of solar energy systems, leased and to be leased

 

 

(418,792

)

 

 

 

Increase in restricted cash

 

 

(102,528

)

 

 

(58,761

)

Business combination, net of cash acquired

 

 

(109,147

)

 

 

 

Net cash used in investing activities

 

 

(2,142,159

)

 

 

(553,673

)

Cash Flows From Financing Activities

 

 

 

 

 

 

 

 

Proceeds from issuance of common stock in public offering

 

 

400,175

 

 

 

1,701,734

 

Proceeds from issuance of convertible and other debt

 

 

2,408,586

 

 

 

1,108,000

 

Repayments of convertible and other debt

 

 

(1,412,286

)

 

 

(578,683

)

Repayments of borrowings under solar bonds issued to related parties

 

 

(165,000

)

 

 

 

Collateralized lease borrowings

 

 

335,675

 

 

 

384,525

 

Proceeds from exercise of stock options and other stock issuances

 

 

158,913

 

 

 

110,478

 

Principal payments on capital leases

 

 

(36,857

)

 

 

(18,270

)

Common stock and debt issuance costs

 

 

(13,688

)

 

 

(15,765

)

Purchase of convertible note hedges

 

 

(204,102

)

 

 

 

Proceeds from settlement of convertible note hedges

 

 

251,850

 

 

 

 

Proceeds from issuance of warrants

 

 

52,883

 

 

 

 

Payments for settlement of warrants

 

 

(208,193

)

 

 

 

Proceeds from investment by noncontrolling interests in subsidiaries

 

 

583,433

 

 

 

 

Distributions paid to noncontrolling interests in subsidiaries

 

 

(123,873

)

 

 

 

Net cash provided by financing activities

 

 

2,027,516

 

 

 

2,692,019

 

Effect of exchange rate changes on cash and cash equivalents

 

 

27,334

 

 

 

10,316

 

Net (decrease) increase in cash and cash equivalents

 

 

(357,292

)

 

 

2,049,393

 

Cash and cash equivalents, beginning of period

 

 

3,393,216

 

 

 

1,196,908

 

Cash and cash equivalents, end of period

 

$

3,035,924

 

 

$

3,246,301

 

Supplemental noncash investing and financing activities

 

 

 

 

 

 

 

 

Acquisition of property and equipment included in liabilities

 

$

1,021,692

 

 

$

324,982

 

Estimated fair value of facilities under build-to-suit leases

 

$

173,075

 

 

$

172,770

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

7


 

Tesla, Inc.

Notes to Consolidated Financial Statements

(Unaudited)

Note 1 – Overview

Tesla, Inc. (“Tesla”, the “Company”, “we”, “us” or “our”) was incorporated in the State of Delaware on July 1, 2003. We design, develop, manufacture and sell high-performance fully electric vehicles and design, manufacture, install and sell solar energy generation and energy storage products. Our Chief Executive Officer, as the chief operating decision maker (“CODM”), organizes the Company, manages resource allocations and measures performance among two segments: (i) automotive and (ii) energy generation and storage.

 

Note 2 – Summary of Significant Accounting Policies

Unaudited Interim Financial Statements

The consolidated balance sheet as of June 30, 2017, the consolidated statements of operations and the consolidated statements of comprehensive loss for the three and six months ended June 30, 2017 and 2016 and the consolidated statements of cash flows for the six months ended June 30, 2017 and 2016, as well as other information disclosed in the accompanying notes, are unaudited. The consolidated balance sheet as of December 31, 2016 was derived from the audited consolidated financial statements as of that date. The interim consolidated financial statements and the accompanying notes should be read in conjunction with the annual consolidated financial statements and the accompanying notes contained in our Annual Report on Form 10-K for the year ended December 31, 2016.

The interim consolidated financial statements and the accompanying notes have been prepared on the same basis as the annual consolidated financial statements and, in the opinion of management, reflect all adjustments, which include only normal recurring adjustments, necessary for a fair statement of the results of operations for the periods presented. The consolidated results of operations for any interim period are not necessarily indicative of the results to be expected for the full year or for any other future years or interim periods.

Reclassifications

Certain prior period balances have been reclassified to conform to the current period presentation in the consolidated financial statements and the accompanying notes. Such reclassifications had no effect on previously reported results of operations. Starting in the fourth quarter of 2016, we have reclassified the revenue and cost of revenue of our energy storage products from ‘services and other’ into ‘energy generation and storage’ for all periods presented in order to align with our reportable segments.

Resale Value Guarantees and Other Financing Programs

Vehicle sales to customers with a resale value guarantee

Prior to June 30, 2016, we offered resale value guarantees or similar buy-back terms to all customers who purchase vehicles and who financed their vehicles through one of our specified commercial banking partners. Since June   30, 2016, this program is available only in certain international markets. Under this program, customers have the option of selling their vehicle back to us during the guarantee period for a determined resale value. Guarantee periods generally range from 36 to 39 months. Although we receive full payment for the vehicle sales price at the time of delivery, we are required to account for these transactions as operating leases. The amount of sale proceeds equal to the resale value guarantee is deferred until the guarantee expires or is exercised. The remaining sale proceeds are deferred and recognized on a straight-line basis over the stated guarantee period to automotive leasing revenue. The guarantee period expires at the earlier of the end of the guarantee period or the pay-off of the initial loan. We capitalize the cost of these vehicles on the consolidated balance sheets as operating lease vehicles, net, and depreciate their value, less salvage value, to cost of automotive leasing revenue over the same period.

In cases where a customer retains ownership of a vehicle at the end of the guarantee period, the resale value guarantee liability and any remaining deferred revenue balances related to the vehicle are settled to automotive leasing revenue and the net book value of the leased vehicle is expensed to costs of automotive leasing revenue. If a customer returns the vehicle to us during the guarantee period, we purchase the vehicle from the customer in an amount equal to the resale value guarantee and settle any remaining deferred balances to automotive leasing revenue, and we reclassify the net book value of the vehicle on our balance sheet to pre-owned vehicle inventory. As of June 30, 2017 and December 31, 2016, $222.9 million and $179.5 million, respectively, of the guarantees were exercisable by customers within a 12-month period from each such date.

8


 

Vehicle sales to leasing partners with a resale value guarantee

We also offer resale value guarantees in connection with automobile sales to certain leasing partners. As we have guaranteed the value of these vehicles and as the vehicles are leased to end-customers, we account for these transactions as interest bearing collateralized borrowings as required under ASC 840, Leases . Under this program, cash is received for the full price of the vehicle and is recorded within resale value guarantees for the long-term portion and deferred revenue for the current portion. We accrete the deferred revenue amount to automotive leasing revenue on a straight-line basis over the guarantee period and accrue interest expense based on our borrowing rate. We capitalize vehicles under this program to operating lease vehicles, net, on the consolidated balance sheets, and we record depreciation from these vehicles to cost of automotive leasing revenues during the period the vehicle is under a lease arrangement. Cash received for these vehicles, net of revenue recognized during the period, is classified as collateralized lease borrowings within cash flows from financing activities in the consolidated statements of cash flows.

At the end of the lease term, we settle our liability in cash by either purchasing the vehicle from the leasing partner for the resale value guarantee amount or paying a shortfall to the guarantee amount the leasing partner may realize on the sale of the vehicle. Any remaining balances within deferred revenue and resale value guarantee will be settled to automotive leasing revenue. In cases where the leasing partner retains ownership of the vehicle after the end of our guarantee period, we expense the net value of the leased vehicle to costs of automotive leasing revenue . The maximum amount we could be required to pay under this program, should we decide to repurchase all vehicles, was $1.09   billion as of June 30, 2017, including $119.9 million within a 12-month period from such date .

As of June 30, 2017 and December 31, 2016, we had $1.48 billion and $ 1.18 billion , respectively, of such borrowings recorded in resale value guarantees and $342.1   million and $ 289.1  million, respectively, recorded in deferred revenue liability . As of June 30, 2017 and December 31, 2016, we had a total of $47.1 million and $57.0 million, respectively, in account receivables from our leasing partners .

On a quarterly basis, we assess the estimated market values of vehicles under our resale value guarantee program to determine if we have sustained a loss on any of these contracts. As we accumulate more data related to the resale values of our vehicles or as market conditions change, there may be material changes to their estimated values.

9


 

Activity related to our resale value guarantee and similar programs consisted of the following (in thousands):

 

  

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Operating Lease Vehicles

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating lease vehicles—beginning of period

 

$

2,732,399

 

 

$

1,909,310

 

 

$

2,462,061

 

 

$

1,556,529

 

Net increase in operating lease vehicles

 

 

252,553

 

 

 

291,036

 

 

 

666,914

 

 

 

705,017

 

Depreciation expense recorded in cost

   of automotive leasing revenues

 

 

(93,161

)

 

 

(57,568

)

 

 

(172,017

)

 

 

(102,386

)

Additional depreciation expense recorded in cost

   of automotive leasing revenues as a result of

   early cancellation of resale value guarantee

 

 

(3,792

)

 

 

(2,571

)

 

 

(12,215

)

 

 

(5,657

)

Additional depreciation expense recorded in cost

   of automotive leasing revenues result of

   expiration

 

 

(31,467

)

 

 

 

 

 

(72,899

)

 

 

 

Increases to inventory from vehicles returned

   under our trade-in program and exercises of

   resale value guarantee

 

 

(20,868

)

 

 

(13,626

)

 

 

(36,180

)

 

 

(26,922

)

Operating lease vehicles—end of period

 

$

2,835,664

 

 

$

2,126,581

 

 

$

2,835,664

 

 

$

2,126,581

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deferred Revenue

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deferred revenue—beginning of period

 

$

1,010,502

 

 

$

800,968

 

 

$

916,652

 

 

$

679,132

 

Net increase in deferred revenue from new vehicle

   deliveries and reclassification of collateralized

   borrowing from long-term to short-term

 

 

166,176

 

 

 

165,875

 

 

 

404,863

 

 

 

391,639

 

Amortization of deferred revenue and short-term

   collateralized borrowing recorded in automotive

   leasing revenue

 

 

(165,518

)

 

 

(108,852

)

 

 

(303,186

)

 

 

(206,600

)

Additional revenue recorded in automotive leasing

   revenue as a result of early cancellation of resale

   value guarantee

 

 

(615

)

 

 

(3,424

)

 

 

(2,352

)

 

 

(6,420

)

Recognition of deferred revenue resulting from

   return of vehicle under trade-in program,

   expiration, and exercises of resale value

   guarantee

 

 

(3,945

)

 

 

(2,883

)

 

 

(9,377

)

 

 

(6,067

)

Deferred revenue—end of period

 

$

1,006,600

 

 

$

851,684

 

 

$

1,006,600

 

 

$

851,684

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Resale Value Guarantee

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Resale value guarantee liability—beginning of

   period

 

$

2,692,593

 

 

$

1,775,498

 

 

$

2,389,927

 

 

$

1,430,573

 

Increase in resale value guarantee

 

 

143,598

 

 

 

270,436

 

 

 

562,319

 

 

 

651,935

 

Reclassification from long-term to short-term

   collateralized borrowing

 

 

(67,097

)

 

 

(23,216

)

 

 

(115,481

)

 

 

(46,042

)

Additional revenue recorded in automotive

   leasing revenue as a result of early cancellation

   of resale value guarantee

 

 

(2,106

)

 

 

(3,318

)

 

 

(8,248

)

 

 

(5,819

)

Release of resale value guarantee resulting from

   return of vehicle under trade-in program and

   exercises

 

 

(19,634

)

 

 

(12,053

)

 

 

(39,833

)

 

 

(23,300

)

Release of resale value guarantee resulting from

   expiration of resale value guarantee

 

 

(31,394

)

 

 

 

 

 

(72,724

)

 

 

 

Resale value guarantee liability—end of period

 

$

2,715,960

 

 

$

2,007,347

 

 

$

2,715,960

 

 

$

2,007,347

 

Income Taxes

There are transactions that occur during the ordinary course of business for which the ultimate tax determination is uncertain. As of June 30, 2017 and December 31, 2016, the aggregate balances of our gross unrecognized tax benefits were $235.0 million and

10


 

$203.9 million, respectively, of which $ 228.2  million and $198.3 million, respectively, would not give rise to changes in our effective tax rate sinc e these tax benefits would increase a deferred tax asset that is currently fully offset by a valuation allowance .

Net Loss per Share of Common Stock Attributable to Common Stockholders

Basic net income (loss) per share of common stock attributable to common stockholders is calculated by dividing net income (loss) attributable to common stockholders by the weighted-average shares of common stock outstanding for the period. Potentially dilutive shares, which are based on the weighted-average shares of common stock underlying outstanding stock-based awards, warrants and convertible senior notes using the treasury stock method or the if-converted method, as applicable, are included when calculating diluted net income (loss) per share of common stock attributable to common stockholders when their effect is dilutive. Since we expect to settle in cash the principal outstanding under the 0.25% Convertible Senior Notes due in 2019, the 1.25% Convertible Senior Notes due in 2021 and the 2.375% Convertible Senior Notes due in 2022, we use the treasury stock method when calculating their potential dilutive effect, if any. The following table presents the potentially dilutive shares that were excluded from the computation of diluted net income (loss) per share of common stock attributable to common stockholders, because their effect was anti-dilutive:

 

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Stock-based awards

 

 

9,038,397

 

 

 

11,345,742

 

 

 

10,434,764

 

 

 

13,538,610

 

Convertible senior notes

 

 

2,792,247

 

 

 

2,345,823

 

 

 

2,972,278

 

 

 

2,150,258

 

Warrants

 

 

801,673

 

 

 

998,101

 

 

 

736,567

 

 

 

702,123

 

Concentration of Risk

Credit Risk

Financial instruments that potentially subject us to a concentration of credit risk consist of cash, cash equivalents, restricted cash, accounts receivable and interest rate swaps. Our cash balances are primarily invested in money market funds or on deposit at high credit quality financial institutions in the United States. At times, these deposits may be in excess of insured limits. As of June 30, 2017, no customer represented 10% or more of our total accounts receivable balance. As of December 31, 2016, one customer represented 10% or more of our total accounts receivable balance. The risk of concentration for our interest rate swaps is mitigated by transacting with several highly rated multinational banks. We maintain reserves for any amounts that we consider uncollectible.

Supply Risk

We are dependent on our suppliers, the majority of which are single source suppliers, and the inability of these suppliers to deliver necessary components of our products in a timely manner at prices, quality levels and volumes acceptable to us, or our inability to efficiently manage these components from these suppliers, could have a material adverse effect on our business, prospects, financial condition and operating results.

11


 

Warranties

We provide a manufacturer’s warranty on all new and certified pre-owned vehicles, production powertrain components and systems and energy products we sell. In addition, we also provide a warranty on the installation and components of the solar energy systems we sell for periods typically between 10 to 30 years. We accrue a warranty reserve for the products sold by us, which includes our best estimate of the projected costs to repair or replace items under warranty. These estimates are based on actual claims incurred to date and an estimate of the nature, frequency and costs of future claims. These estimates are inherently uncertain given our relatively short history of sales, and changes to our historical or projected warranty experience may cause material changes to the warranty reserve in the future. In addition, during the three months ended June 30, 2017, we recorded an $8.9 million increase to the accrued warranty balance as a result of foreign currency exchange rate fluctuations. The warranty reserve does not include projected warranty costs associated with our vehicles subject to lease accounting and our solar energy systems under lease contracts or power purchase agreements, as the costs to repair these warranty claims are expensed as incurred. The portion of the warranty reserve expected to be incurred within the next 12 months is included within accrued liabilities and other while the remaining balance is included within other long-term liabilities on our consolidated balance sheets. Warranty expense is recorded as a component of cost of revenues. Accrued warranty activity consisted of the following (in thousands):

 

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Accrued warranty—beginning of period

 

$

306,951

 

 

$

198,705

 

 

$

266,655

 

 

$

180,754

 

Warranty costs incurred

 

 

(25,384

)

 

 

(24,459

)

 

 

(48,400

)

 

 

(40,163

)

Net changes in liability for pre-existing warranties,

   including expirations and foreign exchange impact

 

 

8,915

 

 

 

3,250

 

 

 

2,653

 

 

 

6,634

 

Provision for warranty

 

 

52,797

 

 

 

38,963

 

 

 

122,371

 

 

 

69,234

 

Accrued warranty—end of period

 

$

343,279

 

 

$

216,459

 

 

$

343,279

 

 

$

216,459

 

For the three and six months ended June 30, 2017, warranty costs incurred for vehicles accounted for as operating leases or collateralized debt arrangements were $7.4 million and $13.5 million, respectively, and for the three and six months ended June 30, 2016, such costs were $2.6 million and $5.1 million, respectively.

Recent Accounting Pronouncements

In May 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-09, Revenue from Contracts with Customers , to replace the existing revenue recognition criteria for contracts with customers. In August 2015, the FASB issued ASU No. 2015-14, Deferral of the Effective Date , to defer the effective date of ASU No. 2014-09 to interim and annual periods beginning after December 15, 2017, with early adoption permitted. Subsequently, the FASB issued ASU No. 2016-08, Principal versus Agent Considerations , ASU No. 2016-10, Identifying Performance Obligations and Licensing , ASU No. 2016-11, Rescission of SEC Guidance Because of Accounting Standards Updates 2014-09 and 2014-16 Pursuant to Staff Announcements at the March 3, 2016 EITF Meeting , ASU No. 2016-12, Narrow-Scope Improvements and Practical Expedients , and ASU No. 2016-20, Technical Corrections and Improvements , to clarify and amend the guidance in ASU No. 2014-09. We will adopt the ASUs on January 1, 2018. We are continuing to assess the impact of adopting the ASUs on our financial position, results of operations and related disclosures and have not yet determined whether the effect will be material.

In February 2016, the FASB issued ASU No. 2016-02, Leases , to require lessees to recognize all leases, with certain exceptions, on the balance sheet, while recognition on the statement of operations will remain similar to current lease accounting. The ASU also eliminates real estate-specific provisions and modifies certain aspects of lessor accounting. The ASU is effective for interim and annual periods beginning after December 15, 2018, with early adoption permitted. We currently expect to adopt the ASU on January 1, 2019. We will be required to recognize and measure leases existing at, or entered into after, the beginning of the earliest comparative period presented using a modified retrospective approach, with certain practical expedients available. We intend to elect the available practical expedients upon adoption. Upon adoption, we expect our consolidated balance sheet to include a right of use asset and liability related to substantially all of our lease arrangements. We are continuing to assess the impact of adopting the ASU on our financial position, results of operations and related disclosures and have not yet determined whether the effect will be material.

In March 2016, the FASB issued ASU No. 2016-06, Contingent Put and Call Options in Debt Instruments , to clarify when a contingent put or call option to accelerate the repayment of debt is an embedded derivative. The ASU is effective for interim and annual periods beginning after December 15, 2016, with early adoption permitted. Adoption of the ASU is modified retrospective. We adopted the ASU on January 1, 2017, but the ASU did not have an impact on the consolidated financial statements.

In March 2016, the FASB issued ASU No. 2016-09, Improvements to Employee Share-Based Payment Accounting , to simplify the accounting for the income tax effects from share-based compensation, the accounting for forfeitures and the accounting for statutory income tax withholding, among others. In particular, the ASU requires all income tax effects from share-based compensation to be recognized in the consolidated statement of operations when the awards vest or are settled, the ASU permits accounting for forfeitures as they occur, and the ASU permits a higher level of statutory income tax withholding without triggering liability

12


 

accounting. Adoption of the ASU is modified retrospectiv e, retrospective and prospective, depending on the specific provision being adopted. We adopted the ASU on January 1, 2017. Our gross U.S. deferred tax assets increased by $909.1 million as a result of our adoption, which was fully offset by a correspondin g increase to our valuation allowance. In addition, we now account for forfeitures as they occur.

In August 2016, the FASB issued ASU No. 2016-15, Classification of Certain Cash Receipts and Cash Payments , to reduce the diversity in practice with respect to the classification of certain cash receipts and cash payments on the statement of cash flows. The ASU is effective for interim and annual periods beginning after December 15, 2017, with early adoption permitted. Adoption of the ASU is retrospective. We are currently obtaining an understanding of the ASU but plan to adopt the ASU on January 1, 2018, which will impact the classifications within the consolidated statements of cash flows.

In October 2016, the FASB issued ASU No. 2016-16, Intra-Entity Transfers of Assets Other Than Inventory , to require the recognition of the income tax effects from an intra-entity transfer of an asset other than inventory. The ASU is effective for interim and annual periods beginning after December 15, 2017, with early adoption permitted. Adoption of the ASU is modified retrospective. We early adopted the ASU on January 1, 2017. Our adoption did not have a material impact on our consolidated financial statements.

In November 2016, the FASB issued ASU No.   2016-18, Statement of Cash Flows: Restricted Cash , which requires entities to present the aggregate changes in cash, cash equivalents, restricted cash and restricted cash equivalents in the statement of cash flows. As a result, the statement of cash flows will be required to present restricted cash and restricted cash equivalents as a part of the beginning and ending balances of cash and cash equivalents. The ASU is effective for interim and annual periods beginning after December 15, 2017, with early adoption permitted. Adoption of the ASU is retrospective. We plan to adopt the ASU on January 1, 2018, which will impact the classifications within the consolidated statements of cash flows.

In January 2017, the FASB issued ASU No. 2017-01, Clarifying the Definition of a Business , to clarify the definition of a business with the objective of assisting entities with evaluating whether transactions should be accounted for as acquisitions (or disposals) of assets or businesses. The ASU is effective for interim and annual periods beginning after December 15, 2017, with early adoption permitted. Adoption of the ASU is prospective. We are currently obtaining an understanding of the ASU and plan to adopt the ASU on January 1, 2018.

In January 2017, the FASB issued ASU No. 2017-04, Simplifying the Test for Goodwill Impairment , to simplify the test for goodwill impairment by removing Step 2. An entity will, therefore, perform the goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount, recognizing an impairment charge for the amount by which the carrying amount exceeds the fair value, not to exceed the total amount of goodwill allocated to the reporting unit. An entity still has the option to perform a qualitative assessment to determine if the quantitative impairment test is necessary. The ASU is effective for interim and annual periods beginning after December 15, 2019, with early adoption permitted for interim or annual goodwill impairment tests performed on testing dates after January 1, 2017. Adoption of the ASU is prospective. We have not yet selected an adoption date, and the ASU will have a currently undetermined impact on the consolidated financial statements.

In May 2017, the FASB issued ASU No. 2017-09, Scope of Modification Accounting , to provide guidance on which changes to the terms or conditions of a share-based payment award require an entity to apply modification accounting. The ASU is effective for interim and annual periods beginning after December 15, 2017, with early adoption permitted. Adoption of the ASU is prospective. We are currently obtaining an understanding of the ASU and plan to adopt the ASU on January 1, 2018.

 

Note 3 – Business Combinations

Grohmann Acquisition

On January 3, 2017, we completed our acquisition of Grohmann Engineering GmbH (now Tesla Grohmann Automation GmbH or “Grohmann”), a company that specializes in the design, development and sale of automated manufacturing systems, for $109.5 million in cash. We acquired Grohmann to improve the speed and efficiency of our manufacturing processes.

At the time of acquisition, we entered into an incentive compensation arrangement for up to a maximum of $25.8 million of payments contingent upon continued service with us for 36 months after the acquisition date. Such payments would have been accounted for as compensation expense in the periods earned. However, during the three months ended March 31, 2017, we terminated the incentive compensation arrangement and accelerated the payments thereunder. As a result, we recorded the entire $25.8 million as compensation expense during the three months ended March 31, 2017, which was included in selling, general and administrative expense in our consolidated statements of operations.

Fair Value of Assets Acquired and Liabilities Assumed

We accounted for the Grohmann acquisition using the purchase method of accounting for business combinations under ASC 805, Business Combinations . The total purchase price is allocated to the tangible and identifiable intangible assets acquired and liabilities assumed based on their estimated fair values as of the acquisition date.

13


 

As we finalize our estimate of the fair value s of the identifiable intangible assets acquired and deferred taxes , additional purchase price adjustments may be recorded during the measurement period (a period not to exceed 12 months) , which may have a material impact on our results of operations and fi nancial position . Fair value estimates are based on a complex series of judgments about future events and uncertainties and rely heavily on estimates and assumptions. The judgments used to determine the estimated fair value assigned to each class of assets acquired and liabilities assumed, as well as asset lives and the expected future cash flows and related discount rates, can materiality impact our results of operations. Significant inputs used included the amount of cash flows, the expected period of the cash flows and the discount rates. There were no changes to the fair values of the assets acquired and the liabilities assumed dur ing the three months ended June  30, 2017.

The preliminary allocation of the purchase price is based on management’s estimate of the acquisition date fair values of the assets acquired and the liabilities assumed, as follows (in thousands):

 

Assets acquired:

 

 

 

Cash and cash equivalents

$

334

 

Accounts receivable

 

42,947

 

Inventory

 

10,031

 

Property, plant and equipment

 

44,030

 

Intangible assets

 

21,723

 

Prepaid expenses and other assets, current and non-current

 

1,998

 

Total assets acquired

 

121,063

 

Liabilities assumed:

 

 

 

Accounts payable

 

(19,975

)

Accrued liabilities

 

(12,403

)

Debt and capital leases, current and non-current

 

(9,220

)

Other long-term liabilities

 

(10,049

)

Total liabilities assumed

 

(51,647

)

Net assets acquired

 

69,416

 

Goodwill

 

40,065

 

Total purchase price

$

109,481

 

Goodwill represented the excess of the purchase price over the fair value of the net assets acquired and was primarily attributable to the expected synergies from potential monetization opportunities and from integrating Grohmann’s technology into our automotive business as well as the acquired talent. Goodwill is not deductible for U.S. income tax purposes and is not amortized. Rather, we assess goodwill for impairment annually in the fourth quarter, or more frequently if events or changes in circumstances indicate that it might be impaired, by comparing its carrying value to the reporting unit’s fair value.

Identifiable Intangible Assets Acquired

Our preliminary assessment of the fair values of the identified intangible assets and their respective useful lives are as follows (in thousands, except for useful lives):

 

  

June 30, 2017

 

 

Fair Value

 

 

Useful Life

(in years)

 

Developed technology

$

12,528

 

 

 

10

 

Software

 

3,341

 

 

 

3

 

Customer relations

 

3,236

 

 

 

6

 

Trade name

 

1,775

 

 

 

7

 

Other

 

843

 

 

 

2

 

Total intangible assets

$

21,723

 

 

 

 

 

Grohmann’s results of operations since the acquisition date have been included within the automotive segment in our consolidated statements of operations. Actual and pro forma results of operations have not been separately presented because they were not material.

SolarCity Acquisition

On November 21, 2016, we completed our acquisition of SolarCity for a total purchase price of $2.1 billion in stock . We are currently finalizing our estimates of the fair values of the solar energy systems, leased and to be leased, identifiable intangible assets,

14


 

deferred revenue, deferred taxes and noncontrolling interests assumed . Fair value adjustments recorded during the measurement period (a period not to exceed 12   months) may have a material impact on our consolidated financial statements. During the three months ended March 31, 2017, we recorded an $11.6   million measurement period adjustment to the acquisition date fair value s of certain assets as previously reported in our Form 10-K for the year ended December 31, 2016. The measurement period adjustment was recorded as a loss to other income (expense), net, in our consolidated statement of operations, to effectivel y reduce the gain on acquisition initially recognized during the period ended December 31, 2016.

 

 

Note 4 – Goodwill and Intangible Assets

Goodwill increased to $43.8 million from December 31, 2016 to June 30, 2017 due to our acquisition of Grohmann and the impact of foreign currency translation adjustments.

Information regarding our acquired intangible assets was as follows (in thousands):

 

 

 

June 30, 2017

 

 

December 31, 2016

 

 

 

Gross   Carrying

Amount

 

 

Accumulated

Amortization

 

 

Other

 

 

Net Carrying

Amount

 

 

Gross Carrying Amount

 

 

Accumulated Amortization

 

 

Net Carrying Amount

 

Finite-lived intangible assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Developed technology

 

$

125,889

 

 

$

(10,384

)

 

$

1,180

 

 

$

116,685

 

 

$

113,361

 

 

$

(1,740

)

 

$

111,621

 

Trade name

 

 

45,275

 

 

 

(5,455

)

 

 

167

 

 

 

39,987

 

 

 

43,500

 

 

 

(967

)

 

 

42,533

 

Favorable contracts and leases, net

 

 

112,817

 

 

 

(4,751

)

 

 

690

 

 

 

108,756

 

 

 

112,817

 

 

 

(864

)

 

 

111,953

 

Other

 

 

34,099

 

 

 

(5,532

)

 

 

20

 

 

 

28,587

 

 

 

26,679

 

 

 

(3,473

)

 

 

23,206

 

Total finite-lived intangible assets

 

 

318,080

 

 

 

(26,122

)

 

 

2,057

 

 

 

294,015

 

 

 

296,357

 

 

 

(7,044

)

 

 

289,313

 

Indefinite-lived intangible assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IPR&D

 

 

86,832

 

 

 

 

 

 

 

 

 

86,832

 

 

 

86,832

 

 

 

 

 

 

86,832

 

Total indefinite-lived intangible assets

 

 

86,832

 

 

 

 

 

 

 

 

 

86,832

 

 

 

86,832

 

 

 

 

 

 

86,832

 

Total intangible assets

 

$

404,912

 

 

$

(26,122

)

 

$

2,057

 

 

$

380,847

 

 

$

383,189

 

 

$

(7,044

)

 

$

376,145

 

The in-process research and development (“IPR&D”), which we acquired from SolarCity, is accounted for as an indefinite-lived asset until the completion or abandonment of the associated research and development efforts. If the research and development efforts are successfully completed and commercial feasibility is reached, the IPR&D would be amortized over its then estimated useful life. If the research and development efforts are not completed or are abandoned, the IPR&D might be impaired. The fair value of the IPR&D was estimated using the replacement cost method under the cost approach, based on the historical acquisition costs and expenses of the technology adjusted for estimated developer’s profit, opportunity cost and obsolescence factor. We expect to complete the research and development efforts in the second half of 2017, but there can be no assurance that the commercial feasibility will be achieved. The nature of the research and development efforts consists principally of planning, designing and testing the technology for viability in manufacturing. If commercial feasibility is not achieved, we would likely look to other alternative technologies.

Total future amortization expense for intangible assets was estimated as follows (in thousands):

 

  

 

June 30, 2017

 

Six months ending December 31, 2017

 

$

19,079

 

2018

 

 

37,788

 

2019

 

 

37,788

 

2020

 

 

35,884

 

2021

 

 

34,918

 

Thereafter

 

 

128,558

 

Total

 

$

294,015

 

 

15


 

Note 5 – Fair Value of Financial Instruments

ASC 820 , Fair Value Measurements , states that fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based on assumptions that market participants would use in pricing an asset or a liability . The three-tiered fair value hierarchy, which prioritizes which inputs should be used in measuring fair value, is comprised of: (Level I) observable inputs such as quoted prices in active markets; (Level II) inputs other than quoted prices in active markets that are observable either directly or indirectly and (Level III) unobservable inputs for which there is little or no market data. The fair value hierarchy requires the use of observable market data when available in determining fair value. Our assets and liabilities that were measured at fair value on a recurring basis were as follows (in thousands):

 

 

 

June 30, 2017

 

 

December 31, 2016

 

 

 

Fair Value

 

 

Level I

 

 

Level II

 

 

Level III

 

 

Fair Value

 

 

Level I

 

 

Level II

 

 

Level III

 

Money market funds

 

$

2,170,733

 

 

$

2,170,733

 

 

$

 

 

$

 

 

$

2,226,322

 

 

$

2,226,322

 

 

$

 

 

$

 

Interest rate swaps

 

 

(5,746

)

 

 

 

 

 

(5,746

)

 

 

 

 

 

1,490

 

 

 

 

 

 

1,490

 

 

 

 

Total

 

$

2,164,987

 

 

$

2,170,733

 

 

$

(5,746

)

 

$

 

 

$

2,227,812

 

 

$

2,226,322

 

 

$

1,490

 

 

$

 

All of our cash equivalents were classified within Level I of the fair value hierarchy because they were valued using quoted prices in active markets. Our interest rate swaps were classified within Level II of the fair value hierarchy because they were valued using alternative pricing sources or models that utilized market observable inputs, including current and forward interest rates. During the six months ended June 30, 2017, there were no transfers between the levels of the fair value hierarchy.

Interest Rate Swaps

We enter into fixed-for-floating interest rate swap agreements to swap variable interest payments on certain debt for fixed interest payments, as required by certain of our lenders. We do not designate our interest rate swaps as hedging instruments. Accordingly, our interest rate swaps are recorded at fair value on the consolidated balance sheets within other assets or other long-term liabilities, with any changes in their fair values recognized as other income (expense), net, in the consolidated statements of operations and with any cash flows recognized as investing activities in the consolidated statements of cash flows. Our interest rate swaps outstanding were as follows as of June 30, 2017 (in thousands):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross Gains

 

 

Gross Losses

 

 

 

Aggregate Notional Amount

 

 

Gross Asset at Fair Value

 

 

Gross Liability at Fair Value

 

 

Three Months Ended June 30, 2017

 

 

Six Months Ended June 30, 2017

 

 

Three Months Ended June 30, 2017

 

 

Six Months Ended June 30, 2017

 

Interest rate swaps

 

$

659,929

 

 

$

5,582

 

 

$

11,328

 

 

$

1,861

 

 

$

2,549

 

 

$

9,945

 

 

$

11,195

 

Disclosure of Fair Values

Our financial instruments that are not re-measured at fair value include accounts receivable, MyPower customer notes receivable, rebates receivable, accounts payable, accrued liabilities, customer deposits, convertible senior notes, the participation interest, solar asset-backed notes, solar loan-backed notes, Solar Bonds and long-term debt. The carrying values of these financial instruments other than convertible senior notes, the participation interest, solar asset-backed notes and solar loan-backed notes approximated their fair values.

We estimate the fair value of convertible senior notes using commonly accepted valuation methodologies and market-based risk measurements that are indirectly observable, such as credit risk (Level II) . In addition, we estimate the fair value of the participation interest, solar asset-backed notes and solar loan-backed notes based on rates currently offered for instruments with similar maturities and terms (Level III). The following table presents the estimated fair values and the carrying values (in thousands):

 

  

 

June 30, 2017

 

 

December 31, 2016

 

 

 

Carrying   Value

 

 

Fair Value

 

 

Carrying   Value

 

 

Fair Value

 

Convertible senior notes

 

$

3,690,821

 

 

$

4,928,411

 

 

$

2,957,288

 

 

$

3,205,641

 

Participation interest

 

$

17,339

 

 

$

16,564

 

 

$

16,713

 

 

$

15,025

 

Solar asset-backed notes

 

$

433,093

 

 

$

438,262

 

 

$

442,764

 

 

$

428,551

 

Solar loan-backed notes

 

$

268,176

 

 

$

280,003

 

 

$

137,024

 

 

$

132,129

 

 

16


 

Note 6 – Inventory

Our inventory consisted of the following (in thousands):

 

  

 

June 30,

 

 

December 31,

 

 

 

2017

 

 

2016

 

Raw materials

 

$

558,109

 

 

$

680,339

 

Work in process

 

 

266,320

 

 

 

233,746

 

Finished goods

 

 

1,470,359

 

 

 

1,016,731

 

Service parts

 

 

143,323

 

 

 

136,638

 

Total

 

$

2,438,111

 

 

$

2,067,454

 

Finished goods inventory included vehicles in transit to fulfill customer orders, new vehicles available for immediate sale at our retail and service center locations, pre-owned Tesla vehicles and energy storage products.

For solar energy systems, leased and to be leased, we commence transferring component parts from inventory to construction in progress, a component of solar energy systems, leased and to be leased, once a lease contract with a customer has been executed and installation has been initiated. Additional costs incurred on the leased systems, including labor and overhead, are recorded within construction in progress.

We write-down inventory for any excess or obsolete inventories or when we believe that the net realizable value of inventories is less than the carrying value. During the three and six months ended June 30, 2017, we recorded write-downs of $45.8 million and $66.8 million, respectively, in cost of revenues.

 

Note 7 – Solar Energy Systems, Leased and To Be Leased, Net

Solar energy systems, leased and to be leased, net, consisted of the following (in thousands):

 

  

 

June 30,

 

 

December 31,

 

 

 

2017

 

 

2016

 

Solar energy systems leased to customers

 

$

5,602,824

 

 

$

5,052,976

 

Initial direct costs related to customer solar energy

   system lease acquisition costs

 

 

53,688

 

 

 

12,774

 

 

 

 

5,656,512

 

 

 

5,065,750

 

Less: accumulated depreciation and amortization

 

 

(116,136

)

 

 

(20,157

)

 

 

 

5,540,376

 

 

 

5,045,593

 

Solar energy systems under construction

 

 

252,301

 

 

 

460,913

 

Solar energy systems to be leased to customers

 

 

425,827

 

 

 

413,374

 

Solar energy systems, leased and to be leased – net (1)(2)

 

$

6,218,504

 

 

$

5,919,880

 

 

(1)

Included in solar energy systems, leased and to be leased, as of June 30, 2017 and December 31, 2016 was $36.0 million and $36.0 million, respectively, related to capital leased assets with an accumulated depreciation and amortization of $1.0 million and $0.2 million, respectively.

(2)

Included in solar energy systems, leased and to be leased, as of June 30, 2017 and December 31, 2016 was $31.8 million and $21.3 million related to energy storage systems with an accumulated depreciation and amortization of $0.4 million and $0.1 million, respectively.

 

17


 

Note 8 – Property, Plant and Equipment

Our property, plant and equipment, net, consisted of the following (in thousands):

 

  

 

June 30,

 

 

December 31,

 

 

 

2017

 

 

2016

 

Machinery, equipment, vehicles and office furniture

 

$

2,552,076

 

 

$

2,154,367

 

Tooling

 

 

845,444

 

 

 

794,793

 

Leasehold improvements

 

 

669,416

 

 

 

505,295

 

Land and buildings

 

 

1,390,622

 

 

 

1,079,452

 

Computer equipment, hardware and software

 

 

335,857

 

 

 

275,655

 

Construction in progress

 

 

3,919,423

 

 

 

2,147,332

 

Other

 

 

23,802

 

 

 

23,548

 

 

 

 

9,736,640

 

 

 

6,980,442

 

Less: Accumulated depreciation and amortization

 

 

(1,337,411

)

 

 

(997,485

)

Total

 

$

8,399,229

 

 

$

5,982,957

 

Construction in progress is primarily comprised of tooling and equipment related to the manufacturing of our vehicles and a portion of Gigafactory 1 construction. In addition, construction in progress also included certain build-to-suit lease costs incurred at our Buffalo manufacturing facility, referred to as Gigafactory 2. Completed assets are transferred to their respective asset classes, and depreciation begins when an asset is ready for its intended use. Interest on outstanding debt is capitalized during periods of significant capital asset construction and amortized over the useful lives of the related assets. During the three and six months ended June 30, 2017, we capitalized $35.4 million and $58.7 million, respectively, of interest. During the three and six months ended June 30, 2016, we capitalized $9.9 million and $19.0 million, respectively, of interest.

As of June 30, 2017 and December 31, 2016, the table above included $1.48 billion and $1.32 billion, respectively, of build-to-suit lease assets. As of June 30, 2017 and December 31, 2016, the corresponding financing liabilities of $12.0 million and $3.8 million, respectively, were recorded in accrued liabilities and $1.51 billion and $1.32 billion, respectively, were recorded in other long-term liabilities.

Depreciation and amortization expense during the three and six months ended June 30, 2017 was $176.6 million and $336.7 million, respectively. Depreciation and amortization expense during the three and six months ended June 30, 2016 was $111.9 million and $211.1 million. Gross property and equipment under capital leases as of June 30, 2017 and December 31, 2016 was $415.7 million and $112.6 million, respectively. Accumulated depreciation on property and equipment under capital leases as of these dates was $65.6 million and $40.2 million, respectively.

We had cumulatively incurred and capitalized costs of $1.98 billion and $825.3 million, respectively, for Gigafactory 1 as of June 30, 2017 and December 31, 2016.

 

Note 9 – Other Long-Term Liabilities

Other long-term liabilities consisted of the following (in thousands):

 

 

 

June 30, 2017

 

 

December 31, 2016

 

Accrued warranty reserve, net of current portion

 

$

229,349

 

 

$

149,858

 

Build-to-suit lease liability, net of current portion

 

 

1,511,692

 

 

 

1,323,293

 

Deferred rent expense

 

 

37,620

 

 

 

36,966

 

Financing obligation, net of current portion

 

 

90,087

 

 

 

84,360

 

Liability for receipts from an investor

 

 

62,383

 

 

 

76,828

 

Other noncurrent liabilities

 

 

328,407

 

 

 

220,144

 

Total long-term liabilities

 

$

2,259,538

 

 

$

1,891,449

 

The liability for receipts from an investor represents the amounts received from the investor under a lease pass-through fund arrangement for the monetization of investment tax credits (“ITCs”) for solar energy systems not yet placed in service. This balance is reclassified to deferred revenue when the solar energy systems are placed in service.

 

Note 10 – Customer Deposits

Customer deposits primarily consisted of cash payments from customers at the time they place an order or reservation for a vehicle or an energy product and any additional payments up to the point of delivery or the completion of installation, including the

18


 

fair values of any customer trade-in vehicles that are applicable toward a new vehicle purchase. Customer deposit amounts and tim ing vary depending on the vehicle model , the energy product and the country of delivery. Customer deposits are fully refundable in the case of a vehicle up to the point the vehicle is placed into the production cycle , and , in the case of solar or energy st orage products , prior to the entry into a purchase agreement or in certain cases for a limited time thereafter, in accordance with applicable laws . Customer deposits are included in current liabilities until refunded or until they are applied to wards the c ustomer’s purchase balance. As of June 30 , 2017 and December 31, 2016, we held $603.5  million and $ 663.9   million, respectively, in customer deposits.

 

Note 11 – Convertible and Long-Term Debt Obligations

The following is a summary of our debt as of June 30, 2017 (in thousands):

 

 

 

Unpaid

 

 

 

 

 

Unused

 

 

 

 

 

 

 

Principal

 

 

Net Carrying Value

 

 

Committed

 

 

Contractual

 

 

 

 

Balance

 

 

Current

 

 

Long-Term

 

 

Amount

 

 

Interest   Rate

 

Maturity Date

Recourse debt:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.5% Convertible Senior Notes due in 2018

   ("2018 Notes")

 

$

60,170

 

 

$

58,482

 

 

$

 

 

$

 

 

1.5%

 

June 2018

0.25% Convertible Senior Notes due in 2019

   ("2019 Notes")

 

 

920,000

 

 

 

 

 

 

847,935

 

 

 

 

 

0.25%

 

March 2019

1.25% Convertible Senior Notes due in 2021

   ("2021 Notes")

 

 

1,380,000

 

 

 

 

 

 

1,158,463

 

 

 

 

 

1.25%

 

March 2021

2.375% Convertible Senior Notes due in 2022

   ("2022 Notes")

 

 

977,500

 

 

 

 

 

 

827,796

 

 

 

 

 

2.375%

 

March 2022

Credit Agreement

 

 

856,500

 

 

 

 

 

 

856,500

 

 

 

910,808

 

 

1% plus LIBOR

 

June 2020

Secured Revolving Credit Facility

 

 

359,000

 

 

 

359,768

 

 

 

 

 

 

2,838

 

 

4.5%-6.5%

 

December 2017

Vehicle and Other Loans

 

 

23,729

 

 

 

19,625

 

 

 

4,104

 

 

 

 

 

1.8%-7.6%

 

April 2017 -

September 2019

2.75% Convertible Senior Notes due in 2018

 

 

230,000

 

 

 

 

 

 

217,037

 

 

 

 

 

2.75%

 

November 2018

1.625% Convertible Senior Notes due in 2019

 

 

566,000

 

 

 

 

 

 

497,199

 

 

 

 

 

1.625%

 

November 2019

Zero-coupon Convertible Senior Notes due in 2020

 

 

103,000

 

 

 

 

 

 

83,909

 

 

 

 

 

0.0%

 

December 2020

Related Party Promissory Notes due in February 2018

 

 

100,000

 

 

 

100,000

 

 

 

 

 

 

 

 

6.5%

 

February 2018

Solar Bonds

 

 

32,042

 

 

 

5,492

 

 

 

26,089

 

 

 

 

 

2.6%-5.8%

 

March 2018 - January 2031

Total recourse debt

 

 

5,607,941

 

 

 

543,367

 

 

 

4,519,032

 

 

 

913,646

 

 

 

 

 

Non-recourse debt:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Warehouse Agreement

 

 

478,694

 

 

 

137,069

 

 

 

341,625

 

 

 

121,306

 

 

2.6%-2.9%

 

September 2018

Canada Credit Facility

 

 

58,210

 

 

 

20,031

 

 

 

38,179

 

 

 

 

 

3.6%-4.5%

 

December 2020

Term Loan due in December 2018

 

 

140,186

 

 

 

 

 

 

139,750

 

 

 

6,870

 

 

4.4%

 

December 2018

Term Loan due in January 2021

 

 

180,734

 

 

 

5,615

 

 

 

173,901

 

 

 

 

 

4.5%-4.7%

 

January 2021

Revolving Aggregation Credit Facility

 

 

370,804

 

 

 

 

 

 

368,322

 

 

 

229,196

 

 

3.9%-4.2%

 

December 2019

Solar Renewable Energy Credit Loan Facility

 

 

52,571

 

 

 

17,247

 

 

 

35,558

 

 

 

 

 

6.8%

 

July 2021

Cash Equity Debt I

 

 

118,164

 

 

 

3,328

 

 

 

113,851

 

 

 

 

 

5.7%

 

July 2033

Cash Equity Debt II

 

 

205,130

 

 

 

5,451

 

 

 

187,865

 

 

 

 

 

5.3%

 

July 2034

Cash Equity Debt III

 

 

167,442

 

 

 

3,687

 

 

 

160,700

 

 

 

 

 

5.8%

 

January 2035

Solar Asset-backed Notes, Series 2013-1

 

 

40,146

 

 

 

3,190

 

 

 

36,724

 

 

 

 

 

4.8%

 

November 2038

Solar Asset-backed Notes, Series 2014-1

 

 

58,854

 

 

 

3,055

 

 

 

55,446

 

 

 

 

 

4.6%

 

April 2044

Solar Asset-backed Notes, Series 2014-2

 

 

183,154

 

 

 

7,240

 

 

 

169,854

 

 

 

 

 

4.0%-Class A

5.4%-Class B

 

July 2044

Solar Asset-backed Notes, Series 2015-1

 

 

117,333

 

 

 

2,127

 

 

 

107,885

 

 

 

 

 

4.2%-Class A

5.6%-Class B

 

August 2045

Solar Asset-backed Notes, Series 2016-1

 

 

49,440

 

 

 

1,829

 

 

 

45,743

 

 

 

 

 

5.3%

 

September 2046

Solar Loan-backed Notes, Series 2016-A

 

 

131,066

 

 

 

3,992

 

 

 

123,661

 

 

 

 

 

4.8%-Class A

6.9%-Class B

 

September 2048

Solar Loan-backed Notes, Series 2017-A

 

 

145,000

 

 

 

3,056

 

 

 

137,467

 

 

 

 

 

5.0%-Class A

6.1%-Class B

7.5%-Class C

 

September 2049

Total non-recourse debt

 

 

2,496,928

 

 

 

216,917

 

 

 

2,236,531

 

 

 

357,372

 

 

 

 

 

Total debt

 

$

8,104,869

 

 

$

760,284

 

 

$

6,755,563

 

 

$

1,271,018

 

 

 

 

 

 

19


 

The following is a summary of our debt as of December 31, 2016 (in thousands):

 

 

 

Unpaid

 

 

 

 

 

Unused

 

 

 

 

 

 

 

 

 

Principal

 

 

Net Carrying Value

 

 

Committed

 

 

Contractual

 

 

 

 

 

Balance

 

 

Current

 

 

Long-Term

 

 

Amount

 

 

Interest   Rate

 

 

Maturity Date

Recourse debt:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2018 Notes

 

$

205,013

 

 

$

196,229

 

 

$

 

 

$

 

 

 

1.5%

 

 

June 2018

2019 Notes

 

 

920,000

 

 

 

 

 

 

827,620

 

 

 

 

 

 

0.25%

 

 

March 2019

2021 Notes

 

 

1,380,000

 

 

 

 

 

 

1,132,029

 

 

 

 

 

 

1.25%

 

 

March 2021

Credit Agreement

 

 

969,000

 

 

 

 

 

 

969,000

 

 

 

181,000

 

 

1% plus LIBOR

 

 

June 2020

Secured Revolving Credit Facility

 

 

364,000

 

 

 

366,247

 

 

 

 

 

 

24,305

 

 

4.0%-6.0%

 

 

January 2017 -

December 2017

Vehicle and Other Loans

 

 

23,771

 

 

 

17,235

 

 

 

6,536

 

 

 

 

 

2.9%-7.6%

 

 

March 2017 -

June 2019

2.75% Convertible Senior Notes due in 2018

 

 

230,000

 

 

 

 

 

 

212,223

 

 

 

 

 

2.75%

 

 

November 2018

1.625% Convertible Senior Notes due in 2019

 

 

566,000

 

 

 

 

 

 

483,820

 

 

 

 

 

1.625%

 

 

November 2019

Zero-coupon Convertible Senior Notes due in 2020

 

 

113,000

 

 

 

 

 

 

89,418

 

 

 

 

 

0.0%

 

 

December 2020

Solar Bonds

 

 

332,060

 

 

 

181,582

 

 

 

148,948

 

 

#

 

 

1.1%-6.5%

 

 

January 2017 -

January 2031

Total recourse debt

 

 

5,102,844

 

 

 

761,293

 

 

 

3,869,594

 

 

 

205,305

 

 

 

 

 

 

 

Non-recourse debt:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Warehouse Agreement

 

 

390,000

 

 

 

73,708

 

 

 

316,292

 

 

 

210,000

 

 

Various

 

 

September 2018

Canada Credit Facility

 

 

67,342

 

 

 

18,489

 

 

 

48,853

 

 

 

 

 

3.6%- 4.5%

 

 

December 2020

Term Loan due in December 2017

 

 

75,467

 

 

 

75,715

 

 

 

 

 

 

52,173

 

 

4.2%

 

 

December 2017

Term Loan due in January 2021

 

 

183,388

 

 

 

5,860

 

 

 

176,169

 

 

 

 

 

4.5%

 

 

January 2021

MyPower Revolving Credit Facility

 

 

133,762

 

 

 

133,827

 

 

 

 

 

 

56,238

 

 

4.1%-6.6%

 

 

January 2017

Revolving Aggregation Credit Facility

 

 

424,757

 

 

 

 

 

 

427,944

 

 

 

335,243

 

 

4.0%-4.8%

 

 

December 2018

Solar Renewable Energy Credit Term Loan

 

 

38,124

 

 

 

12,491

 

 

 

26,262

 

 

 

 

 

6.6%-9.9%

 

 

April 2017 -

July 2021

Cash Equity Debt I

 

 

119,753

 

 

 

3,272

 

 

 

115,464

 

 

 

 

 

5.7%

 

 

July 2033

Cash Equity Debt II

 

 

206,901

 

 

 

5,376

 

 

 

189,424

 

 

 

 

 

5.3%

 

 

July 2034

Cash Equity Debt III

 

 

170,000

 

 

 

4,994

 

 

 

161,853

 

 

 

 

 

 

5.8%

 

 

January 2035

Solar Asset-backed Notes, Series 2013-1

 

 

41,899

 

 

 

3,329

 

 

 

38,346

 

 

 

 

 

4.8%

 

 

November 2038

Solar Asset-backed Notes, Series 2014-1

 

 

60,768

 

 

 

3,016

 

 

 

57,417

 

 

 

 

 

4.6%

 

 

April 2044

Solar Asset-backed Notes, Series 2014-2

 

 

186,851

 

 

 

7,055

 

 

 

173,625

 

 

 

 

 

4.0%-Class A

5.4%-Class B

 

 

July 2044

Solar Asset-backed Notes, Series 2015-1

 

 

119,199

 

 

 

1,511

 

 

 

110,238

 

 

 

 

 

4.2%-Class A

5.6%-Class B

 

 

August 2045

Solar Asset-backed Notes, Series 2016-1

 

 

50,119

 

 

 

1,202

 

 

 

47,025

 

 

 

 

 

5.3%-Class A

7.5%-Class B

 

 

September 2046

Solar Loan-backed Notes, Series 2016-A

 

 

140,586

 

 

 

3,514

 

 

 

133,510

 

 

 

 

 

4.8%-Class A

6.9%-Class B

 

 

September 2048

Total non-recourse debt

 

 

2,408,916

 

 

 

353,359

 

 

 

2,022,422

 

 

 

653,654

 

 

 

 

 

 

 

Total debt

 

$

7,511,760

 

 

$

1,114,652

 

 

$

5,892,016

 

 

$

858,959

 

 

 

 

 

 

 

#

Out of the $350.0 million authorized to be issued, $17.9 million remained available to be issued.

Recourse debt refers to debt that is recourse to our general assets. Non-recourse debt refers to debt that is recourse to only specified assets of our subsidiaries. The differences between the unpaid principal balances and the net carrying values are due to convertible senior note conversion features, debt discounts and deferred financing costs. As of June 30, 2017, we were in compliance with all financial debt covenants. The following descriptions summarize the significant debt activity in the six months ended June 30, 2017.

2018 Notes

In June 2017, $144.8 million in aggregate principal amount of the 2018 Notes were exchanged for approximately 1.16 million shares of our common stock (see Note 12, Common Stock ). As a result, we recognized a loss on debt extinguishment of $1.1 million.

2.375% Convertible Senior Notes due in 2022, Bond Hedges and Warrant Transactions

In March 2017, we issued $977.5 million in aggregate principal amount of 2.375% convertible senior notes due in March 2022 (“2022 Notes”) in a public offering. The net proceeds from the issuance, after deducting transaction costs, were $965.9 million.

Each $1,000 of principal of the 2022 Notes is initially convertible into 3.0534 shares of our common stock, which is equivalent to an initial conversion price of approximately $327.50 per share, subject to adjustment upon the occurrence of specified events. Holders of the 2022 Notes may convert, at their option, on or after December 15, 2021. Further, holders of the 2022 Notes may convert such 2022 Notes, at their option, prior to December 15, 2021, only under the following circumstances: (1) during any quarter beginning after June 30, 2017, if the closing price of our common stock for at least 20 trading days (whether or not consecutive) during the last 30 consecutive trading days immediately preceding the quarter is greater than or equal to 130% of the conversion price; (2) during the five-business day period following any five-consecutive trading day period in which the trading price of the 2022 Notes is less than 98% of the average of the closing price of our common stock for each day during such five-consecutive trading day period;

20


 

or (3) if we make specified distributions to holders of our common stock or if specified corporate trans actions occur. Upon a conversion, we would pay cash for the principal amount and, if applicable, deliver shares of our common stock (subject to our right to deliver cash in lieu of all or a portion of such shares of our common stock) based on a daily conve rsion value. If a fundamental change occurs prior to the maturity date, holders of the 2022 Notes may require us to repurchase all or a portion of their 2022 Notes for cash at a repurchase price equal to 100% of the principal amount plus any accrued and un paid interest. In addition, if specific corporate events occur prior to the maturity date, we would increase the conversion rate for a holder who elects to convert their 2022 Notes in connection with such an event in certain circumstances. As of June 30, 2 017, none of the conditions permitting the holders of the 2022 Notes to early convert had been met. Therefore, the 2022 Notes are classified as long-term debt.

In accordance with GAAP relating to embedded conversion features, we initially valued and bifurcated the conversion feature associated with the 2022 Notes. We recorded to stockholders’ equity $145.6 million for the conversion feature. The resulting debt discount is being amortized to interest expense at an effective interest rate of 6.00%.

In connection with the offering of the 2022 Notes, we entered into convertible note hedge transactions whereby we have the option to purchase initially (subject to adjustment for certain specified events) a total of 3.0 million shares of our common stock at a price of $327.50 per share. The cost of the convertible note hedge transactions was $204.1 million. In addition, we sold warrants whereby the holders of the warrants have the option to purchase initially (subject to certain specified events) a total of 3.0 million shares of our common stock at a price of $655.00 per share. We received $52.9 million in cash proceeds from the sale of these warrants. Taken together, the purchase of the convertible note hedges and the sale of warrants are intended to reduce potential dilution from the conversion of the 2022 Notes and to effectively increase the overall conversion price from $327.50 to $655.00 per share. As these transactions meet certain accounting criteria, the convertible note hedges and warrants are recorded in stockholders’ equity and are not accounted for as derivatives. The net cost incurred in connection with the convertible note hedge and warrant transactions was recorded as a reduction to additional paid-in capital on our consolidated balance sheet.

Zero-coupon Convertible Senior Notes due in 2020

On April 26, 2017, our Chief Executive Officer converted all of his zero-coupon convertible senior notes due in 2020, which had an aggregate principal amount of $10.0 million (see Note 12, Common Stock ). As a result, we recognized a loss on debt extinguishment of $2.2 million.

Related Party Promissory Notes due in February 2018

On April 11, 2017, our Chief Executive Officer, SolarCity’s former Chief Executive Officer and SolarCity’s former Chief Technology Officer exchanged their $100.0 million (collectively) in aggregate principal amount of 6.50% Solar Bonds due in February 2018 for promissory notes in the same amounts and with substantially the same terms.

Solar Bonds

Solar Bonds are senior unsecured obligations that are structurally subordinate to the indebtedness and other liabilities of our subsidiaries. Solar Bonds were issued under multiple series between October 2014 and August 2016 with various terms and interest rates. In April 2017, we fully extinguished certain series of Solar Bonds by prepaying $20.9 million of principal and interest. See Note 16, Related Party Transactions , for Solar Bonds issued to related parties.

Term Loan due in December 2018

On March 31, 2016, a subsidiary of SolarCity entered into an agreement for a term loan. The term loan bears interest at an annual rate of the lender’s cost of funds plus 3.25%. The fee for undrawn commitments is 0.85% per annum. On March 31, 2017, the agreement was amended to extend the availability period and the maturity date. The term loan is secured by substantially all of the assets of the subsidiary and is non-recourse to our other assets.

MyPower Revolving Credit Facility

In January 2017, the MyPower revolving credit facility matured, and the aggregate outstanding principal amount was fully repaid.

Revolving Aggregation Credit Facility

On May 4, 2015, a subsidiary of SolarCity entered into an agreement with a syndicate of banks for a revolving aggregation credit facility. On March 23, 2016 and June 23, 2017, the agreement was amended to modify the interest rates and extend the availability period and the maturity date. The revolving aggregation credit facility bears interest at an annual rate of 2.75% plus (i) for commercial paper loans, the commercial paper rate and (ii) for LIBOR loans, at our option, three-month LIBOR or daily LIBOR. The

21


 

revolving aggregation credit facility is secured by certain assets of certain subsidiaries of SolarCity and is non-recourse to our other assets.

Solar Renewable Energy Credit Loan Facilities

On March 31, 2016, a subsidiary of SolarCity entered into an agreement for a term loan. The term loan bore interest at an annual rate of one-month LIBOR plus 9.00% or, at our option, 8.00% plus the highest of (i) the Federal Funds Rate plus 0.50%, (ii) the prime rate or (iii) one-month LIBOR plus 1.00%. The term loan was secured by substantially all of the assets of the subsidiary, including its rights under forward contracts to sell solar renewable energy credits, and was non-recourse to our other assets. On March 1, 2017, we fully repaid the principal outstanding under the term loan.

On July 14, 2016, the same subsidiary entered into an agreement for another loan facility. The loan facility bears interest at an annual rate of one-month LIBOR plus 5.75% or, at our option, 4.75% plus the highest of (i) the Federal Funds Rate plus 0.50%, (ii) the prime rate or (iii) one-month LIBOR plus 1.00%. The loan facility is secured by substantially all of the assets of the subsidiary, including its rights under forward contracts to sell solar renewable energy credits, and is non-recourse to our other assets.

Solar Loan-backed Notes, Series 2017-A

On January 27, 2017, we pooled and transferred certain MyPower customer notes receivable into a special purpose entity (“SPE”) and issued $123.0 million in aggregate principal amount of Solar Loan-backed Notes, Series 2017-A, Class A; $8.8 million in aggregate principal amount of Solar Loan-backed Notes, Series 2017-A, Class B; and $13.2 million in aggregate principal amount of Solar Loan-backed Notes, Series 2017-A, Class C; backed by these notes receivable to investors. The SPE is wholly owned by us and is consolidated in our financial statements. Accordingly, we did not recognize a gain or loss on the transfer of these notes receivable. The Solar Loan-backed Notes were issued at a discount of 1.87% for Class A, 1.86% for Class B and 8.13% for Class C. The payments received by the SPE from these notes receivable are used to service the semi-annual principal and interest payments on the Solar Loan-backed Notes and satisfy the SPE’s expenses, and any remaining cash is distributed to one of our wholly owned subsidiaries. The SPE’s assets and cash flows are not available to our other creditors, and the creditors of the SPE, including the Solar Loan-backed Note holders, have no recourse to our other assets.

Interest Expense

The following table presents the interest expense related to the contractual interest coupon, the amortization of debt issuance costs and the amortization of debt discounts on convertible senior notes with cash conversion features, which includes the 2018 Notes, the 2019 Notes, the 2021 Notes and the 2022 Notes (in thousands):

 

  

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Contractual interest coupon

 

$

11,256

 

 

$

8,324

 

 

$

17,407

 

 

$

16,715

 

Amortization of debt issuance costs

 

 

2,207

 

 

 

1,985

 

 

 

3,515

 

 

 

3,883

 

Amortization of debt discounts

 

 

30,002

 

 

 

25,642

 

 

 

53,964

 

 

 

50,833

 

Total

 

$

43,465

 

 

$

35,951

 

 

$

74,886

 

 

$

71,431

 

 

Note 12 – Common Stock

In March 2017, we completed a public offering of our common stock and issued a total of 1,536,259 shares for total cash proceeds of $399.6 million (including 95,420 shares purchased by our Chief Executive Officer for $25.0 million), net of underwriting discounts and offering costs.

On April 18, 2017, our Chief Executive Officer exercised his right under the indenture to convert all of his zero-coupon convertible senior notes due in 2020, which had an aggregate principal amount of $10.0 million. As a result, on April 26, 2017, we issued 33,333 shares of our common stock to our Chief Executive Officer in accordance with the specified conversion rate, and we recorded an increase to additional paid-in capital of $10.3 million (see Note 11, Convertible and Long-Term Debt Obligations ).

In June 2017, we issued 1,163,442 shares of our common stock pursuant to exchange agreements entered into with holders of $144.8 million in aggregate principal amount of the 2018 Notes (see Note 11, Convertible and Long-Term Debt Obligations ). As a result, we recorded an increase to additional paid-in capital of $141.8 million. In addition, we amended and settled early the associated portions of the bond hedges and warrants entered into in connection with the 2018 Notes, resulting in a net payment to us of $43.6 million in cash, which was recorded as an increase to additional paid-in capital.

 

22


 

Note 13 – Equity Incen tive Plans

In 2010, we adopted the 2010 Equity Incentive Plan (the “2010 Plan”). The 2010 Plan provides for the granting of stock options, RSUs and stock purchase rights to our employees, directors and consultants. Options granted under the 2010 Plan may be either incentive options or nonqualified stock options. Incentive stock options may be granted only to our employees, including officers. Nonqualified stock options and stock purchase rights may be granted to our employees, including directors, and consultants. Generally, our stock option and RSU awards vest over up to four years and are exercisable over a maximum period of ten years from their grant dates. Vesting typically terminates when the employment or consulting relationship ends.

As of June 30, 2017, there were 15,529,980 shares underlying outstanding equity awards.

2014 Performance-Based Stock Option Awards

In 2014, to create incentives for continued long-term success beyond the Model S program and to closely align executive pay with our stockholders’ interests in the achievement of significant milestones by us, the Compensation Committee of our Board of Directors granted stock option awards to certain employees (excluding our Chief Executive Officer) to purchase an aggregate of 1,073,000 shares of our common stock. Each award consisted of four vesting tranches with a vesting schedule based entirely on the attainment of performance milestones, assuming continued employment and service through each vesting date:

 

1/4th of each award vested upon completion of the first Model X production vehicle;

 

1/4th of each award is scheduled to vest upon achieving aggregate production of 100,000 vehicles in a trailing 12-month period;

 

1/4th of each award is scheduled to vest upon completion of the first Model 3 production vehicle; and

 

1/4th of each award is scheduled to vest upon achieving an annualized gross margin of greater than 30.0% for any three-year period.

As of June 30, 2017, the following performance milestones had been achieved:

 

Completion of the first Model X production vehicle; and

 

Aggregate production of 100,000 vehicles in a trailing 12-month period.

As of June 30, 2017, the following performance milestone was considered probable of achievement:

 

Completion of the first Model 3 production vehicle (which occurred in July 2017).

We begin recognizing stock-based compensation expense as each performance milestone becomes probable of achievement. As of June 30, 2017, we had unrecognized stock-based compensation expense of $17.1 million for the performance milestone that was considered not probable of achievement. For the three and six months ended June 30, 2017, we recorded stock-based compensation expense of $3.6 million and $6.3 million, respectively, related to these awards. For the three and six months ended June 30, 2016, we recorded stock-based compensation expense of $2.1 million and $11.1 million, respectively, related to these awards.

2012 Chief Executive Officer Awards

In August 2012, our Board of Directors granted 5,274,901 stock option awards to our Chief Executive Officer (the “2012 CEO Grant”). The 2012 CEO Grant consists of 10 vesting tranches with a vesting schedule based entirely on the attainment of both performance conditions and market conditions, assuming continued employment and service through each vesting date. Each vesting tranche requires a combination of a pre-determined performance milestone and an incremental increase in our market capitalization of $4.0 billion, as compared to our initial market capitalization of $3.2 billion at the time of grant. As of June 30, 2017, the market capitalization conditions for the 10 vesting tranches and the following seven performance milestones had been achieved:

 

Successful completion of the Model X alpha prototype;

 

Successful completion of the Model X beta prototype;

 

Completion of the first Model X production vehicle;

 

Aggregate production of 100,000 vehicles;

 

Successful completion of the Model 3 alpha prototype,

 

Successful completion of the Model 3 beta prototype; and

 

Aggregate production of 200,000 vehicles.

23


 

As of June 30, 2017, the following performance milestones were considered probable of achievement:

 

Completion of the first Model 3 production vehicle (which occurred in July 2017); and

 

Aggregate production of 300,000 vehicles.

We begin recognizing stock-based compensation expense as each milestone becomes probable of achievement. As of June 30, 2017, we had $2.2 million of total unrecognized stock-based compensation expense for those performance milestones that were considered probable of achievement, which will be recognized over a weighted-average period of 0.6 years. As of June 30, 2017, we had unrecognized stock-based compensation expense of $5.7 million for the performance milestone that was considered not probable of achievement. For the three and six months ended June 30, 2017, we recorded stock-based compensation expense of $1.7 million and $3.1 million, respectively, related to the 2012 CEO Grant. For the three and six months ended June 30, 2016, we recorded an immaterial amount and $10.3 million, respectively, related to the 2012 CEO Grant.

Our Chief Executive Officer earns a base salary that reflects the currently applicable minimum wage requirements under California law, and he is subject to income taxes based on such base salary. However, he has never accepted and currently does not accept his salary.

Summary Stock-Based Compensation Information

The following table summarizes our stock-based compensation expense by line item in the consolidated statements of operations (in thousands):

 

  

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Cost of sales

 

$

7,466

 

 

$

6,495

 

 

$

17,497

 

 

$

12,898

 

Research and development

 

 

57,794

 

 

 

33,506

 

 

 

106,986

 

 

 

73,108

 

Selling, general and administrative

 

 

50,782

 

 

 

27,311

 

 

 

95,276

 

 

 

70,963

 

Total

 

$

116,042

 

 

$

67,312

 

 

$

219,759

 

 

$

156,969

 

We realized no income tax benefits from stock option exercises in each of the periods presented due to recurring losses and valuation allowances. As of June 30, 2017, we had $1.3 billion of total unrecognized stock-based compensation expense related to non-performance awards, which will be recognized over a weighted-average period of 2.9 years.

 

Note 14 – Commitments and Contingencies

Non-Cancellable Leases

We have entered into various non-cancellable leases for certain of our offices, manufacturing and warehouse facilities, retail and service locations, equipment, vehicles, solar energy systems and Supercharger sites, throughout the world.

Build-to-Suit Lease Arrangement in Buffalo, New York

As discussed in Note 8, Property, Plant and Equipment , we have a build-to-suit lease arrangement with the Research Foundation for the State University of New York (the “Foundation”) where the Foundation will construct a solar cell and panel manufacturing facility, referred to as Gigafactory 2, with our participation in the design and construction, install certain utilities and other improvements and acquire certain manufacturing equipment designated by us to be used in the manufacturing facility. The Foundation will cover (i) construction costs related to the manufacturing facility in an amount up to $350.0 million, (ii) the acquisition and commissioning of the manufacturing equipment in an amount up to $274.7 million and (iii) $125.3 million for additional specified scope costs, in cases (i) and (ii) only, subject to the maximum funding allocation from the State of New York, and we will be responsible for any construction and equipment costs in excess of such amounts. The Foundation will own the manufacturing facility and the manufacturing equipment purchased by the Foundation. Following completion of the manufacturing facility, we will lease the manufacturing facility and the manufacturing equipment owned by the Foundation for an initial period of 10 years, with an option to renew, for $2 per year plus utilities.

Under the terms of the build-to-suit lease arrangement, we are required to achieve specific operational milestones during the initial term of the lease, which include employing a certain number of employees at the manufacturing facility, within western New York and within the State of New York within specified periods following the completion of the manufacturing facility. We are also required to spend or incur approximately $5.0 billion in combined capital, operational expenses and other costs in the State of New York over the 10 years following the achievement of full production. On an annual basis during the initial lease term, as measured on each anniversary of the commissioning of the manufacturing facility, if we fail to meet these specified investment and job creation requirements, then we would be obligated to pay a $41.2 million “program payment” to the Foundation for each year that we fail to

24


 

meet these requi rements. Furthermore, if the arrangement is terminated due to a material breach by us, then additional amounts might be payable by us.

The non-cash investing and financing activities related to the arrangement during the three and six months ended June 30, 2017 amounted to $40.7 million and $81.6 million, respectively.

Legal Proceedings

Securities Litigation

On March 28, 2014, a purported stockholder class action was filed in the United States District Court for the Northern District of California against SolarCity and two of its officers. The complaint alleges violations of federal securities laws, and seeks unspecified compensatory damages and other relief on behalf of a purported class of purchasers of SolarCity’s securities from March 6, 2013 to March 18, 2014. After a series of amendments to the original complaint, the District Court dismissed the amended complaint and entered a judgment in our favor on August 9, 2016. The plaintiffs have filed a notice of appeal, and the parties anticipate a hearing on the appeal no earlier than November 2017. We believe that the claims are without merit and intend to defend against this lawsuit and appeal vigorously. We are unable to estimate the possible loss or range of loss, if any, associated with this lawsuit.

On August 15, 2016, a purported stockholder class action lawsuit was filed in the United States District Court for the Northern District of California against SolarCity, two of its officers and a former officer. On March 20, 2017, the purported stockholder class filed a consolidated complaint that includes the original matter in the same court against SolarCity, one of its officers and three former officers. As consolidated, the complaint alleges that SolarCity made projections of future sales and installations that it failed to achieve and that these projections were fraudulent when made. The plaintiffs claim violations of federal securities laws and seek unspecified compensatory damages and other relief on behalf of a purported class of purchasers of SolarCity’s securities from May 6, 2015 to May 9, 2016. We believe that the claims are without merit and intend to defend against them vigorously. On July 25, 2017, the court took our fully-briefed motion to dismiss under submission. We are unable to estimate the possible loss or range of loss, if any, associated with this lawsuit.

Litigation Relating to the SolarCity Acquisition

Between September 1, 2016 and October 5, 2016, seven lawsuits were filed in the Court of Chancery of the State of Delaware by purported stockholders of Tesla challenging our acquisition of SolarCity. Following consolidation, the lawsuit names as defendants the members of our board of directors and alleges, among other things, that board members breached their fiduciary duties in connection with the acquisition. The complaint asserts both derivative claims and direct claims on behalf of a purported class and seeks, among other relief, unspecified monetary damages, attorneys’ fees, and costs. On January 27, 2017, the defendants filed a motion to dismiss the operative complaint. Rather than respond to the defendants’ motion, the plaintiffs filed an amended complaint. On March 17, 2017, the defendants filed a motion to dismiss the amended complaint; that motion is pending. These same plaintiffs filed a parallel action in the United States District Court for the District of Delaware on April 21, 2017, adding claims for violations of the federal securities laws.

On February 6, 2017, a purported stockholder made a demand to inspect our books and records, purportedly to investigate potential breaches of fiduciary duty in connection with the SolarCity acquisition. On April 17, 2017, the purported stockholder filed a petition for a writ of mandate in California Superior Court, seeking to compel us to provide the documents requested in the demand. We filed a demurrer to the writ petition or, in the alternative, a motion to stay the action, which remain pending.

On March 24, 2017, another lawsuit was filed in the United States District Court for the District of Delaware by a purported Tesla stockholder challenging the SolarCity acquisition. The complaint alleges, among other things, that our board of directors breached their fiduciary duties in connection with the acquisition and alleges violations of the federal securities laws.

We believe that claims challenging the SolarCity acquisition are without merit. We are unable to estimate the possible loss or range of loss, if any, associated with these claims.

Proceedings Relating to United States Treasury

In July 2012, SolarCity, along with other companies in the solar energy industry, received a subpoena from the U.S. Treasury Department’s Office of the Inspector General to deliver certain documents in SolarCity’s possession that were dated, created, revised or referred to after January 1, 2007 and that relate to SolarCity’s applications for U.S. Treasury grants or communications with certain other solar energy development companies or with certain firms that appraise solar energy property for U.S Treasury grant application purposes. The Inspector General and the Civil Division of the U.S. Department of Justice are investigating the administration and implementation of the U.S Treasury grant program relating to the fair market value of the solar energy systems that SolarCity

25


 

submitted in U.S. Treasury grant applications. We have accrued a reserve for the potential liability associated with this ongoing investigation.

In February 2013, two of our financing funds filed a lawsuit in the United States Court of Federal Claims against the U.S. government, seeking to recover $14.0 million that the U.S. Treasury Department was obligated to pay, but failed to pay, under Section 1603 of the American Recovery and Reinvestment Act of 2009. In February 2016, the U.S. government filed a motion seeking leave to assert a counterclaim against the two plaintiff funds on the grounds that the U.S. government, in fact, paid them more, not less, than they were entitled to as a matter of law. We believe that the U.S. government’s claims are without merit. We are unable to estimate the possible loss or range of loss, if any, associated with this lawsuit.

Other Matters

From time to time, we have received requests for information from regulators and governmental authorities, such as the National Highway Traffic Safety Administration, the National Transportation Safety Board and the Securities and Exchange Commission. We are also subject to various other legal proceedings and claims that arise from the normal course of business activities. If an unfavorable ruling were to occur, there exists the possibility of a material adverse impact on our results of operations, prospects, cash flows, financial position and brand.

Indemnifications and Guaranteed Returns

As disclosed in Note  15, VIE Arrangements , we are contractually committed to compensate certain fund investors for any losses that they may suffer in certain limited circumstances resulting from reductions in U.S. Treasury grants or ITCs. Generally, such obligations would arise as a result of reductions to the value of the underlying solar energy systems as assessed by the U.S. Treasury Department for purposes of claiming U.S. Treasury grants or as assessed by the IRS for purposes of claiming ITCs or U.S. Treasury grants. For each balance sheet date, we assess and recognize, when applicable, the potential exposure from this obligation based on all the information available at that time, including any guidelines issued by the U.S. Treasury Department on solar energy system valuations for purposes of claiming U.S. Treasury grants and any audits undertaken by the IRS. We believe that any payments to the fund investors in excess of the amount already recognized by us for this obligation are not probable based on the facts known at the filing date.

The maximum potential future payments that we could have to make under this obligation would depend on the difference between the fair values of the solar energy systems sold or transferred to the funds as determined by us and the values that the U.S. Treasury Department would determine as fair value for the systems for purposes of claiming U.S. Treasury grants or the values the IRS would determine as the fair value for the systems for purposes of claiming ITCs or U.S. Treasury grants. We claim U.S. Treasury grants based on guidelines provided by the U.S. Treasury department and the statutory regulations from the IRS. We use fair values determined with the assistance of independent third-party appraisals commissioned by us as the basis for determining the ITCs that are passed-through to and claimed by the fund investors. Since we cannot determine future revisions to U.S. Treasury Department guidelines governing solar energy system values or how the IRS will evaluate system values used in claiming ITCs or U.S. Treasury grants, we are unable to reliably estimate the maximum potential future payments that it could have to make under this obligation as of each balance sheet date.

We are eligible to receive certain state and local incentives that are associated with renewable energy generation. The amount of incentives that can be claimed is based on the projected or actual solar energy system size and/or the amount of solar energy produced. We also currently participate in one state’s incentive program that is based on either the fair market value or the tax basis of solar energy systems placed in service. State and local incentives received are allocated between us and fund investors in accordance with the contractual provisions of each fund. We are not contractually obligated to indemnify any fund investor for any losses they may incur due to a shortfall in the amount of state or local incentives actually received.

As disclosed in Note 15, we are contractually required to make payments to one fund investor to ensure that the fund investor achieves a specified minimum internal rate of return. The fund investor has already received a significant portion of the projected economic benefits from U.S. Treasury grant distributions and tax depreciation benefits. The contractual provisions of the fund state that the fund has an indefinite term unless the members agree to dissolve the fund. Based on our current financial projections regarding the amount and timing of future distributions to the fund investor, we do not expect to make any payments as a result of this guarantee and has not accrued any liabilities for this guarantee. The amount of potential future payments under this guarantee is dependent on the amount and timing of future distributions to the fund investor and future tax benefits that accrue to the fund investor. Due to the uncertainties surrounding estimating the amounts of these factors, we are unable to estimate the maximum potential payments under this guarantee. To date, the fund investor has achieved the specified minimum internal rate of return as determined in accordance with the contractual provisions of the fund.

Our lease pass-through financing funds have a one-time lease payment reset mechanism that occurs after the installation of all solar energy systems in a fund. As a result of this mechanism, we may be required to refund master lease prepayments previously received from investors. Any refunds of master lease prepayments would reduce the lease pass-through financing obligation.

26


 

Letters of Credit

As of June 30, 2017, we had $89.3 million of unused letters of credit outstanding.

 

Note 15 – VIE Arrangements

We have entered into various arrangements with investors to facilitate the funding and monetization of our solar energy systems. In particular, our wholly owned subsidiaries and fund investors have formed and contributed cash and assets into various financing funds and entered into related agreements. We have determined that the funds are VIEs and we are the primary beneficiary of these VIEs by reference to the power and benefits criterion under ASC 810, Consolidation . We have considered the provisions within the contractual agreements, which grant us the power to manage and make decisions that affect the operation of these VIEs, including determining the solar energy systems and associated customer contracts to be sold or contributed to these VIEs and the redeployment of solar energy systems and management of customer receivables. We consider that the rights granted to the fund investors under the contractual agreements are more protective in nature rather than participating.

As the primary beneficiary of these VIEs, we consolidate in the financial statements the financial position, results of operations and cash flows of these VIEs, and all intercompany balances and transactions between us and these VIEs are eliminated in the consolidated financial statements. Cash distributions of income and other receipts by a fund, net of agreed upon expenses, estimated expenses, tax benefits and detriments of income and loss and tax credits, are allocated to the fund investor and our subsidiary as specified in contractual agreements.

Generally, our subsidiary has the option to acquire the fund investor’s interest in the fund for an amount based on the market value of the fund or the formula specified in the contractual agreements.

As of June 30, 2017 and December 31, 2016, we were contractually required to make payments to a fund investor in order to ensure the investor is projected to achieve a specified minimum return annually. The amounts of any potential future payments under this guarantee are dependent on the amounts and timing of future distributions to the fund investor from the fund, the tax benefits that accrue to the fund investor from the fund’s activities and the amount and timing of our purchase of the fund investor’s interest in the fund or the amount and timing of the distributions to the fund investor upon liquidation of the fund. Due to uncertainties associated with estimating the amount and timing of distributions to the fund investor and the possibility and timing of liquidation of the fund, we are unable to determine the potential maximum future payments that we would have to make under this guarantee.

Upon the sale or liquidation of a fund, distributions would occur in the order and priority specified in the contractual agreements.

Pursuant to management services, maintenance and warranty arrangements, we have been contracted to provide services to the funds, such as operations and maintenance support, accounting, lease servicing and performance reporting. In some instances, we have guaranteed payments to the fund investors as specified in the contractual agreements. A fund’s creditors have no recourse to our general credit or to that of other funds. None of the assets of the funds had been pledged as collateral for their obligations.

27


 

We present the solar energy systems in the VIEs under solar energy systems, leased and to be leased, net, in the consolidated balance sheets. The aggregate carrying values of the VIEs’ assets and liabilities, after elimination of any intercompany transacti ons and balances, in the consolidated balance sheets were as follows (in thousands):

 

  

 

June 30, 2017

 

 

December 31, 2016

 

Assets

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

62,909

 

 

$

44,091

 

Restricted cash

 

 

21,810

 

 

 

20,916

 

Accounts receivable, net

 

 

34,810

 

 

 

16,023

 

Rebates receivable

 

 

7,502

 

 

 

6,646

 

Prepaid expenses and other current assets

 

 

4,339

 

 

 

7,532

 

Total current assets

 

 

131,370

 

 

 

95,208

 

Solar energy systems, leased and to be leased, net

 

 

5,000,795

 

 

 

4,618,443

 

Other assets

 

 

41,530

 

 

 

35,826

 

Total assets

 

$

5,173,695

 

 

$

4,749,477

 

Liabilities

 

 

 

 

 

 

 

 

Accounts Payable

 

$

31

 

 

$

20

 

Distributions payable to noncontrolling interests

   and redeemable noncontrolling interests

 

 

18,263

 

 

 

24,085

 

Accrued and other current liabilities

 

 

10,370

 

 

 

8,157

 

Customer deposits

 

 

2,402

 

 

 

1,169

 

Current portion of deferred revenue

 

 

37,160

 

 

 

17,114

 

Current portion of long-term debt

 

 

12,466

 

 

 

89,356

 

Total current liabilities

 

 

80,692

 

 

 

139,901

 

Deferred revenue, net of current portion

 

 

255,578

 

 

 

178,783

 

Long-term debt, net of current portion

 

 

602,167

 

 

 

466,741

 

Other liabilities and deferred costs

 

 

63,622

 

 

 

82,917

 

Total liabilities

 

$

1,002,059

 

 

$

868,342

 

We are contractually obligated to make certain fund investors whole if they suffer certain losses resulting from the disallowance or recapture of ITCs or U.S. Treasury grants. We account for distributions due to the fund investors arising from a reduction of anticipated ITCs or U.S. Treasury grants received under distributions payable to noncontrolling interests and redeemable noncontrolling interests in the consolidated balance sheets. As of June 30, 2017 and December 31, 2016, we had accrued $12.4 million and $0.3 million, respectively, for this obligation.

 

Note 16 – Related Party Transactions

Related party balances were comprised of the following (in thousands):

 

  

 

June 30, 2017

 

 

December 31, 2016

 

Solar Bonds issued to related parties

 

$

100

 

 

$

265,100

 

Convertible senior notes due to related parties

 

$

3,000

 

 

$

13,000

 

Promissory notes due to related parties

 

$

100,000

 

 

$

-

 

Due to related parties (primarily accrued interest,

   included in accrued and other current liabilities)

 

$

2,680

 

 

$

5,136

 

The related party transactions were primarily issuances, maturities and exchanges of debt held by Space Exploration Technologies Corporation (“SpaceX”), our Chief Executive Officer, SolarCity’s former Chief Executive Officer, SolarCity’s former Chief Technology Officer and an entity affiliated with our Chief Executive Officer. SpaceX is considered a related party because our Chief Executive Officer is the Chief Executive Officer, Chief Technology Officer, Chairman and a significant stockholder of SpaceX.

On March 21, 2017, $90.0 million in aggregate principal amount of 4.40% Solar Bonds held by SpaceX matured and were fully repaid by us. On June 10, 2017, $75.0 million in aggregate principal amount of 4.40% Solar Bonds held by SpaceX matured and were fully repaid by us.

On April 11, 2017, our Chief Executive Officer, SolarCity’s former Chief Executive Officer and SolarCity’s former Chief Technology Officer exchanged their $100.0 million (collectively) in aggregate principal amount of 6.50% Solar Bonds due in February 2018 for promissory notes in the same amounts and with substantially the same terms.

28


 

On April 18, 2017, our Chief Executive Officer convert ed all of his zero-coupon convertible senior notes due in 2020, which had an aggregate principal amount of $10.0 million (see Note 12, Common Stock ) .

 

Note 17 – Segment Reporting and Information about Geographic Areas

We operate under two reportable segments: (i) automotive and (ii) energy generation and storage. The automotive segment includes the design, development, manufacturing and sales of electric vehicles. Additionally, the automotive segment is also comprised of services and other, which includes after-sales vehicle services, used vehicle sales, powertrain sales and services by Grohmann. The energy generation and storage segment includes the design, manufacture, installation and sale or lease of stationary energy storage products and solar energy systems, or sale of electricity generated by our solar energy systems to customers. Our CODM does not evaluate operating segments using asset information. The following table presents revenues and gross margins by reportable segment (in thousands):

 

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

Automotive segment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

2,502,777

 

 

$

1,266,070

 

 

$

4,985,103

 

 

$

2,390,390

 

Gross profit

 

$

583,597

 

 

$

278,988

 

 

$

1,189,372

 

 

$

526,841

 

Energy generation and storage segment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

286,780

 

 

$

3,947

 

 

$

500,724

 

 

$

26,675

 

Gross profit

 

$

83,018

 

 

$

(4,212

)

 

$

145,189

 

 

$

403

 

 

The following table presents revenues by geographic area based on where our products are shipped (in thousands):

 

  

 

Three Months Ended June 30,

 

 

Six Months Ended June 30,

 

 

 

2017

 

 

2016

 

 

2017

 

 

2016

 

United States

 

$

1,523,042

 

 

$

830,675

 

 

$

2,798,250

 

 

$

1,458,963

 

China

 

 

463,587

 

 

 

132,938

 

 

 

967,521

 

 

 

252,416

 

Norway

 

 

122,102

 

 

 

42,372

 

 

 

257,504

 

 

 

100,809

 

Other

 

 

680,826

 

 

 

264,032

 

 

 

1,462,552

 

 

 

604,877

 

Total

 

$

2,789,557

 

 

$

1,270,017

 

 

$

5,485,827

 

 

$

2,417,065

 

 

The following table presents long-lived assets by geographic area (in thousands):

 

 

 

June 30, 2017

 

 

December 31, 2016

 

United States

 

$

13,949,495

 

 

$

11,399,545

 

International

 

 

668,238

 

 

 

503,294

 

Total

 

$

14,617,733

 

 

$

11,902,839

 

 

 

 

29


 

I TEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion and analysis should be read in conjunction with the consolidated financial statements and the accompanying notes included elsewhere in this Quarterly Report on Form 10-Q.

Overview

Our mission is to accelerate the world’s transition to sustainable energy. We design, develop, manufacture, lease and sell high-performance fully electric vehicles, solar energy generation systems and energy storage products. We also offer maintenance, installation, operation and other services related to our products.

Automotive

Our production vehicle fleet includes our Model S premium sedan and our Model X sport utility vehicle, which are our highest-performance and most capable vehicles, and beginning in July 2017, our Model 3, a lower priced sedan designed for the mass market. We continue to enhance our vehicle offerings with enhanced Autopilot options, Internet connectivity and free over-the-air software updates. We continually deploy our internally developed software into the vehicle fleet, depending on the hardware of the vehicle, to provide additional safety and convenience features. We are also actively working on future vehicles, such as a 100%-electric semi-truck.

In July 2017, we completed our engineering, manufacturing and supply chain efforts on Model 3 product development, and commenced production of Model 3 on schedule. We are continuing preparations at our production facilities and continue to work closely with all Model 3 suppliers as we ramp to volume production.

Energy Generation and Storage

Our energy storage products, which we manufacture at Gigafactory 1, consist of Powerwall for residential applications and Powerpack for commercial, industrial and utility-scale applications. We also plan to manufacture our Solar Roof as well as solar panels at our Gigafactory 2 in Buffalo, New York. In May 2017, we began accepting reservations for Solar Roof. We started pilot manufacturing Solar Roof tiles in the second quarter of 2017 in Fremont, and plan to transition to production before the end of the year to Gigafactory 2. Our partner, Panasonic, will provide capital and operational support to manufacture photovoltaic (“PV”) cells, thus enabling high volume integrated tile and PV cell production at a single facility.

Management Opportunities, Challenges and Risks

Automotive Demand, Production and Deliveries

We improve our production vehicles by introducing new over-the-air software updates continually, and new model variants from time to time, that improve range, performance, safety and value, and we expect to continue to do so. For example, we have recently expanded offerings of our battery size for Model S and Model X to cater to a wider range of consumers. Likewise, while early Model 3 vehicles will have a limited number of permutations, which significantly reduces manufacturing complexity and streamline the purchasing process for our customers, we will gradually introduce additional options, such as Dual Motor All Wheel Drive, as we ramp production. We also expect that the demand for our vehicles will continue to increase as we improve our vehicles, expand our retail, service and charging infrastructure, and as we develop and introduce new vehicle variants and models. In addition, the introduction of the more affordable Model 3 will continue to generate incremental demand for our vehicles by making our vehicles accessible to a larger market.

We are making progress in increasing vehicle production. For the three months ended June 30, 2017, we produced 25,708 vehicles, a new quarterly record, despite a production shortfall of 100 kWh battery packs for Model S and Model X through early June 2017 and disruptions from extensive installation of Model 3 manufacturing equipment. For Model 3, as is inherent in the production ramp of each all-new product, we expect production to begin slowly, grow exponentially, and then tail off at full production. Accordingly, we expect to achieve a rate of 5,000 Model 3 vehicles per week by the end of 2017. We expect to further ramp to a rate of 10,000 Model 3 vehicles per week, and an annual Tesla vehicle production rate in excess of 500,000, at some point in 2018. We have designed Model 3 to facilitate a ramp to volume production, including through production facilities that are highly dense and automated, resulting in costs of materials and labor for Model 3 that are expected to be significantly lower than those of Model S and Model X. We also expect to make additional investments and preparations as we make milestone-based payments for Model 3 equipment and continue with Gigafactory 1 construction, in addition to expanding our Supercharger, store, delivery hub and service networks.

In addition to expanding our vehicle production and deliveries, we expect to continue to lower the cost of manufacturing our vehicles over the next several quarters due to economies of scale, material cost reductions and more efficient manufacturing. We have achieved cost improvements through material cost reductions from both engineering and commercial actions and increased

30


 

manufacturing efficiencies including lower lab or and overhead and better inventory control. This is also evident through increased product reliability including vehicle, battery and drive units that resulted in reductions of our warranty expense.

In order to accommodate a much larger fleet of customer vehicles as we increase deliveries and to provide timely customer service, we continue to place emphasis on growing our sales, service and charging infrastructure worldwide. In particular, we continue to open new Tesla retail, locations, service centers and delivery hubs around the world, we continue to expand our mobile repair services, and we plan to significantly increase the number of Superchargers and Destination Charging connectors globally. We expect vehicle sales outside of North America to grow significantly in the long-term.

Energy Generation and Storage Demand

We believe that demand for our energy products will continue to increase with new product offerings and product integration. We plan to reduce customer acquisition costs of our energy generation products, including by cutting advertising spend and increasingly selling these products in Tesla stores. In the second quarter of 2017, we stopped door-to-door sales of solar products, and rolled out solar and storage product sales in over 50 Tesla stores, where we saw improved performance in key performance indicators relative to the best non-Tesla retail locations. Based on these results, we are continuing to roll out energy generation and storage products to our stores with dedicated energy product sales personnel.

Trends in Cash Flow, Capital Expenditures and Operating Expenses

We plan to continue to invest heavily in capital expenditures to increase vehicle production in our Fremont Facility, including for Model 3 production lines, facilities and manufacturing equipment at Gigafactory 1 as well as new retail locations, service centers and Supercharger locations. We expect to invest approximately $2.0 billion in capital expenditures during the second half of 2017.

As of June 30, 2017 and December 31, 2016, the net book value of our Supercharger network was $236.3 million and $207.2 million, respectively, and as of June 30, 2017, our Supercharger network included 884 locations globally. We plan to continue investing in our worldwide Supercharger network for the foreseeable future and expect such spending to continue to be a minimal portion of total capital spending. We allocate Supercharger-related operating expenses to cost of total automotive revenues and selling, general and administrative expenses, which were immaterial for all periods presented.

We expect operating expenses to grow in 2017 as compared to 2016, driven by engineering, design, testing and production expenses related to Model 3, supplier contracts and higher sales and service costs associated with expanding our worldwide geographic presence. In addition, we expect operating expenses to increase as a result of the increased selling, general and administrative expenses incurred by our energy generation and storage segment. We expect selling, general and administrative expenses to be essentially flat in the second half of 2017 compared to the first half of 2017, but then continue to increase in absolute amounts while declining significantly as a percentage of revenue due to the significant increase in revenue primarily driven by the ramp in Model 3 sales and as we focus on increasing operational efficiency while continuing to expand our customer and corporate infrastructure.

Automotive Financing Options

We offer loans and leases for our vehicles in certain markets in North America, Europe and Asia primarily through various financial institutions. We offered resale value guarantees or similar buy-back terms to all direct customers who purchase vehicles and who financed their vehicle through one of our specified commercial banking partners. Subsequent to June   30, 2016, this program is available only in certain international markets. Resale value guarantees available for exercise within the 12 months following June 30, 2017 total $222.9 million in value.

Vehicle deliveries with the resale value guarantee do not impact our near-term cash flows and liquidity, since we receive the full amount of cash for the vehicle sales price at delivery. However, this program requires the deferral of revenues and costs into future periods as they are considered leases for accounting purposes. While we do not assume any credit risk related to the customer, if a customer exercises the option to return the vehicle to us, we are exposed to liquidity risk that the resale value of vehicles under these programs may be lower than our guarantee, or the volume of vehicles returned to us may be higher than our estimates or we may be unable to resell the used cars in a timely manner, all of which could adversely impact our cash flows. Based on current market demand for our cars, we estimate the resale prices for our vehicles will continue to be above our resale value guarantee amounts. Should market values of our vehicles or customer demand decrease, these estimates may be impacted materially.

We currently offer vehicle leases in the U.S. directly from Tesla Finance, our captive financing entity, as well as through leasing partners. Leasing through Tesla Finance is available in 39 states and the District of Columbia. We also offer financing arrangements through our entities in Canada, Germany and the United Kingdom. Leasing through our captive financing entities and our leasing partners exposes us to residual value risk and will adversely impact our near-term operating results by requiring the deferral of revenues and costs into future periods under lease accounting. In addition, for leases offered directly from our captive financing entities (but not for those offered through our leasing partners), we only receive a limited portion of cash for the vehicle price at delivery and will assume customer credit risk. We plan to continue expanding our financing offerings, including our lease financing

31


 

opt ions and the financial sources to support them, and to support the overall financing needs of our customers. To the extent that we are unable to arrange such options for our customers on terms that are attractive, our sales, financial results and cash flow s could be negatively impacted.

Energy Generation and Storage Financing Options

We offer Solar Loans, whereby a third-party lender provides financing directly to a qualified customer to enable the customer to purchase and own a solar energy system designed, installed and serviced by us. We enter into a standard solar energy system sale agreement with the customer. Separately, the customer enters into a loan agreement with a third-party lender, who finances the full purchase price. We are not a party to the loan agreement between the customer and the third-party lender, and the third-party lender has no recourse against us with respect to the loan.

Gigafactory 1

We are developing Gigafactory 1 as a facility where we work together with our suppliers to integrate production of battery material, cells, modules, battery packs and drive units in one location for vehicles and energy storage products. We broke ground on Gigafactory 1 in June 2014, began assembling our energy storage products in the first portion of the facility in the fourth quarter of 2015 and began production of lithium-ion battery cells for our energy storage products in the first quarter of 2017 . At Gigafactory 1, we are now producing drive units, as well as our proprietary form factor cells, which are then assembled into battery packs, for Model 3. We also continue to invest in construction of the building at Gigafactory 1 and in production equipment for battery, module and pack production.

Panasonic has partnered with us on Gigafactory 1 with investments in the production equipment that it uses to manufacture and supply us with battery cells. Under our arrangement with Panasonic, we plan to purchase the full output from their production equipment at negotiated prices. As these terms convey to us the right to use, as defined in ASC 840, Leases , their production equipment, we consider them to be leased assets when production commences. This results in us recording the value of their production equipment within property, plant and equipment, net, on our consolidated balance sheets with a corresponding liability recorded to financing obligations. For all suppliers and partners for which we plan to purchase the full output from their production equipment located at Gigafactory 1, we will apply similar accounting. During the three and six months ended June 30, 2017, we recorded $115.5 million and $266.5 million, respectively, on our consolidated balance sheet.

While we currently believe that our progress at Gigafactory 1 will allow us to reach our production targets, our ultimate ability to do so will require us to resolve the types of challenges that are typical of a production ramp, such as those that we have experienced to date, including at Gigafactory 1. Moreover, given the size and complexity of this undertaking, it is possible that future events could result in the cost of building and operating Gigafactory 1 exceeding our current expectations and Gigafactory 1 taking longer to expand than we currently anticipate. In addition, we continue to expand production capacity at our Fremont Factory and are exploring additional production capacity in Asia and Europe .

Gigafactory 2

We have an agreement with the Research Foundation for the State University of New York (“Foundation”) for the construction of an approximately 1.0 million square-foot manufacturing facility capable of producing 1.0 gigawatts of solar cells annually in Buffalo, New York, referred to as Gigafactory 2. In December 2016, we entered into an agreement with Panasonic under which it will manufacture custom photovoltaic (“PV”) cells and modules for us, primarily at Gigafactory 2, and we will purchase certain quantities of PV cells and modules from them during the 10-year term, with the intent to produce PV cells and modules totaling approximately 1.0 gigawatts annually beginning in 2019.

The terms of our agreement with the Foundation, among other things, require us to comply with a number of covenants during the term of the agreement. Any failure to comply with these covenants could obligate us to pay significant amounts to the Foundation and result in termination of the agreement. Although we continue to remain on track with our progress at Gigafactory 2, our expectations as to the cost of building the facility, acquiring manufacturing equipment and supporting our manufacturing operations may prove incorrect, which could subject us to significant expenses to achieve the desired benefits.

 

Critical Accounting Policies and Estimates

The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”). The preparation of the consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, costs and expenses and the related disclosures. We base our estimates on historical experience, as appropriate, and on various other assumptions that we believe to be reasonable under the circumstances. Changes in the accounting estimates are reasonably likely to occur from period to period. Accordingly, actual results could differ significantly from the estimates made by us. We evaluate our estimates and assumptions on an on-going basis. To the extent that there

32


 

are material differences between our estimates and actual results, the future financial statement presentation, financial condition, results of operations and cash flows would be affected.

For a description of our critical accounting policies and estimates, please refer to Note 2, Summary of Significant Accounting Policies , included elsewhere in this Quarterly Report on Form 10-Q.

Results of Operations

Revenues

 

  

 

Three Months Ended June 30,

 

 

Change

 

 

Six Months Ended June 30,

 

 

Change

 

(Dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

 

2017

 

 

2016

 

 

$

 

 

%

 

Automotive sales

 

$

2,013,852

 

 

$

1,030,224

 

 

$

983,628

 

 

 

95

%

 

$

4,048,912

 

 

$

1,932,116

 

 

$

2,116,796

 

 

 

110

%

Automotive leasing

 

 

272,764

 

 

 

151,628

 

 

 

121,136

 

 

 

80

%

 

 

527,304

 

 

 

275,800

 

 

 

251,504

 

 

 

91

%

Total automotive revenues

 

 

2,286,616

 

 

 

1,181,852

 

 

 

1,104,764

 

 

 

93

%

 

 

4,576,216

 

 

 

2,207,916

 

 

 

2,368,300

 

 

 

107

%

Services and other

 

 

216,161

 

 

 

84,218

 

 

 

131,943

 

 

 

157

%

 

 

408,887

 

 

 

182,474

 

 

 

226,413

 

 

 

124

%

Total automotive &

   services and other

   segment revenue

 

 

2,502,777

 

 

 

1,266,070

 

 

 

1,236,707

 

 

 

98

%

 

 

4,985,103

 

 

 

2,390,390

 

 

 

2,594,713

 

 

 

109

%

Energy generation and storage

   segment revenue

 

 

286,780

 

 

 

3,947

 

 

 

282,833

 

 

 

7166

%

 

 

500,724

 

 

 

26,675

 

 

 

474,049

 

 

 

1777

%

Total revenues

 

$

2,789,557

 

 

$

1,270,017

 

 

$

1,519,540

 

 

 

120

%

 

$

5,485,827

 

 

$

2,417,065

 

 

$

3,068,762

 

 

 

127

%

Automotive & Services and Other Segment

Automotive sales revenue includes revenue related to the sale of new Model S and Model X vehicles, including internet connectivity, Supercharger access, specified software updates for vehicles equipped with autopilot hardware and sales of regulatory credits to other automotive manufacturers. Automotive sales revenue increased by $983.6 million, or 95%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. This was primarily due to a 97% increase in sales to 17,889 vehicles resulting from the ramp-up of Model X production as well as increased production and sales of Model S, at average selling prices that remained relatively consistent as compared to the prior period. Additionally, there was an increase of $104.3 million in sales of regulatory credits.

Automotive sales revenue increased by $2.1 billion, or 110%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. This was primarily due to a 111% increase in sales to 36,326 vehicles resulting from the ramp-up of Model X production as well as increased production and sales of Model S. Furthermore, vehicle average selling price increased by 2.8% primarily due to a larger proportion of Model X sales (which have higher average prices compared to Model S). Additionally, there were increases from recognition of $82.0 million of Autopilot 2.0 revenue and $48.2 million in sales of regulatory credits as compared to the six months ended June 30, 2016.

Automotive leasing revenue is comprised of revenue from Model S and Model X vehicles accounted for as operating leases, including the amortization of revenue for vehicles sold with resale value guarantees. Automotive leasing revenue increased by $121.1 million, or 80%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Automotive leasing revenue increased by $251.5 million, or 91%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to a 44% increase in cumulative vehicle deliveries under leasing programs and programs with a resale value guarantee as of June 30, 2017 as compared to June 30, 2016. In addition, during the three and six months ended June 30, 2017, we recognized $31.5 million and $72.9 million of automotive leasing revenue upon expiration of resale value guarantees.

Services and other revenue include sales of pre-owned vehicles, maintenance services for the fleet of Tesla vehicles and sales of electric vehicle powertrain components and systems to other manufacturers. Service and other revenue increased by $131.9 million, or 157%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. This was primarily due to an increase in pre-owned vehicle sales as an organic result of increased automotive sales as well as from expansion of our trade-in program. Additionally, there were increases of $10.4 million from powertrain sales to Daimler, $10.2 million from the inclusion of engineering service revenue from Grohmann, which we acquired on January 3, 2017, and an increase in maintenance services revenue of $9.3 million as our fleet continues to grow. In future periods, we do not anticipate meaningful revenue from sales of powertrain or other vehicle systems and components to third parties. However, we anticipate that revenue from sales of pre-owned vehicles will continue to increase as the volume of pre-owned vehicle sales increases and that revenue from services by Grohmann will decrease as we primarily consume internally its services.

33


 

Service and other revenue increased by $226.4  million, or 124% , in th e six months ended June 30, 2017 as compared to the six months ended June 30, 2016. This was primarily due to an increase in pre-owned vehicle sales as an organic result of increased automotive sales as well as from expansion of our trade-in program . Addit ionally, there were increases of $32.6 million from the inclusion of engineering service revenue from Grohmann, an increase in maintenance service revenue of $23.0 million as our fleet continues to grow, and $16.7 million from powertrain sales to Daimler.

Energy Generation and Storage Segment

Energy generation and storage revenue includes sales of solar energy systems and energy storage products, leasing revenue from solar energy systems under operating leases and power purchase agreements and sales of solar energy system incentives. Energy generation and storage revenue increased by $282.8 million, or 7166%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Energy generation and storage revenue increased by $474.1 million, or 1777%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to the inclusion of revenue from SolarCity, which we acquired on November 21, 2016, of $271.1 million and $479.7 million for the three and six months ended June 30, 2017, respectively.

Cost of Revenues and Gross Margin

 

 

 

Three Months Ended June 30,

 

 

Change

 

 

Six Months Ended June 30,

 

 

Change

 

(Dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

 

2017

 

 

2016

 

 

$

 

 

%

 

Cost of revenues

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Automotive sales

 

$

1,472,578

 

 

$

827,231

 

 

$

645,347

 

 

 

78

%

 

$

2,969,227

 

 

$

1,540,380

 

 

$

1,428,847

 

 

 

93

%

Automotive leasing

 

 

175,433

 

 

 

82,051

 

 

 

93,382

 

 

 

114

%

 

 

341,459

 

 

 

148,218

 

 

 

193,241

 

 

 

130

%

Total automotive cost of

   revenues

 

 

1,648,011

 

 

 

909,282

 

 

 

738,729

 

 

 

81

%

 

 

3,310,686

 

 

 

1,688,598

 

 

 

1,622,088

 

 

 

96

%

Services and other

 

 

271,169

 

 

 

77,800

 

 

 

193,369

 

 

 

249

%

 

 

485,045

 

 

 

174,951

 

 

 

310,094

 

 

 

177

%

Total automotive &

   services and other

   segment cost of

   revenue

 

 

1,919,180

 

 

 

987,082

 

 

 

932,098

 

 

 

94

%

 

 

3,795,731

 

 

 

1,863,549

 

 

 

1,932,182

 

 

 

104

%

Energy generation and

   storage segment

 

 

203,762

 

 

 

8,159

 

 

 

195,603

 

 

 

2397

%

 

 

355,535

 

 

 

26,272

 

 

 

329,263

 

 

 

1253

%

Total cost of revenues

 

$

2,122,942

 

 

$

995,241

 

 

$

1,127,701

 

 

 

113

%

 

$

4,151,266

 

 

$

1,889,821

 

 

$

2,261,445

 

 

 

120

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross profit total automotive

 

$

638,605

 

 

$

272,570

 

 

 

 

 

 

 

 

 

 

$

1,265,530

 

 

$

519,318

 

 

 

 

 

 

 

 

 

Gross margin total automotive

 

 

27.9

%

 

 

23.1

%

 

 

 

 

 

 

 

 

 

 

27.7

%

 

 

23.5

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross profit total automotive

   & services and other segment

 

$

583,597

 

 

$

278,988

 

 

 

 

 

 

 

 

 

 

$

1,189,372

 

 

$

526,841

 

 

 

 

 

 

 

 

 

Gross margin total automotive

   & services and other segment

 

 

23.3

%

 

 

22.0

%

 

 

 

 

 

 

 

 

 

 

23.9

%

 

 

22.0

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gross profit energy generation

   and storage segment

 

$

83,018

 

 

$

(4,212

)

 

 

 

 

 

 

 

 

 

$

145,189

 

 

$

403

 

 

 

 

 

 

 

 

 

Gross margin energy

   generation and storage

   segment

 

 

28.9

%

 

 

-106.7

%

 

 

 

 

 

 

 

 

 

 

29.0

%

 

 

1.5

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total gross profit

 

$

666,615

 

 

$

274,776

 

 

 

 

 

 

 

 

 

 

$

1,334,561

 

 

$

527,244

 

 

 

 

 

 

 

 

 

Total gross margin

 

 

23.9

%

 

 

21.6

%

 

 

 

 

 

 

 

 

 

 

24.3

%

 

 

21.8

%

 

 

 

 

 

 

 

 

Automotive & Services and Other Segment

Cost of automotive sales revenue includes direct parts, material and labor costs, manufacturing overhead, including depreciation costs of tooling and machinery, shipping and logistic costs, vehicle connectivity costs, allocations of electricity and infrastructure costs related to our Supercharger network and reserves for estimated warranty expenses. Cost of automotive sales revenue also includes adjustments to warranty expense and charges to write-down the carrying value of our inventory when it exceeds its estimated net realizable value and to provide for obsolete or excess inventory. Cost of automotive sales revenue increased by $645.3 million, or 78%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Cost of automotive sales revenue

34


 

increased by $1,428.8  million, or 93% , in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. Th ese increases were primarily due to increase s in vehicle deliveries of 97% and 111% in the three and six months e nded June 30, 2017 , respectively, as compared to the same period s in the prior year as a result of increased production and sales of Model S and Model X . The increase is offset by lower costs of production as we are gaining manufacturing efficiencies throu gh lower material costs and labor hours .

Cost of automotive leasing revenue primarily includes the amortization of operating lease vehicles over the lease term as well as warranty expenses recognized as incurred. Cost of automotive leasing revenue increased by $93.4 million, or 114%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Cost of automotive leasing revenue increased by $193.2 million, or 130%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to the 44% increase in cumulative vehicle deliveries under leasing programs and programs with resale value guarantees as of June 30, 2017 as compared to June 30, 2016. In addition, during the three and six months ended June 30, 2017, we recognized $31.5 million and $72.9 million of cost of automotive leasing revenue upon expiration of resale value guarantees.

Cost of services and other revenue includes costs associated with providing maintenance services to the fleet of Tesla vehicles, costs to acquire and sell pre-owned vehicles, direct parts, material and labor costs and manufacturing overhead associated with sales of electric vehicle powertrain components and systems to other manufacturers. Cost of services and other revenue increased by $193.4 million, or 249%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. This was primarily due to the increase in costs of pre-owned vehicle sales as a result of the increase in volume and $71.3 million increase in costs to provide maintenance service as our fleet continues to grow.

Cost of services and other revenue increased by $310.1 million, or 177%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. This was primarily due to the increase in costs of pre-owned vehicle sales as a result of the increase in volume and $112.9 million increase in costs to provide maintenance service as our fleet continues to grow. Additionally, there was an increase of $22.5 million due to the inclusion of Grohmann’s costs of engineering services and $14.7 million from powertrain sales to Daimler.

Gross margin for total automotive increased from 23.1% to 27.9% in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Gross margin for total automotive increased from 23.5% to 27.7% in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. Gross margin for total automotive & services and other segment increased from 22.0% to 23.3% in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Gross margin for total automotive & services and other segment increased from 22.0% to 23.9% in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to lower material and manufacturing costs as we further improved our vehicle production processes, recognition of Autopilot 2.0 revenue in the current year and additional sales of regulatory credits. These increases were partially offset by higher cost of maintenance service and current period expiration of resale value guarantees.

Energy Generation and Storage Segment

Cost of energy generation and storage revenue includes direct material and labor costs, overhead of solar energy systems and energy storage products, depreciation expense and maintenance costs associated with leased solar energy systems. Cost of energy generation and storage revenue increased by $195.6 million, or 2397%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Cost of energy generation and storage revenue increased by $329.3 million, or 1253%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to the inclusion of energy generation and storage costs from SolarCity of $174.0 million and $319.4 million in the three and six months ended June 30, 2017, respectively, as well as increases in sales of energy storage products as a result of growing popularity of our Powerpack and Powerwall offerings.

Gross margin for energy generation and storage increased from -106.7% to 28.9% in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Gross margin for energy generation and storage increased from 1.5% to 29.0% in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to the inclusion of revenue and costs from SolarCity and improved gross margin of energy storage sales.

Research and Development Expense

 

 

 

Three Months Ended June 30,

 

 

Change

 

 

Six Months Ended June 30,

 

 

Change

 

(Dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

 

2017

 

 

2016

 

 

$

 

 

%

 

Research and development

 

$

369,774

 

 

$

191,664

 

 

$

178,110

 

 

 

93

%

 

$

691,814

 

 

$

374,146

 

 

$

317,668

 

 

 

85

%

As a percentage of revenues

 

 

13.3

%

 

 

15.1

%

 

 

 

 

 

 

 

 

 

 

12.6

%

 

 

15.5

%

 

 

 

 

 

 

 

 

35


 

Research and development expense consists primar ily of personnel costs for our teams in engineering and research, supply chain, quality, manufacturing engineering and manufacturing test organizations, prototyping expense, contract and professional services and amortized equipment expense. Research and d evelopment expense increased by $178.1  million, or 93% , in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Th is increase was primarily due to a $93.2 million increase in employee and labor-rated expenses from increased headcount as a result of acquisitions as well as headcount growth from the expansion of our auto motive and energy storage business es . Additionally, there were increases of $ 37.3 mill ion in expensed materials, $23.3 million in facilities and depre ciation expenses to support our Model 3 and solar roof development and $13.6 million in professional and outside service expenses.

Research and development expense increased by $317.7 million, or 85%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. This increase was primarily due to a $147.4 million increase in employee and labor-rated expenses from increased headcount as a result of acquisitions as well as headcount growth from the expansion of our automotive and energy storage businesses. Additionally, there were increases of $57.0 million in expensed materials, $56.8 million in facilities and depreciation expenses to support our Model 3 and solar roof development and $20.2 million in professional and outside service expenses.

Selling, General and Administrative Expense

 

 

 

Three Months Ended June 30,

Change

 

 

Six Months Ended June 30,

 

 

Change

 

(Dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

 

2017

 

 

2016

 

 

$

 

 

%

 

Selling, general and

   administrative

 

$

537,757

 

 

$

321,152

 

 

$

216,605

 

 

 

67

%

 

$

1,141,212

 

 

$

639,362

 

 

$

501,850

 

 

 

78

%

As a percentage of revenues

 

 

19.3

%

 

 

25.3

%

 

 

 

 

 

 

 

 

 

 

20.8

%

 

 

26.5

%

 

 

 

 

 

 

 

 

Selling, general and administrative expense consists primarily of personnel and facilities costs related to our stores, marketing, sales, executive, finance, human resources, information technology and legal organizations, as well as litigation settlements and fees for professional and contract services. Selling, general and administrative expense increased by $216.6 million, or 67%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. This increase was primarily due to a $118.8 million increase in employee and labor-rated expenses from increased headcount as a result of acquisitions as well as headcount growth from the expansion of our automotive and energy storage businesses. Additionally, the increase was due to a $61.7 million increase in office, information technology and facilities-related expenses to support the growth of our business as well as sales and marketing activities to handle our expanding market presence and an $18.1 million increase in professional and outside service expenses to support the growth of our business.

Selling, general and administrative expense increased by $501.9 million, or 78%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. This increase was primarily due to a $288.9 million increase in employee and labor-rated expenses from increased headcount as a result of acquisitions as well as headcount growth from the expansion of our automotive and energy storage businesses. Additionally, the increase was due to a $122.6 million increase in office, information technology and facilities-related expenses to support the growth of our business as well as sales and marketing activities to handle our expanding market presence and a $55.1 million increase in professional and outside service expenses to support the growth of our business.

Interest Expense

 

 

 

Three Months Ended June 30,

 

 

Change

 

 

Six Months Ended June 30,

 

 

Change

 

(Dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

 

2017

 

 

2016

 

 

$

 

 

%

 

Interest expense

 

$

(108,441

)

 

$

(46,368

)

 

$

(62,073

)

 

 

134

%

 

$

(207,787

)

 

$

(86,993

)

 

$

(120,794

)

 

 

139

%

As a percentage of revenues

 

 

3.9

%

 

 

3.7

%

 

 

 

 

 

 

 

 

 

 

3.8

%

 

 

3.6

%

 

 

 

 

 

 

 

 

Interest expense increased by $62.1 million, or 134%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Interest expense increased by $120.8 million, or 139%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to the inclusion of interest expenses from SolarCity of $54.6 million and $107.8 million for the three and six months ended June 30, 2017, respectively. In addition, our outstanding indebtedness has increased since June 30, 2016.

Other Income (Expense), Net

 

 

 

Three Months Ended June 30,

 

 

Change

 

 

Six Months Ended June 30,

 

 

Change

 

(Dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

 

2017

 

 

2016

 

 

$

 

 

%

 

Other income (expense), net

 

$

(41,208

)

 

$

(7,373

)

 

$

(33,835

)

 

 

459

%

 

$

(59,306

)

 

$

1,804

 

 

$

(61,110

)

 

 

-3387

%

As a percentage of revenues

 

 

-1.5

%

 

 

-0.6

%

 

 

 

 

 

 

 

 

 

 

-1.1

%

 

 

0.1

%

 

 

 

 

 

 

 

 

36


 

Other income (expense), net, consi sts primarily of foreign exchange gains and losses related to our foreign currency denominated assets and liabilities as well as gains and losses from our interest rate swaps. Other income (expense), net, decreased by $33.8  million, or 459% , in the three m onths ended June 30, 2017 as compared to the three months ended June 30, 2016. This decrease was primarily the result of fluctuations in foreign currency exchange rates. Furthermore, an $8.6 million loss related to interest rate swaps was recognized.

Other income (expense), net, decreased by $61.1 million, or 3387%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. This decrease was primarily the result of fluctuations in foreign currency exchange rates. For the six months ended June 30, 2017, we recognized an $11.6 million other expense for the measurement period adjustment to the acquisition date fair value of certain assets as previously reported in our Form 10-K for the year ended December 31, 2016 and an $8.7 million loss related to interest rate swaps.

Provision for Income Taxes

 

 

 

Three Months Ended June 30,

 

 

Change

 

 

Six Months Ended June 30,

 

 

Change

 

(Dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

 

2017

 

 

2016

 

 

$

 

 

%

 

Provision for income taxes

 

$

15,647

 

 

$

3,649

 

 

$

11,998

 

 

 

329

%

 

$

40,925

 

 

$

7,495

 

 

$

33,430

 

 

 

446

%

As a percentage of loss before

   income taxes

 

 

-4.1

%

 

 

-1.3

%

 

 

 

 

 

 

 

 

 

 

-5.4

%

 

 

-1.3

%

 

 

 

 

 

 

 

 

Our provision for income taxes increased by $12.0 million, or 329%, in the three months ended June 30, 2017 as compared to the three months ended June 30, 2016. Our provision for income taxes increased by $33.4 million, or 446%, in the six months ended June 30, 2017 as compared to the six months ended June 30, 2016. These increases were primarily due to the significant increase in taxable income in our international jurisdictions due to increased vehicle deliveries.

Net Income (Loss) Attributable to Noncontrolling Interests and Redeemable Noncontrolling Interests

Our net income (loss) attributable to noncontrolling interests and redeemable noncontrolling interests was related to financing fund arrangements.

Liquidity and Capital Resources

As of June 30, 2017, we had $3.04 billion of cash and cash equivalents. Balances held in foreign currencies had a U.S. dollar equivalent of $495.3 million and consisted primarily of Chinese yuan, euros and Canadian dollars. Our sources of cash are predominately from our deliveries of vehicles, proceeds from debt facilities, proceeds from financing funds and sales and installations of our energy storage products and solar energy systems.

Our sources of liquidity and cash flows enable us to fund on-going operations, research and development projects, investments in tooling and manufacturing equipment for the production ramp of our Model 3 vehicle, the continued construction of Gigafactory 1 and the continued expansion of our retail stores, service centers, mobile repair services and Supercharger network. We are growing our vehicle manufacturing capacity primarily to fulfill anticipated future Model 3 production and sales, and we plan to increase Model 3 production to 5,000 vehicles per week by the end of 2017 and to 10,000 vehicles per week at some point in 2018. We expect to invest approximately $2.0 billion in capital expenditures during the second half of 2017. We continually evaluate our capital expenditure needs and may raise additional capital.

We have an agreement to spend or incur approximately $5.0 billion in combined capital, operational expenses, costs of goods sold and other costs in the State of New York during the 10-year period following full production at Gigafactory 2. We anticipate meeting these obligations through our operations at Gigafactory 2 and other operations within the State of New York, and we do not believe that we face a significant risk of default.

We expect that our current sources of liquidity together with our projection of cash flows from operating activities will provide us with adequate liquidity over at least the next 12 months. We may need or want to raise additional funds in the future, and these funds may not be available to us when we need or want them, or at all. If we cannot raise additional funds when we need or want them, our operations and prospects could be negatively affected.

In addition, we had $1.73 billion of unused committed amounts under our credit facilities and financing funds, some of which are subject to satisfying specified conditions prior to draw-down as discussed in Note 11, Convertible and Long-Term Debt Obligations , and Note 15, VIE Arrangements . For details regarding our indebtedness, refer to Note 11, Convertible and Long-Term Debt Obligations , to the consolidated financial statements included elsewhere in this Quarterly Report on Form 10-Q.

37


 

Summary of Cash Flows

 

  

 

Six Months Ended June 30,

 

(Dollars in thousands)

 

2017

 

 

2016

 

Net cash used in operating activities

 

$

(269,983

)

 

$

(99,269

)

Net cash used in investing activities

 

$

(2,142,159

)

 

$

(553,673

)

Net cash provided by financing activities

 

$

2,027,516

 

 

$

2,692,019

 

Cash Flows from Operating Activities

Our cash flows from operating activities are significantly affected by our cash investments to support the growth of our business in areas such as research and development and selling, general and administrative. Our operating cash inflows include cash from vehicle sales and lease payments directly from our customers, customer deposits for vehicles, sales of regulatory credits and energy generation and storage products. These cash inflows are offset by payments we make to our suppliers for production materials and parts used in our manufacturing process, employee compensation, operating lease payments and interest expenses on our financings.

Net cash used in operating activities during the six months ended June 30, 2017 increased by $170.7 million, as compared to the six months ended June 30, 2016, primarily as a result of an increase in working capital of $632.3 million offset by a reduction in net loss adjusted for non-cash items by $461.6 million. The change in cash used in operating activities was primarily a result of the increase in vehicle deliveries and the growth in our business. The main contributor to the reduction in net loss adjusted for non-cash items was an increase in depreciation and amortization expense as we continued to increase in our property, plant and equipment basis. The change in working capital was primarily due to higher customer deposits received in the six months ended June 30, 2016, when we began taking reservations for Model 3 .

Cash Flows from Investing Activities

Net cash used in investing activities was $2.1 billion and $553.7 million during the six months ended June 30, 2017 and 2016, respectively. Cash flows from investing activities and the variability across each year related primarily to capital expenditures, which were $1.5 billion and $511.6 million for the six months ended June 30, 2017 and 2016, respectively. The increase in capital expenditures was primarily due to payments for Model 3 production equipment in advance of the beginning of production in the third quarter of 2017. In addition, we used $418.8 million for the design, acquisition and installation of solar energy systems under operating leases with our customers during the six months ended June 30, 2017. We also paid $109.1 million, net of cash acquired, for the acquisition of Grohmann during the six months ended June 30, 2017 .

In 2014, we began construction of our Gigafactory 1 facility in Nevada. During the six months ended June 30, 2017, we used cash of $758.2 million towards Gigafactory 1 construction.

Cash Flows from Financing Activities

During the six months ended June 30, 2017, net cash provided by financing activities was $2.0 billion, which consisted primarily of $966.4 million from the issuance of convertible senior notes and $400.2 million from a public offering of our common stock, net of underwriter fees and issuance costs. Additionally, we paid $151.2 million for bond hedges, net of the amount we received from the sale of warrants. Furthermore, we received proceeds from vehicle sales to our bank leasing partners of $335.7 million and net proceeds from investments by fund investors of $459.6 million.

During the six months ended June 30, 2016, net cash provided by financing activities was $2.69 billion, which consisted primarily of $1.7 billion of net proceeds from a public offering of our common stock, net draws under our asset-based credit agreement of $543.0 million and proceeds received from vehicle sales to our bank leasing partners of $384.5 million.

Contractual Obligations

Contractual obligations did not materially change during the six months ended June 30, 2017 except for debt activity, as discussed in more detail in Note 11, Convertible and Long-Term Debt Obligations .

Off-Balance Sheet Arrangements

The consolidated financial statements include all assets, liabilities and results of operations of the financing fund arrangements that we have entered into. We have not entered into any other transactions that have generated relationships with unconsolidated entities, financial partnerships or special purpose entities. Accordingly, we do not have any off-balance sheet arrangements.

Recent Accounting Pronouncements

See Note 2, Summary of Significant Accounting Policies , to the consolidated financial statements included elsewhere in this Quarterly Report on Form 10-Q.

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ITEM 3.

QUANTITATIVE AND QUALITA T IVE DISCLOSURES ABOUT MARKET RISK

Foreign Currency Risk

We transact business globally in multiple currencies. Our foreign operations expose us to the risk of fluctuations in foreign currency exchange rates against the functional currencies of our foreign subsidiaries and against the U.S. dollar. Upon consolidation, as foreign currency exchange rates vary, revenues and expenses may be significantly impacted, and we may record significant gains or losses on the re-measurement of our monetary assets and liabilities, including intercompany balances. As of June 30, 2017, our largest foreign currency exposures were from the Chinese yuan, the Canadian dollar and the Hong Kong dollar. In the six months ended June 30, 2017, we recognized a net foreign currency exchange loss of $29.4 million in other income (expense), net.

We considered the historical trends in foreign currency exchange rates and determined that it is reasonably possible that adverse changes in foreign exchange rates of 10% for all currencies could be experienced in the near-term. These reasonably possible adverse changes were applied to our total monetary assets and liabilities denominated in currencies other than our functional currencies as of June 30, 2017 to compute the adverse impact these changes would have had on our income before income taxes. These changes would have resulted in an adverse impact on our income before income taxes of $131.0 million.

Interest Rate Risk

We are exposed to interest rate risk for our borrowings that bear interest at floating rates. Pursuant to our risk management policies, in certain cases, we utilize derivative instruments to manage some of our exposures to fluctuations in interest rates on certain floating-rate debt. We do not enter into any derivative instruments for trading or speculative purposes. A hypothetical 10% change in our interest rates would have increased our interest expense for the six months ended June 30, 2017 by $3.3 million.

I TEM 4.

CONTROLS AND PROCEDURES

Evaluation of Disclosure Controls and Procedures

Our management, with the participation of our Chief Executive Officer and our Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In designing and evaluating the disclosure controls and procedures, our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. In addition, the design of disclosure controls and procedures must reflect the fact that there are resource constraints and that our management is required to apply its judgment in evaluating the benefits of possible controls and procedures relative to their costs.

Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer concluded that, as of June 30 2017, our disclosure controls and procedures were designed at a reasonable assurance level and were effective to provide reasonable assurance that the information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosures.

Changes in Internal Control over Financial Reporting

There were no changes in our internal control over financial reporting, as identified in connection with the evaluation required by Rule 13a-15(d) and Rule 15d-15(d) of the Exchange Act, that occurred during the three months ended June 30, 2017 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

 

 

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P ART II. OTHER INFORMATION

ITEM 1. LEGAL PROCEEDINGS

Securities Litigation

On March 28, 2014, a purported stockholder class action was filed in the United States District Court for the Northern District of California against SolarCity and two of its officers. The complaint alleges violations of federal securities laws, and seeks unspecified compensatory damages and other relief on behalf of a purported class of purchasers of SolarCity’s securities from March 6, 2013 to March 18, 2014. After a series of amendments to the original complaint, the District Court dismissed the amended complaint and entered a judgment in our favor on August 9, 2016. The plaintiffs have filed a notice of appeal, and the parties anticipate a hearing on the appeal no earlier than November 2017. We believe that the claims are without merit and intend to defend against this lawsuit and appeal vigorously. We are unable to estimate the possible loss or range of loss, if any, associated with this lawsuit.

On August 15, 2016, a purported stockholder class action lawsuit was filed in the United States District Court for the Northern District of California against SolarCity, two of its officers and a former officer. On March 20, 2017, the purported stockholder class filed a consolidated complaint that includes the original matter in the same court against SolarCity, one of its officers and three former officers. As consolidated, the complaint alleges that SolarCity made projections of future sales and installations that it failed to achieve and that these projections were fraudulent when made. The plaintiffs claim violations of federal securities laws and seek unspecified compensatory damages and other relief on behalf of a purported class of purchasers of SolarCity’s securities from May 6, 2015 to May 9, 2016. We believe that the claims are without merit and intend to defend against them vigorously. On July 25, 2017, the court took SolarCity’s fully-briefed motion to dismiss under submission.  We are unable to estimate the possible loss or range of loss, if any, associated with this lawsuit.

Litigation Relating to the SolarCity Acquisition

Between September 1, 2016 and October 5, 2016, seven lawsuits were filed in the Court of Chancery of the State of Delaware by purported stockholders of Tesla challenging our acquisition of SolarCity. Following consolidation, the lawsuit names as defendants the members of Tesla’s board of directors and alleges, among other things, that board members breached their fiduciary duties in connection with the acquisition. The complaint asserts both derivative claims and direct claims on behalf of a purported class and seeks, among other relief, unspecified monetary damages, attorneys’ fees, and costs. On January 27, 2017, the defendants filed a motion to dismiss the operative complaint. Rather than respond to the defendants’ motion, the plaintiffs filed an amended complaint. On March 17, 2017, the defendants filed a motion to dismiss the amended complaint; that motion is pending. These same plaintiffs filed a parallel action in the United States District Court for the District of Delaware on April 21, 2017, adding claims for violations of the federal securities laws.

On February 6, 2017, a purported stockholder made a demand to inspect Tesla’s books and records, purportedly to investigate potential breaches of fiduciary duty in connection with the SolarCity acquisition. On April 17, 2017, the purported stockholder filed a petition for a writ of mandate in California Superior Court, seeking to compel Tesla to provide the documents requested in the demand. Tesla filed a demurrer to the writ petition or, in the alternative, a motion to stay the action, which remain pending.

On March 24, 2017, another lawsuit was filed in the United States District Court for the District of Delaware by a purported Tesla stockholder challenging the SolarCity acquisition. The complaint alleges, among other things, that Tesla’s board of directors breached their fiduciary duties in connection with the acquisition and alleges violations of the federal securities laws.

We believe that claims challenging the SolarCity acquisition are without merit. We are unable to estimate the possible loss or range of loss, if any, associated with these claims.

Proceedings Relating to United States Treasury

In July 2012, SolarCity, along with other companies in the solar energy industry, received a subpoena from the U.S. Treasury Department’s Office of the Inspector General to deliver certain documents in SolarCity’s possession that were dated, created, revised or referred to after January 1, 2007 and that relate to SolarCity’s applications for U.S. Treasury grants or communications with certain other solar energy development companies or with certain firms that appraise solar energy property for U.S Treasury grant application purposes. The Inspector General and the Civil Division of the U.S. Department of Justice are investigating the administration and implementation of the U.S Treasury grant program relating to the fair market value of the solar energy systems that SolarCity submitted in U.S. Treasury grant applications. We have accrued a reserve for the potential liability associated with this ongoing investigation.

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In February 2013, two of our financing funds filed a lawsuit in the United States Court of Federal Claims against the United States government, s eeking to recover $14.0   million that the United States Treasury was obligated to pay, but failed to pay, under Section 1603 of the American Recovery and Reinvestment Act of 2009. In February 2016, the U.S. government filed a motion seeking leave to assert a counterclaim against the two plaintiff funds on the grounds that the U.S. government, in fact, paid them more, not less, than they were e ntitled to as a matter of law. We believe that the U.S. government’s claims are without merit. We are unable to estimate the possible loss or range of loss , if any, associated with this lawsuit.

Other Matters

From time to time, we have received requests for information from regulators and governmental authorities, such as the National Highway Traffic Safety Administration, the National Transportation Safety Board and the Securities and Exchange Commission. We are also subject to various other legal proceedings and claims that arise from the normal course of business activities. If an unfavorable ruling were to occur, there exists the possibility of a material adverse impact on our results of operations, prospects, cash flows, financial position and brand.

ITEM 1A. RISK FACTORS

You should carefully consider the risks described below together with the other information set forth in this report, which could materially affect our business, financial condition and future results. The risks described below are not the only risks facing our company. Risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial condition and operating results.

Risks Related to Our Business and Industry

We have experienced in the past, and may experience in the future, significant delays or other complications in the design, manufacture, launch and production ramp of new vehicles and other products such as our energy storage products and the Solar Roof, which could harm our brand, business, prospects, financial condition and operating results.

We have experienced in the past launch, manufacturing and production ramp delays or other complications in connection with new vehicle models such as Model S and Model X, and new vehicle features such as the all-wheel drive dual motor drivetrain on Model S and the second version of autopilot hardware. For example, at times since the launch of Model X, we encountered unanticipated challenges, such as certain supply chain constraints, that forced us to decrease the production of these vehicles from our initial expectations. If unexpected issues arise or recur with respect to any of our production vehicles, we may experience further delays. In addition, because our vehicle models share certain production facilities with other models, the volume or efficiency of production with respect to one model may impact the production of other models.

We may also experience similar delays or other complications in bringing to market and ramping production of new vehicles, such as ramping Model 3 on production manufacturing lines, and other products such as our energy storage products and the Solar Roof. Any significant additional delay or other complication in the production of our current products or the development, manufacture, launch and production ramp of our future products, including complications associated with expanding our production capacity, supply chain or regulatory approvals, could materially damage our brand, business, prospects, financial condition and operating results.

We may experience delays in realizing our projected timelines and cost and volume targets for the production , launch and ramp of our Model 3 vehicle, which could harm our business , prospects , financial condition and operating results.

Our future business depends in large part on our ability to execute on our plans to manufacture, market and sell the Model 3 vehicle, which we intend to offer at a lower price point and to produce at significantly higher volumes than our present production capabilities for the Model S or Model X vehicles. We commenced production and initial customer deliveries of Model 3 in July 2017 and have announced our goal to increase Model 3 vehicle production to 5,000 vehicles per week by the end of 2017 and 10,000 vehicles per week at some point in 2018.

We have no experience to date in manufacturing vehicles at the high volumes that we anticipate for Model 3, and to be successful, we will need to complete the implementation and ramp of efficient, automated and low-cost manufacturing capabilities, processes and supply chains necessary to support such volumes. Moreover, our Model 3 production plan has required and will require significant investments of cash and management resources.

Our production plan for Model 3 is based on many key assumptions, including:

 

that we will be able to complete implementing and ramping a new dedicated final assembly line for high volume production of Model 3 at the Tesla Factory without exceeding our projected costs and on our projected timeline;

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that we will be able to continue to expand Gigafactory 1 in a timely manner to produce high volumes of quality lithium-ion cells to be integrate d into finished battery packs and drive unit co mponents for Model 3, all at costs that allow us to sell Model 3 at our target gross margins;

 

that the equipment and processes which we have selected for Model 3 production will be able to accurately manufacture high volumes of Model 3 vehicles within specified design tolerances and with high quality;

 

that we will be able to maintain suppliers for the necessary components on terms and conditions that are acceptable to us and that we will be able to obtain components on a timely basis and in the necessary quantities to support high volume production; and

 

that we will be able to attract, recruit, hire, train and retain skilled employees, including employees on the production line, to operate our planned high volume production facilities to support Model 3, including at the Tesla Factory and Gigafactory 1.

If one or more of the foregoing assumptions turns out to be incorrect, our ability to meet our Model 3 projections on time and at volumes and prices that are profitable, the number of current and future Model 3 reservations, as well as our business, prospects, operating results and financial condition, may be materially and adversely impacted.

We may be unable to meet our growing vehicle production and delivery plans, both of which could harm our business and prospects.

Our plans call for significant increases in vehicle production and deliveries to high volumes in a short amount of time. Our ability to achieve these plans will depend upon a number of factors, including our ability to add production lines and capacity as planned while maintaining our desired quality levels and optimize design and production changes, and our suppliers’ ability to support our needs. In addition, we have used and may use in the future a number of new manufacturing technologies, techniques and processes for our vehicles, which we must successfully introduce and scale for high volume production. For example, we have introduced aluminum spot welding systems and high-speed blow forming of certain difficult to stamp vehicle parts. We have also introduced unique design features in our vehicles with different manufacturing challenges, such as large display screens, dual motor drivetrain, autopilot hardware and falcon-wing doors. We have limited experience developing, manufacturing, selling and servicing, and allocating our available resources among, multiple products simultaneously. If we are unable to realize our plans, our brand, business, prospects, financial condition and operating results could be materially damaged.

Concurrent with the significant planned increase in our vehicle production levels, we will also need to continue to significantly increase deliveries of our vehicles. Although we have a plan for delivering a significantly increased volumes of vehicles, we have limited experience in delivering a high volume of vehicles, and no experience in delivering vehicles at the significantly higher volumes we anticipate for Model 3, and we may face difficulties meeting our delivery and growth plans into both existing markets as well as new markets into which we expand. If we are unable to ramp up to meet our delivery goals globally, this could have a material adverse effect on our business, prospects, financial condition and operating results.

We are dependent on our suppliers, the majority of which are single source suppliers, and the inability of these suppliers to deliver necessary components of our products in a timely manner at prices, quality levels, and volumes acceptable to us, or our inability to efficiently manage these components, could have a material adverse effect on our financial condition and operating results.

Our products contain numerous purchased parts which we source globally from hundreds of direct suppliers, the majority of whom are currently single source suppliers despite efforts to qualify and obtain components from multiple sources whenever feasible. Any significant unanticipated demand would require us to procure additional components in a short amount of time, and in the past we have also replaced certain suppliers because of their failure to provide components that met our quality control standards. While we believe that we will be able to secure additional or alternate sources of supply for most of our components in a relatively short time frame, there is no assurance that we will be able to do so or develop our own replacements for certain highly customized components of our products. Moreover, we have signed long-term agreements with Panasonic to be our manufacturing partner and supplier for lithium-ion cells at Gigafactory 1 in Nevada and PV cells and panels at Gigafactory 2 in Buffalo, New York. If we encounter unexpected difficulties with key suppliers such as Panasonic, and if we are unable to fill these needs from other suppliers, we could experience production delays and potential loss of access to important technology and parts for producing, servicing and supporting our products.

This limited, and in many cases single source, supply chain exposes us to multiple potential sources of delivery failure or component shortages for the production of our products, such as those which we experienced in 2012 and 2016 in connection with our slower-than-planned Model S and Model X ramps. Furthermore, unexpected changes in business conditions, materials pricing, labor issues, wars, governmental changes, natural disasters such as the March 2011 earthquakes in Japan and other factors beyond our and our suppliers’ control, could also affect our suppliers’ ability to deliver components to us on a timely basis. The loss of any single or limited source supplier or the disruption in the supply of components from these suppliers could lead to product design changes and

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delays in product deliveries to our customers, which could hurt our relationships with our customers and result in negative publicity, damage to our brand and a material and adverse effect on our business, prospects, financial condition and operating results.

Changes in our supply chain have also resulted in the past, and may result in the future, in increased cost. We have also experienced cost increases from certain of our suppliers in order to meet our quality targets and development timelines as well as due to design changes that we made, and we may experience similar cost increases in the future. Certain suppliers, including for Model X, have sought to renegotiate the terms of the supply arrangements. Additionally, we are negotiating with existing suppliers for cost reductions, seeking new and less expensive suppliers for certain parts, and attempting to redesign certain parts to make them less expensive to produce. If we are unsuccessful in our efforts to control and reduce supplier costs, our operating results will suffer. 

We expect the foregoing discussion to apply generally to Model 3. However, because we plan to produce Model 3 at significantly higher volumes than Model S or Model X, the negative impact of any delays or other constraints with respect to our suppliers for Model 3 could be substantially greater than any such issues experienced with respect to our products to date. As some of our suppliers for Model S and Model X do not have the resources, equipment or capability to provide components for the Model 3 in line with our requirements, we have engaged a significant number of new suppliers, and such suppliers will also have to ramp to achieve our needs in a short period of time. There is no assurance that these suppliers will ultimately be able to meet our cost, quality and volume needs. Furthermore, as the scale of our vehicle production increases, we will need to accurately forecast, purchase, warehouse and transport to our manufacturing facilities components at much higher volumes than we have experience with. If we are unable to accurately match the timing and quantities of component purchases to our actual needs, or successfully implement automation, inventory management and other systems to accommodate the increased complexity in our supply chain, we may incur unexpected production disruption, storage, transportation and write-off costs, which could have a material adverse effect on our financial condition and operating results.

Our future growth and success is dependent upon consumers’ willingness to adopt electric vehicles and specifically our vehicles, especially in the mass market demographic which we are targeting with Model 3.

Our growth is highly dependent upon the adoption by consumers of alternative fuel vehicles in general and electric vehicles in particular. Although we have successfully grown demand for Model S and Model X, have seen very strong initial demand for Model 3, and we believe that we will be able to continue to grow demand separately for each of these and future vehicles, there is no guarantee of such future demand or that our vehicles will not compete with one another in the market. Moreover, the mass market demographic which we are targeting with Model 3 is larger, but more competitive, than for Model S and Model X, and additional electric vehicles are coming on to the market.

If the market for electric vehicles in general and Tesla vehicles in particular does not develop as we expect, or develops more slowly than we expect, or if demand for our vehicles decreases in key and other markets, our business, prospects, financial condition and operating results could be harmed. The market for alternative fuel vehicles is relatively new, rapidly evolving, and could be affected by numerous external factors, such as:

 

p erceptions about electric vehicle features, quality, safety, performance and cost;

 

perceptions about the limited range over which electric vehicles may be driven on a single battery charge;

 

competition, including from other types of alternative fuel vehicles, plug-in hybrid electric vehicles, and high fuel-economy internal combustion engine vehicles;

 

volatility in the cost of oil and gasoline;

 

government regulations and economic incentives; and

 

access to charging facilities.

Future problems or delays in expanding Gigafactory 1 or ramping operations there could negatively affect the production and profitability of our products, such as Model 3.

To lower the cost of cell production and produce cells in high volume, we are integrating the production of lithium-ion cells and finished battery packs for the Model 3 and energy storage products at Gigafactory 1. While Gigafactory 1 began producing lithium-ion cells for energy storage products in January 2017 and has since begun producing lithium-ion cells for Model 3, we have no other direct experience in the production of lithium-ion cells. Given the size and complexity of this undertaking, it is possible that future events could result in the cost of expanding and operating Gigafactory 1 exceeding our current expectations and Gigafactory 1 taking longer to ramp production and expand than we currently anticipate. In order to reach our planned volume and gross margin for Model 3, we must have significant cell production from Gigafactory 1, which, among other things, requires Panasonic to successfully ramp its all-new cell production lines to significant volumes over a short period of time. Although Panasonic has a long track record of producing high-quality cells at significant volume at its factories in Japan, it has never before started and ramped cell production at a

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factory in the U.S. like at Gigafactory 1 . We a re now in the early stages of production and have experienced the types of challenges that typically come with a production ramp .   We expect that we will continue to experience challenges as we move through the ramp, and we will continue to fine-tune our manufacturing lines to address them.    While we currently believe that we will reach our production targets, if we are unable to resolve ramping challenges and expand Gigafactory 1 production in a timely manner and at reasonable prices , and if we or Panason ic are unable to attract, hire and retain a substantial number of highly skilled personnel, our ability to supply battery packs to our vehicles, especially Model 3, and other products could be negatively impacted. Any such problems or delays with Gigafacto ry 1 could negatively affect our brand and harm our business, prospects, financial condition and operating results.

If our vehicles or other products that we sell or install fail to perform as expected, our ability to develop, market and sell our products and services could be harmed.

If our vehicles or our energy products were to contain defects in design and manufacture that cause them not to perform as expected or that require repair, our ability to develop, market and sell our products and services could be harmed. For example, the operation of our vehicles is highly dependent on software, which is inherently complex and could conceivably contain defects and errors or be subject to external attacks. Issues experienced by customers have included those related to the software for the 17 inch display screen, the panoramic roof and the 12 volt battery in the Model S and the seats and doors in the Model X. Although we attempt to remedy any issues we observe in our products as effectively and rapidly as possible, such efforts may not be timely, may hamper production or may not be up to the satisfaction of our customers. While we have performed extensive internal testing on the products we manufacture, we currently have a limited frame of reference by which to evaluate detailed long-term quality, reliability, durability and performance characteristics of our battery packs, powertrains, vehicles and energy storage products. There can be no assurance that we will be able to detect and fix any defects in our products prior to their sale to or installation for consumers.

Any product defects or any other failure of our products to perform as expected could harm our reputation and result in delivery delays, product recalls, product liability claims, significant warranty and other expenses, and could have a material adverse impact on our business, financial condition, operating results and prospects. Our Model 3 vehicles have not yet been evaluated by NHTSA for a star rating under the New Car Assessment Program, and while based on our internal testing we expect to obtain comparable ratings to those achieved by Model S and Model X, there is no assurance this will occur.

If we fail to scale our business operations and otherwise manage future growth effectively as we rapidly grow our company, especially internationally, we may not be able to produce, market, sell and service our products successfully.

Any failure to manage our growth effectively could materially and adversely affect our business, prospects, operating results and financial condition. We continue to expand our operations significantly, especially internationally, including by a planned transition to high volume vehicle production and the worldwide sales and servicing of a significantly higher number of vehicles than our current vehicle fleet in the coming years, with the ramp of Model 3. Furthermore, we are developing and growing our energy storage product and solar business worldwide, including in countries where we have limited or no previous operating experience in connection with our vehicle business. Our future operating results depend to a large extent on our ability to manage our expansion and growth successfully. We may not be successful in undertaking this global expansion if we are unable to control expenses and avoid cost overruns and other unexpected operating costs; establish sufficient worldwide sales, service and Supercharger facilities in a timely manner; adapt our products and conduct our operations to meet local requirements; implement the required infrastructure, systems and processes; and find and hire a significant number of additional manufacturing, engineering, service, electrical installation, construction and administrative personnel.

If we are unable to continue to reduce the manufacturing costs of Model S and Model X or control manufacturing costs for Model 3, our financial condition and operating results will suffer.

As we have gradually ramped production of Model S and Model X, manufacturing costs per vehicle have decreased. While we expect ongoing cost reductions to be realized by both us and our suppliers, there is no guarantee we will be able to achieve sufficient cost savings to reach our gross margin and profitability goals. We incur significant costs related to procuring the materials required to manufacture our vehicles, assembling vehicles and compensating our personnel. We may also incur substantial costs or cost overruns in increasing the production capability of our vehicle manufacturing facilities, such as for Model 3. Furthermore, if we are unable to achieve production cost targets on our Model X and Model 3 vehicles pursuant to our plans, we may not be able to meet our gross margin and other financial targets.

Furthermore, many of the factors that impact our manufacturing costs are beyond our control, such as potential increases in the costs of our materials and components, such as lithium-ion battery cells or aluminum used to produce body panels. If we are unable to continue to control and reduce our manufacturing costs, our operating results, business and prospects will be harmed.

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We are significantly dependent upon revenue generated from the sale of a limited fleet of electric vehicles, which currently includes the Model S , Model X and Model 3.

We currently generate a significant percentage of our revenues from the sale of two products: Model S and Model X vehicles. Model 3, for which we are planning significantly higher volumes than Model S or Model X, has required and will require significant investment in connection with its start of production and ongoing ramp, and there is no guarantee that it will be commercially successful. Historically, automobile customers have come to expect a variety of vehicles offered in a manufacturer’s fleet and new and improved vehicle models to be introduced frequently. In order to meet these expectations, we may in the future be required to introduce on a regular basis new vehicle models as well as enhanced versions of existing vehicle models. To the extent our product variety and cycles do not meet consumer expectations, or cannot be produced on our projected timelines and cost and volume targets our future sales may be adversely affected. This could have a material adverse effect on our business, prospects, financial condition and operating results.

Our vehicles and energy storage products make use of lithium-ion battery cells, which have been observed to catch fire or vent smoke and flame, and such events have raised concerns, and future events may lead to additional concerns, about the batteries used in automotive applications.

The battery packs that we produce make use of lithium-ion cells. On rare occasions, lithium-ion cells can rapidly release the energy they contain by venting smoke and flames in a manner that can ignite nearby materials as well as other lithium-ion cells.

While we have designed the battery pack to passively contain any single cell’s release of energy without spreading to neighboring cells, there can be no assurance that a field or testing failure of our vehicles or other battery packs that we produce will not occur, which could subject us to lawsuits, product recalls, or redesign efforts, all of which would be time consuming and expensive. Also, negative public perceptions regarding the suitability of lithium-ion cells for automotive applications or any future incident involving lithium-ion cells such as a vehicle or other fire, even if such incident does not involve our vehicles or energy storage products, could seriously harm our business.

In addition, we store a significant number of lithium-ion cells at the Tesla Factory and plan to produce high volumes of cells and battery modules and packs at Gigafactory 1. Any mishandling of battery cells may cause disruption to the operation of our facilities. While we have implemented safety procedures related to the handling of the cells, there can be no assurance that a safety issue or fire related to the cells would not disrupt our operations. Such damage or injury could lead to adverse publicity and potentially a safety recall. Moreover, any failure of a competitor’s electric vehicle or energy storage product may cause indirect adverse publicity for us and our products. Such adverse publicity could negatively affect our brand and harm our business, prospects, financial condition and operating results.

Increases in costs, disruption of supply or shortage of materials, in particular for lithium-ion cells, could harm our business.

We may experience increases in the cost or a sustained interruption in the supply or shortage of materials. Any such increase, supply interruption or shortage could materially and negatively impact our business, prospects, financial condition and operating results. We use various materials in our business including aluminum, steel, lithium, cobalt, nickel and copper, as well as lithium-ion cells from suppliers. The prices for these materials fluctuate, and their available supply may be unstable, depending on market conditions and global demand for these materials, including as a result of increased production of electric vehicles and energy storage products by our competitors, and could adversely affect our business and operating results. For instance, we are exposed to multiple risks relating to lithium-ion cells. These risks include:

 

an increase in the cost, or decrease in the available supply, of materials used in the cells;

 

disruption in the supply of cells due to quality issues or recalls by battery cell manufacturers or any issues that may arise with respect to cells manufactured at our own facilities; and

 

fluctuations in the value of the Japanese yen against the U.S. dollar as our battery cell purchases for Model S and Model X and some raw materials for cells used in Model 3 and energy storage products are currently denominated in Japanese yen. 

Our business is dependent on the continued supply of battery cells for the battery packs used in our vehicles and energy storage products. While we believe several sources of the battery cells are available for such battery packs, and expect to eventually rely substantially on battery cells manufactured at our own facilities, we have to date fully qualified only a very limited number of suppliers for the cells used in such battery packs and have very limited flexibility in changing cell suppliers. In particular, we have fully qualified only one supplier for the cells used in battery packs for our current production vehicles. Any disruption in the supply of battery cells from such suppliers could disrupt production of our vehicles and of the battery packs we produce for energy products until such time as a different supplier is fully qualified. Furthermore, fluctuations or shortages in petroleum and other economic conditions may cause us to experience significant increases in freight charges and material costs. Substantial increases in the prices for our materials or prices charged to us, such as those charged by battery cell suppliers, would increase our operating costs, and could

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reduce our margins if we cannot recoup the increased costs through increased vehicle prices. Any attempts to increase vehicle prices in response to increased material costs could result in cancellations of vehicle orders and reservations and therefore materially and adversely affect our brand, image, business, prospects and operating results.

We may become subject to product liability claims, which could harm our financial condition and liquidity if we are not able to successfully defend or insure against such claims.

Although we design our vehicles to be the safest vehicles on the road, product liability claims could harm our business, prospects, operating results and financial condition. The automobile industry in particular experiences significant product liability claims and we face inherent risk of exposure to claims in the event our vehicles do not perform as expected. On extremely rare occasions, our cars have been involved and we expect in the future will be involved in crashes resulting in death or personal injury, and such crashes where Autopilot is engaged are the subject of significant public attention. We have experienced and we expect to continue to face claims related to misuse or failures of new technologies that we are pioneering, including Autopilot in our vehicles. Finally, as our solar energy systems and energy storage products generate and store electricity, they have the potential to cause injury to people or property. A successful product liability claim against us could require us to pay a substantial monetary award. Our risks in this area are particularly pronounced given the limited number of vehicles and energy storage products delivered to date and limited field experience of our products. Moreover, a product liability claim could generate substantial negative publicity about our products and business and could have material adverse effect on our brand, business, prospects and operating results. In most jurisdictions, we generally self-insure against the risk of product liability claims, meaning that any product liability claims will likely have to be paid from company funds, not by insurance.

The markets in which we operate are highly competitive, and we may not be successful in competing in these industries. We currently face competition from new and established domestic and international competitors and expect to face competition from others in the future, including competition from companies with new technology.

The worldwide automotive market, particularly for alternative fuel vehicles, is highly competitive today and we expect it will become even more so in the future. There is no assurance that our vehicles will be successful in the respective markets in which they compete. Many established and new automobile manufacturers such as Audi, BMW, Daimler, General Motors, Toyota and Volvo, as well as other companies, have entered or are reported to have plans to enter the alternative fuel vehicle market, including hybrid, plug-in hybrid and fully electric vehicles. For example, in July 2017, Volvo, citing increased customer demand, announced that each new model it introduces beginning in 2019 will be either fully-electric or hybrid-electric.  Most of our current and potential competitors have significantly greater financial, technical, manufacturing, marketing, vehicle sales networks and other resources than we do and may be able to devote greater resources to the design, development, manufacturing, distribution, promotion, sale and support of their products. Increased competition could result in lower vehicle unit sales, price reductions, revenue shortfalls, loss of customers and loss of market share, which could harm our business, prospects, financial condition and operating results. In addition, upon the launch of our Model 3 vehicle, we will face competition from existing and future automobile manufacturers in the extremely competitive entry-level premium sedan market, including Audi, BMW, Lexus and Mercedes.

The solar and energy storage industries are highly competitive. We face competition from other manufacturers, developers and installers of solar and energy storage systems, as well as from large utilities. Decreases in the retail prices of electricity from utilities or other renewable energy sources could make our products less attractive to customers and lead to an increased rate of customer defaults under our existing long-term leases and power purchase agreements. Moreover, solar panel and lithium-ion battery prices have declined and are continuing to decline. As we increase our battery and solar panel manufacturing capabilities, including at Gigafactory 1 and Gigafactory 2, future price declines may harm our ability to produce energy storage systems and solar panels at competitive prices.

If we are unable to establish and maintain confidence in our long-term business prospects among consumers, analysts and within our industries, then our financial condition, operating results, business prospects and stock price may suffer materially.

Consumers may be less likely to purchase our products now if they are not convinced that our business will succeed or that our service and support and other operations will continue for many years. Similarly, suppliers and other third parties will be less likely to invest time and resources in developing business relationships with us if they are not convinced that our business will succeed. Accordingly, in order to build and maintain our business, we must maintain confidence among customers, suppliers, analysts and other parties in our liquidity and long-term business prospects. Maintaining such confidence may be particularly complicated by certain factors, such as our limited operating history, unfamiliarity with our products, competition and uncertainty regarding the future of electric vehicles or our other products and services and our quarterly production and sales performance compared with market expectations. Many of these factors are largely outside our control, and any negative perceptions about our long-term business prospects, even if exaggerated or unfounded, would likely harm our business and make it more difficult to raise additional funds if needed.

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Our plan to expand our network of Tesla stores, galleries, service centers and Superchargers will require significant cash investments and management resources and may not meet expectations with respect to additional sales or installations of our products or availability of Superchargers.

Our plans to expand our network of Tesla stores, galleries, service centers, mobile service offerings and Superchargers will require significant cash investments and management resources and may not meet our expectations with respect to additional sales or installations of our products. This ongoing global expansion, which includes planned entry into markets in which we have limited or no experience selling, delivering, installing and/or servicing our products, and which may pose legal, regulatory, cultural and political challenges that we have not previously encountered, may not have the desired effect of increasing sales and installations and expanding our brand presence to the degree we are anticipating. Furthermore, the increasing number of Model S and Model X vehicles, as well as the significant increase in our vehicle fleet size that we expect from Model 3, will require us to continue to increase the number of our Supercharger stations significantly. If we fail to do so, our customers could become dissatisfied, which could adversely affect sales of our vehicles. We will also need to ensure we are in compliance with any regulatory requirements applicable to the sale, installation and service of our products, the sale of electricity generated through our solar energy systems, and operation of Superchargers in those jurisdictions, which could take considerable time and expense. If we experience any delays or cannot meet customer expectations in expanding our network of Tesla stores, galleries, service centers, mobile service offerings and Superchargers, this could lead to a decrease in sales or installations of our products and could negatively impact our business, prospects, financial condition and operating results.

We face risks associated with our international operations and expansion, including unfavorable regulatory, political, tax and labor conditions, and with establishing ourselves in new markets, all of which could harm our business.

We currently have international operations and subsidiaries in various countries and jurisdictions that are subject to legal, political, and regulatory requirements and social and economic conditions that may be very different from those affecting us domestically. Additionally, as part of our growth strategy, we will continue to expand our sales, service and Supercharger locations internationally. International expansion requires us to make significant expenditures, including the establishment of local operating entities, hiring of local employees and establishing facilities in advance of generating any revenue.

We are subject to a number of risks associated with international business activities that may increase our costs, impact our ability to sell our products and require significant management attention. These risks include conforming our products to various international regulatory and safety requirements as well as charging and other electric infrastructures, difficulty in establishing, staffing and managing foreign operations, challenges in attracting customers, foreign government taxes, regulations and permit requirements, our ability to enforce our contractual rights; trade restrictions, customs regulations, tariffs and price or exchange controls, and preferences of foreign nations for domestically manufactured products.

If we fail to effectively grow and manage the residual, financing and credit risks related to our vehicle financing programs, our business may suffer.

We offer vehicle financing arrangements for Model S and Model X through our local subsidiaries in the United States, Canada, Germany and the UK, including leasing directly through certain of those subsidiaries. The profitability of the leasing program depends on our ability to accurately project residual values, secure adequate financing and/or business partners to fund and grow this program, and screen for and manage customer credit risk. We expect the need for leasing and other financing options will continue to be important to Model S and Model X deliveries and for Model 3 in the long term. If we are unable to adequately fund our leasing program with internal funds, or partners or other external financing sources, and compelling alternative financing programs are not available for our customers, we may be unable to grow our sales. Furthermore, if our leasing business grows substantially, our business may suffer if we cannot effectively manage the greater levels of residual and credit risks resulting from growth. Finally, if we do not successfully monitor and comply with applicable national, state and/or local financial regulations and consumer protection laws governing lease transactions, we may become subject to enforcement actions or penalties, either of which may harm our business.

The unavailability, reduction or elimination of, or unfavorable determinations with respect to, government and economic incentives in the United States and abroad supporting the development and adoption of electric vehicles or solar energy could have some impact on demand for our products and services.

We currently benefit from certain government and economic incentives supporting the development and adoption of electric vehicles. In the United States and abroad, such incentives include, among other things, tax credits or rebates that encourage the purchase of electric vehicles. In Norway, for example, the purchase of electric vehicles is not currently subject to import taxes, taxes on non-recurring vehicle fees, the 25% value added tax or the purchase taxes that apply to the purchase of gas-powered vehicles. Notably, the quantum of incentive programs promoting electric vehicles is a tiny fraction of the amount of subsidies that are provided to gas-powered vehicles through the oil and gas industries. Nevertheless, even the limited benefits from such programs could be reduced, eliminated or exhausted. For example, in April 2017 and January 2016, respectively, previously available incentives in Hong Kong and Denmark that favored the purchase of electric vehicles expired, negatively impacting sales. Moreover, under current regulations, a $7,500 federal tax credit available in the United States for the purchase of qualified electric vehicles with at least 17

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kWh of battery capacity, such as our vehicles, will begi n to phase out with respect to any vehicles delivered in the second calendar quarter following the quarter in which we deliver our 200,000 th qualifying vehicle in the United States. In addition, California implemented regulations phasing out a $2,500 cash rebate on qualified electric vehicles for high-income consumers, which became effective in March 2016. In certain circumstances, there is pressure from the oil and gas lobby or related special interests to bring about such developments, which could have so me negative impact on demand for our vehicles.

In addition, certain governmental rebates, tax credits and other financial incentives that are currently available with respect to our solar and energy storage product businesses allow us to lower our installation costs and cost of capital and encourage customers to buy our products and investors to invest in our solar financing funds. However, these incentives may expire on a particular date, end when the allocated funding is exhausted or be reduced or terminated as renewable energy adoption rates increase, often without warning. For example, the federal government currently offers a 30% investment tax credit (“ITC”) for the installation of solar power facilities and energy storage systems that are charged from a co-sited solar power facility. The ITC is currently scheduled to decline to 10%, and expire altogether for residential systems, by January 2022. Likewise, in jurisdictions where net energy metering is currently available, our customers receive bill credits from utilities for energy that their solar energy systems generate and export to the grid in excess of the electric load they use. Several jurisdictions have reduced or eliminated the benefit available under net energy metering, or have proposed to do so. Such reductions in or termination of governmental incentives could adversely impact our results by making our products less competitive for potential customers, increasing our cost of capital and adversely impacting our ability to attract investment partners and to form new financing funds for our solar and energy storage assets.

Moreover, we and our fund investors claim the ITC in amounts based on the fair market value of our solar and energy storage systems. Although we obtain independent appraisals to support the claimed fair market values, the relevant governmental authorities have audited such values and in certain cases have determined that they should be lower, and they may do so in the future. Such determinations may result in adverse tax consequences and/or our obligation to make indemnification or other payments, or contribute additional assets, to our funds or fund investors.

If we are unable to integrate SolarCity successfully into our business, we may not realize the anticipated benefits of our acquisition of SolarCity.

We have devoted to date, and continue to devote, substantial attention and resources to integrating into our company the business and operations of SolarCity, which we acquired in November 2016. Our company has no prior experience integrating a business of the size and scale of SolarCity. If the integration process takes longer than expected or is more costly than expected, we may fail to realize some or all of the anticipated benefits of the acquisition.

Potential difficulties we may encounter in the integration process include the following:

 

the inability to successfully combine our business with that of SolarCity in a manner that permits the combined company to achieve the synergies we expect from the acquisition, which would result in the anticipated benefits of the acquisition not being realized partly or wholly in the time frame currently anticipated or at all;

 

complexities associated with managing the combined businesses;

 

integrating personnel from the two companies;

 

creation of uniform standards, controls, procedures, policies and information systems; and

 

potential unknown liabilities and unforeseen increased expenses, delays or regulatory conditions associated with the acquisition.

Any failure by us to realize the expected benefits of our substantial investments and commitments with respect to the manufacture of PV cells, including if we are unable to comply with the terms of our agreement with the Research Foundation for the State University of New York relating to our Gigafactory 2, could result in negative consequences for our business.

As part of our acquisition of SolarCity, we acquired certain PV cell manufacturing and technology assets, and a build-to-suit lease arrangement with the Research Foundation for the State University of New York (the “Foundation”). This agreement with the Foundation provides for the construction of Gigafactory 2 in Buffalo, New York, which at full capacity we expect will be capable of producing 1 gigawatt of PV cells annually, including for our Solar Roof. Under this agreement, we are obligated to, among other things, employ specified minimum numbers of personnel in the State of New York during the 10-year period following the arrival of manufacturing equipment, the receipt of certain permits and other specified items at Gigafactory 2, and spend or incur approximately $5.0 billion in combined capital, operational expenses, costs of goods sold and other costs in the State of New York during the 10-year period following the achievement of full production output at Gigafactory 2. If we fail in any year over the course of the term of the agreement to meet these obligations, we would be obligated to pay a “program payment” of $41.2 million to the Foundation in such year. Any inability on our part to comply with the requirements of this agreement may result in the payment of significant amounts to

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the Foundation, the termination of our lease at Gigafactory 2, and/or the need to secure an alternative supply of PV cells for products such as our So lar Roof. Moreover, if we are unable to utilize the other manufacturing and technology assets that were acquired in the SolarCity acquisition in accordance with our expectations, we may have to recognize accounting charges pertaining to the write-off of su ch assets. Any of the foregoing events could have a material adverse effect on our business, prospects, financial condition and operating results.

We are exposed to fluctuations in currency exchange rates, which could negatively affect our financial results.

Our revenues and costs denominated in foreign currencies are not completely matched. As we have increased Model S deliveries in markets outside of the United States, we have much higher revenues than costs denominated in other currencies such as the euro, Chinese yuan, Norwegian krone, pound sterling and Canadian dollar. Any strengthening of the U.S. dollar would tend to reduce our revenues as measured in U.S. dollars, as we have historically experienced. In addition, a portion of our costs and expenses have been, and we anticipate will continue to be, denominated in foreign currencies, including the Japanese yen. If we do not have fully offsetting revenues in these currencies and if the value of the U.S. dollar depreciates significantly against these currencies, our costs as measured in U.S. dollars as a percent of our revenues will correspondingly increase and our margins will suffer. Moreover, while we undertake limited hedging activities intended to offset the impact of currency translation exposure, it is impossible to predict or eliminate such impact. As a result, our operating results could be adversely affected.

If we are unable to attract and/or retain key employees and hire qualified personnel, our ability to compete could be harmed.

The loss of the services of any of our key employees could disrupt our operations, delay the development and introduction of our vehicles and services, and negatively impact our business, prospects and operating results. In particular, we are highly dependent on the services of Elon Musk, our Chief Executive Officer, and Jeffrey B. Straubel, our Chief Technical Officer.

None of our key employees is bound by an employment agreement for any specific term and we may not be able to successfully attract and retain senior leadership necessary to grow our business. Our future success depends upon our ability to attract and retain executive officers and other key technology, sales, marketing, engineering, manufacturing and support personnel and any failure to do so could adversely impact our business, prospects, financial condition and operating results.

Key talent may leave Tesla due to various factors, such as a very competitive labor market for talented individuals with automotive or technology experience. In California and other regions where we have operations, there is increasing competition for individuals with skillsets needed for our business, including specialized knowledge of electric vehicles, software engineering, manufacturing engineering, and other skills such as electrical and building construction expertise. This competition affects both our ability to retain key employees and hire new ones. Our continued success depends upon our continued ability to hire new employees in a timely manner, especially to support our expansion plans and ramp to high-volume manufacture of vehicles, and retain current employees. Additionally, we compete with both mature and prosperous companies that have far greater financial resources than we do and start-ups and emerging companies that promise short-term growth opportunities. Difficulties in retaining current employees or recruiting new ones could have an adverse effect on our performance.

We are highly dependent on the services of Elon Musk, our Chief Executive Officer.

We are highly dependent on the services of Elon Musk, our Chief Executive Officer, Chairman of our Board of Directors and largest stockholder. Although Mr. Musk spends significant time with Tesla and is highly active in our management, he does not devote his full time and attention to Tesla. Mr. Musk also currently serves as Chief Executive Officer and Chief Technical Officer of Space Exploration Technologies, a developer and manufacturer of space launch vehicles, and is involved in other emerging technology ventures.

We are subject to various environmental and safety laws and regulations that could impose substantial costs upon us and negatively impact our ability to operate our manufacturing facilities.

As a manufacturing company, including with respect to facilities such as the Tesla Factory, Gigafactory 1 and Gigafactory 2, we are subject to complex environmental, health and safety laws and regulations at numerous jurisdictional levels in the United States and abroad, including laws relating to the use, handling, storage, disposal and human exposure to hazardous materials. The costs of compliance, including remediating contamination if any is found on our properties and any changes to our operations mandated by new or amended laws, may be significant. We may also face unexpected delays in obtaining permits and approvals required by such laws in connection with our manufacturing facilities, which would hinder our operation of these facilities. Such costs and delays may adversely impact our business prospects and operating results. Furthermore, any violations of these laws may result in substantial fines and penalties, remediation costs, third party damages, or a suspension or cessation of our operations.

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Our business may be adversely affected by any disruptions caused by union activities.

It is common for employees at companies with significant manufacturing operations such as us to belong to a union, which can result in higher employee costs and increased risk of work stoppages. Moreover, regulations in some jurisdictions outside of the United States mandate employee participation in industrial collective bargaining agreements and work councils with certain consultation rights with respect to the relevant companies’ operations. Although we work diligently to provide the best possible work environment for our employees, they may still decide to join or seek recognition to form a labor union, or we may be required to become a union signatory. Furthermore, we are directly or indirectly dependent upon companies with unionized work forces, such as parts suppliers and trucking and freight companies, and work stoppages or strikes organized by such unions could have a material adverse impact on our business, financial condition or operating results. If a work stoppage occurs, it could delay the manufacture and sale of our products and have a material adverse effect on our business, prospects, operating results or financial condition.

Our products and services are subject to substantial regulations, which are evolving, and unfavorable changes or failure by us to comply with these regulations could substantially harm our business and operating results.

Motor vehicles are subject to substantial regulation under international, federal, state, and local laws. We incur significant costs in complying with these regulations, and may be required to incur additional costs to comply with any changes to such regulations. We are subject to laws and regulations applicable to the manufacture, import, sale and service of automobiles internationally. For example, in countries outside of the United States, we are required to meet vehicle-specific safety standards that are often materially different from requirements in the United States, thus resulting in additional investment into the vehicles and systems to ensure regulatory compliance in those countries. This process may include official review and certification of our vehicles by foreign regulatory agencies prior to market entry, as well as compliance with foreign reporting and recall management systems requirements.

Additionally, our vehicles are equipped with a suite of driver-assistance features called Autopilot, which help assist drivers with certain tedious and potentially dangerous aspects of road travel, but require drivers to remain engaged. Autopilot is a recently-introduced feature with which domestic and foreign regulators have limited experience. Any changes in law or regulatory enforcement could impact whether and how our customers are able to use our vehicles equipped with Autopilot, and which, depending on the severity, could adversely affect our business.

Moreover, as a manufacturer and installer of solar panels and energy storage systems and a supplier of electricity generated and stored by the solar energy and energy storage systems we install for customers, we are impacted by federal, state and local regulations and policies concerning electricity pricing, the interconnection of electricity generation and storage equipment with the electric grid, and the sale of electricity generated by third-party owned systems. For example, existing or proposed regulations and policies would permit utilities to limit the amount of electricity generated by our customers with their solar energy systems, charge fees and penalties to our customers relating to the purchase of energy other than from the grid, adjust electricity rate designs such that the price of our solar products may not be competitive with that of electricity from the grid, restrict us and our customers from transacting under our power purchase agreements or qualifying for government incentives and benefits that apply to solar power, and limit or eliminate net energy metering. If such regulations and policies remain in effect or are adopted in other jurisdictions, or if other regulations and policies that adversely impact the interconnection of our solar and energy storage systems to the grid are introduced, modified or eliminated, they could deter potential customers from purchasing our solar and energy storage products, threaten the economics of our existing contracts and cause us to cease solar and energy storage system sales and operations in the relevant jurisdictions, which could harm our business, prospects, financial condition and results of operations.

We are subject to various privacy and consumer protection laws.

Our privacy policy is posted on our website, and any failure by us or our vendor or other business partners to comply with it or with federal, state or international privacy, data protection or security laws or regulations could result in regulatory or litigation-related actions against us, legal liability, fines, damages and other costs. We may also incur substantial expenses and costs in connection with maintaining compliance with such laws. Although we take steps to protect the security of our customers’ personal information, we may be required to expend significant resources to comply with data breach requirements if third parties improperly obtain and use the personal information of our customers or we otherwise experience a data loss with respect to customers’ personal information. A major breach of our network security and systems could have negative consequences for our business and future prospects, including possible fines, penalties and damages, reduced customer demand for our vehicles, and harm to our reputation and brand.

We may be compelled to undertake product recalls or take other actions, which could adversely affect our brand image and financial performance.

Any product recall, including for solar or charging equipment, in the future may result in adverse publicity, damage our brand and adversely affect our business, prospects, operating results and financial condition. For example, certain limited vehicle recalls that we initiated in the past two years have resulted from a component that could prevent the parking brake from releasing once engaged, a concern with the firmware in the restraints control module in certain right-hand-drive vehicles, industry-wide issues with airbags from

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a particular supplier, a front seat belt issue in a single field vehicle, and an internal test that revealed unintended movement in the Model X third row seats during a collision. None of our past recalls have been related to our electric powertrain . Furthermore, testing of our vehicles by government regulators or industry groups may require us to initiate vehicle recalls or may result in negative public perceptions about the safety of our vehicles. In the future, we may at various times, voluntarily o r involuntarily, initiate a recall if any of our products or our electric vehicle powertrain components that we have provide d to other vehicle OEMs, including any systems or parts sourced from our suppliers, prove to be defective or noncompliant with applicable laws and regulations, such as federal motor vehicle safety standards. Such recalls, whether voluntary or involuntary or caused by systems or components engineered or manufactured by us or our suppliers, could involve significant expense and could adversely affect our brand image in our target markets, as well as our business, prospects, financial condition and results of o perations.

Our resale value guarantee and leasing programs for our vehicles expose us to the risk that the resale values of vehicles returned to us are lower than our estimates and may result in lower revenues, gross margin, profitability and liquidity.

We have provided resale value guarantees to many of our customers, under which such customers may sell their vehicles back to us at certain points in time at pre-determined resale values. If the resale values of any vehicles resold or returned to us pursuant to these programs are materially lower than our estimates, our profitability and/or liquidity could be negatively impacted.

We apply lease accounting on sales of vehicles with a resale value guarantee and on leases made directly by us or by our leasing partners. Under lease accounting, we recognize the associated revenues and costs of the vehicle sale over time rather than fully upfront at vehicle delivery. As a result, these programs generate lower revenues in the period the car is delivered and higher gross margins during the period of the resale value guarantee as compared to purchases in which the resale value guarantee does not apply. A higher than anticipated prevalence of these programs could therefore have an adverse impact on our near term revenues and operating results. Moreover, unlike the sale of a vehicle with a resale value guarantee or programs with leasing partners which do not impact our cash flows and liquidity at the time of vehicle delivery, under a lease held directly by us, we may receive only a very small portion of the total vehicle purchase price at the time of lease, followed by a stream of payments over the term of the lease. To the extent we expand our leasing program without securing external financing or business partners to support such expansion, our cash flow and liquidity could also be negatively impacted.

Our current and future warranty reserves may be insufficient to cover future warranty claims which could adversely affect our financial performance.

Subject to separate limited warranties for the supplemental restraint system, battery and drive unit, we provide four year or 50,000 mile limited warranties for the purchasers of new Model S and Model X vehicles and pre-owned Model S vehicles certified and sold by us. The limited warranty for the battery and drive unit covers the drive unit for eight years, as well as the battery for a period of eight years (or for certain older vehicles, 125,000 miles if reached sooner than eight years), although the battery’s charging capacity is not covered under any of our warranties or Extended Service plans. In addition, customers of new Model S and Model X vehicles have the opportunity to purchase an Extended Service plan for the period after the end of the limited warranty for their new vehicles to cover additional services for up to an additional four years or 50,000 miles, provided it is purchased within a specified period of time.

For energy storage products, we provide limited warranties against defects and to guarantee minimum energy retention levels. For example, we guarantee that each Powerwall 2 product will maintain at least 70-80% of its stated energy capacity after 10 years, and that each Powerpack 2 product will retain specified minimum energy capacities in each of its first 10 to 15 years of use. For our Solar Roof, we offer a warranty on the glass tiles for the lifetime of a customer’s home and a separate warranty for the energy generation capability of the solar tiles. We also offer extended warranties, availability guarantees and capacity guarantees for periods of up to 20 years at an additional cost at the time of purchase, as well as workmanship warranties to customers who elect to have us install their systems.  

Finally, customers who buy energy from us under solar energy system leases or power purchase agreements are covered by warranties equal to the length of the agreement term, which is typically 20 years. Systems purchased for cash are covered by a warranty of up to 10 years, with extended warranties available at additional cost. In addition, we pass through to our customers the inverter and panel manufacturers’ warranties, which generally range from 5 to 25 years, subjecting us to the risk that the manufacturers may later cease operations or fail to honor their underlying warranties. Finally, we provide a performance guarantee with our leased solar energy systems that compensates a customer on an annual basis if their system does not meet the electricity production guarantees set forth in their lease.

If our warranty reserves are inadequate to cover future warranty claims on our products, our business, prospects, financial condition and operating results could be materially and adversely affected. Warranty reserves include management’s best estimate of the projected costs to repair or to replace items under warranty. These estimates are based on actual claims incurred to-date and an estimate of the nature, frequency and costs of future claims. Such estimates are inherently uncertain and changes to our historical or

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proje cted experience, especially with respect to products such as Model 3 and Solar Roof that are new and/or that we expect to produce at significantly greater volumes than our past products, may cause material changes to our warranty reserves in the future.

We are currently expanding and improving our information technology systems and use security measures designed to protect our systems against breaches and cyber-attacks. If these efforts are not successful, our business and operations could be disrupted and our operating results and reputation could be harmed.

We are currently expanding and improving our information technology systems, including implementing new internally developed systems, to assist us in the management of our business. In particular, our volume production of multiple vehicles necessitates continued development, maintenance and improvement of our information technology systems in the United States and abroad, which include product data management, procurement, inventory management, production planning and execution, sales, service and logistics, dealer management, financial, tax and regulatory compliance systems. The implementation, maintenance and improvement of these systems require significant management time, support and cost. Moreover, there are inherent risks associated with developing, improving and expanding our core systems as well as implementing new systems, including the disruption of our data management, procurement, manufacturing execution, finance, supply chain and sales and service processes. These risks may affect our ability to manage our data and inventory, procure parts or supplies or manufacture, sell, deliver and service vehicles, or achieve and maintain compliance with, or realize available benefits under, tax laws and other applicable regulations. We also maintain information technology measures designed to protect us against system security risks, data breaches and cyber-attacks.

We cannot be sure that these systems or their required functionality will be effectively implemented, maintained or expanded as planned. If we do not successfully implement, maintain or expand these systems as planned, our operations may be disrupted, our ability to accurately and/or timely report our financial results could be impaired, and deficiencies may arise in our internal control over financial reporting, which may impact our ability to certify our financial results. Moreover, our proprietary information could be compromised and our reputation may be adversely affected. If these systems or their functionality do not operate as we expect them to, we may be required to expend significant resources to make corrections or find alternative sources for performing these functions.

Our insurance strategy may not be adequate to protect us from all business risks.

We may be subject, in the ordinary course of business, to losses resulting from products liability, accidents, acts of God and other claims against us, for which we may have no insurance coverage. As a general matter, we do not maintain as much insurance coverage as many other companies do, and in some cases, we do not maintain any at all. Additionally, the policies that we do have may include significant deductibles or self-insured retentions, and we cannot be certain that our insurance coverage will be sufficient to cover all future losses or claims against us. A loss that is uninsured or which exceeds policy limits may require us to pay substantial amounts, which could adversely affect our financial condition and operating results.

Our financial results may vary significantly from period-to-period due to fluctuations in our operating costs.

We expect our period-to-period financial results to vary based on our operating costs which we anticipate will increase significantly in future periods as we, among other things, design, develop and manufacture current and future products, increase the production capacity at our manufacturing facilities to produce vehicles at higher volumes, including ramping up the production of Model S, Model X and Model 3, expand Gigafactory 1, open new Tesla stores and service centers with maintenance and repair capabilities, open new Supercharger locations, develop Gigafactory 2, increase our sales and marketing activities, and increase our general and administrative functions to support our growing operations. As a result of these factors, we believe that quarter-to-quarter comparisons of our financial results, especially in the short-term, are not necessarily meaningful and that these comparisons cannot be relied upon as indicators of future performance. Moreover, our financial results may not meet expectations of equity research analysts or investors. If any of this occurs, the trading price of our stock could fall substantially, either suddenly or over time.

Any unauthorized control or manipulation of our vehicles’ systems could result in loss of confidence in us and our vehicles and harm our business.

Our vehicles contain complex information technology systems. For example, our vehicles are designed with built-in data connectivity to accept and install periodic remote updates from us to improve or update the functionality of our vehicles. We have designed, implemented and tested security measures intended to prevent unauthorized access to our information technology networks, our vehicles and their systems. However, hackers have reportedly attempted, and may attempt in the future, to gain unauthorized access to modify, alter and use such networks, vehicles and systems to gain control of, or to change, our vehicles’ functionality, user interface and performance characteristics, or to gain access to data stored in or generated by the vehicle. We encourage reporting of potential vulnerabilities in the security of our vehicles via our security vulnerability reporting policy, and we aim to remedy any reported and verified vulnerabilities. Accordingly, we have received reports of potential vulnerabilities in the past and have attempted to remedy them. However, there can be no assurance that vulnerabilities will not be identified in the future, or that our remediation efforts are or will be successful.

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Any unauthorized access to or control of our vehicles or their systems or any loss of data could result in legal claims or proceedings. In addition, regardless of their veracity , reports of unauthorized access to our vehicles, their systems or data, as well as other factors that may result in the perception that our vehicles, their systems or data are capable of being “hacked,” could negatively affect our brand and harm our busin ess, prospects, financial condition and operating results. We have been the subject of such reports in the past.

Servicing our indebtedness requires a significant amount of cash, and we may not have sufficient cash flow from our business to pay our substantial indebtedness.

As of June 30, 2017, we had outstanding in aggregate principal amounts $60.2 million of the 2018 Notes, $920.0 million of the 2019 Notes, $1.38 billion of the 2021 Notes and $977.5 million of the 2022 Notes (collectively, the “Tesla Convertible Notes”). In addition, we have established a senior secured asset based revolving credit agreement (the “Credit Agreement”) that allows us to borrow, under certain circumstances, up to $1.83 billion. As of June 30, 2017, we had $856.5 million in borrowings under the credit facility pursuant to the Credit Agreement. We are also party to a warehouse credit facility with lender commitments of $900.0 million (the “Warehouse Facility”), of which we had borrowed $478.7 million as of June 30, 2017. Moreover, as of June 30 , 2017, our subsidiary, SolarCity Corporation, together with its subsidiaries, had total outstanding indebtedness of $3.36 billion, including under its credit facilities (the “SolarCity Credit Facilities”). Such outstanding indebtedness included $359.0 million drawn under a secured revolving credit facility with lender commitments of $393.5 million as of June 30 , 2017, which matures in December 2017, as well as $230.0 million in aggregate principal amount of 2.75% convertible senior notes due 2018, $566.0 million in aggregate principal amount of 1.625% convertible senior notes due 2019 and $103.0 million in aggregate principal amount of zero coupon convertible senior notes due 2020 (collectively, the “SolarCity Convertible Notes”). Our substantial consolidated indebtedness may increase our vulnerability to any generally adverse economic and industry conditions, and we and our subsidiaries may, subject to the limitations in the terms of our existing and future indebtedness, incur additional debt, secure existing or future debt or recapitalize our debt.

Pursuant to their terms, holders may convert their Tesla Convertible Notes at their option prior to the scheduled maturities of the respective Tesla Convertible Notes under certain circumstances. The 2018 Notes have been convertible at their holders’ option during each quarter commencing with the fourth quarter of 2013, except the first quarter of 2014. Upon conversion of the applicable Tesla Convertible Notes, we will be obligated to make cash payments in respect of the principal amounts thereof, and we may also have to deliver cash and/or shares of our common stock, in respect of the conversion value in excess of such principal amounts on such Tesla Convertible Notes. For example, in June 2017, pursuant to separate privately negotiated agreements, we converted $144.8 million in aggregate principal amount of the 2018 Notes in exchange for 1.2 million shares of our common stock. The SolarCity Convertible Notes are also currently convertible into shares of our common stock at conversion prices ranging from $300.00 to $759.36 per share. In addition, holders of the Tesla Convertible Notes and the SolarCity Convertible Notes will have the right to require us to repurchase their notes upon the occurrence of a fundamental change at a purchase price equal to 100% of the principal amount of the notes, plus accrued and unpaid interest, if any, to, but not including, the fundamental change purchase date.

Our ability to make scheduled payments of the principal and interest on our indebtedness when due or to make payments upon conversion or repurchase demands with respect to our convertible notes, or to refinance our indebtedness as we may need or desire, depends on our future performance, which is subject to economic, financial, competitive and other factors beyond our control. Our business may not continue to generate cash flow from operations in the future sufficient to satisfy our obligations under our existing indebtedness, and any future indebtedness we may incur, and to make necessary capital expenditures. If we are unable to generate such cash flow, we may be required to adopt one or more alternatives, such as reducing or delaying investments or capital expenditures, selling assets, refinancing or obtaining additional equity capital on terms that may be onerous or highly dilutive. Our ability to refinance existing or future indebtedness will depend on the capital markets and our financial condition at such time. In addition, our ability to make payments may be limited by law, by regulatory authority or by agreements governing our future indebtedness. We may not be able to engage in any of these activities or engage in these activities on desirable terms or at all, which could result in a default on our existing or future indebtedness and have a material adverse effect on our business, results of operations and financial condition.

Our debt agreements contain covenant restrictions that may limit our ability to operate our business.

The terms of our Credit Facility and/or certain of the SolarCity Credit Facilities contain, and any of our other future debt agreements may contain, covenant restrictions that limit our ability to operate our business, including restrictions on our ability to, among other things, incur additional debt or issue guarantees, create liens, repurchase stock or make other restricted payments, and make certain voluntary prepayments of specified debt. In addition, under certain circumstances we are required to comply with a fixed charge coverage ratio. As a result of these covenants, our ability to respond to changes in business and economic conditions and engage in beneficial transactions, including to obtain additional financing as needed, may be restricted. Furthermore, our failure to comply with our debt covenants could result in a default under our debt agreements, which could permit the holders to accelerate our obligation to repay the debt. If any of our debt is accelerated, we may not have sufficient funds available to repay it.

53


 

We may need or want to raise additional funds and these funds may not be available to us when we need them. If we cannot raise additional funds when we need or want them , our operations and prospects could be negatively affected .

The design, manufacture, sale, installation and/or servicing of automobiles, energy storage products and solar products is a capital intensive business. Until we are consistently generating positive free cash flows, we may need or want to raise additional funds through the issuance of equity, equity-related or debt securities or through obtaining credit from financial institutions to fund, together with our principal sources of liquidity , the costs of developing and manufacturing our current or future vehicles , energy storage products and/or solar products, to pay any significant unplanned or accelerated expenses or for new significant strategic investments, or to refinance our significant consolidated indebtedness, even if not required to do so by the terms of such indebtedness. We need sufficient capital to fund our ongoing operations, continue research and development projects, establish sales and service centers, build and deploy Superchargers , expand Gigafactory 1, develop Gigafactory 2 and to make the investments in tooling and manufacturing capital required to introduce new vehicles , energy storage products and solar products. We cannot be certain that additional funds will be available to us on favorable terms when required, or at all. If we cannot raise additional funds when we need them, our financial condition, results of operations, business and prospects could be materially and adversely affected.

Additionally, we use capital from third-party fund investors to reduce the cost of capital of our solar energy system installations, improve our margins, offset future reductions in government incentives and maintain the price competitiveness of our solar energy systems. The availability of this tax-advantaged financing depends upon many factors, including the confidence of the investors in the solar energy industry and the quality and mix of our customer contracts, any regulatory changes impacting the economics of our existing customer contracts, changes in legal and tax advantages or risks or government incentives associated with these financings, and our ability to compete with other renewable energy companies for the limited number of potential fund investors. Moreover, interest rates are at historically low levels. If the rate of return required by investors rises as a result of a rise in interest rates, it will reduce the present value of the customer payment streams underlying, and therefore the total value of, our financing structures, increasing our cost of capital. If we are unable to establish new financing funds on favorable terms for third-party ownership arrangements to enable our customers’ access to our solar energy systems with little or no upfront cost, we may be unable to finance installation of our customers’ systems, or our cost of capital could increase and our liquidity may be negatively impacted, any of which would have an adverse effect on our business, financial condition and results of operations.

We may face regulatory limitations on our ability to sell vehicles directly which could materially and adversely affect our ability to sell our electric vehicles.

We sell our vehicles directly to consumers. We may not be able to sell our vehicles through this sales model in each state in the United States as some states have laws that may be interpreted to impose limitations on this direct-to-consumer sales model. In certain states in which we are not able to obtain dealer licenses, we have opened galleries, which are not full retail locations.

The application of these state laws to our operations continues to be difficult to predict. Laws in some states have limited our ability to obtain dealer licenses from state motor vehicle regulators and may continue to do so.

In addition, decisions by regulators permitting us to sell vehicles may be subject to challenges by dealer associations and others as to whether such decisions comply with applicable state motor vehicle industry laws. We have prevailed in many of these lawsuits and such results have reinforced our continuing belief that state laws were not designed to prevent our distribution model. In some states, there have also been regulatory and legislative efforts by vehicle dealer associations to propose bills and regulations that, if enacted, would prevent us from obtaining dealer licenses in their states given our current sales model. A few states have passed legislation that clarifies our ability to operate, but at the same time limits the number of dealer licenses we can obtain or stores that we can operate. We have also filed a lawsuit in federal court in Michigan challenging the constitutionality of the state’s prohibition on direct sales as applied to our business.

Internationally, there may be laws in jurisdictions we have not yet entered or laws we are unaware of in jurisdictions we have entered that may restrict our sales or other business practices. Even for those jurisdictions we have analyzed, the laws in this area can be complex, difficult to interpret and may change over time. Continued regulatory limitations and other obstacles interfering with our ability to sell vehicles directly to consumers could have a negative and material impact our business, prospects, financial condition and results of operations.

We may need to defend ourselves against intellectual property infringement claims, which may be time-consuming and could cause us to incur substantial costs.

Others, including our competitors, may hold or obtain patents, copyrights, trademarks or other proprietary rights that could prevent, limit or interfere with our ability to make, use, develop, sell or market our products and services, which could make it more difficult for us to operate our business. From time to time, the holders of such intellectual property rights may assert their rights and urge us to take licenses, and/or may bring suits alleging infringement or misappropriation of such rights. We may consider the entering

54


 

into licensing agreements with respect to such rights, although no assurance can be given that such licenses can be obtained on acceptable terms or that litigation will not occur, and such licenses could significantly increase our operating expenses. In addition, if we are determined to have infringed upon a third party’s intellectual property rights, we may be required to cease making, selling or incorporating certain components or intellectual property into the goods and servi ces we offer, to pay substantial damages and/or license royalties, to redesign our products and services, and/or to establish and maintain alternative branding for our products and services. In the event that we were required to take one or more such actio ns, our business, prospects, operating results and financial condition could be materially adversely affected. In addition, any litigation or claims, whether or not valid, could result in substantial costs, negative publicity and diversion of resources and management attention.

Our facilities or operations could be damaged or adversely affected as a result of disasters.

Our corporate headquarters, the Tesla Factory and Gigafactory 1 are located in seismically active regions in Northern California and Nevada. If major disasters such as earthquakes or other events occur, or our information system or communications network breaks down or operates improperly, our headquarters and production facilities may be seriously damaged, or we may have to stop or delay production and shipment of our products. We may incur expenses relating to such damages, which could have a material adverse impact on our business, operating results and financial condition.

Risks Related to the Ownership of Our Common Stock

The trading price of our common stock is likely to continue to be volatile.

The trading price of our common stock has been highly volatile and could continue to be subject to wide fluctuations in response to various factors, some of which are beyond our control. Our common stock has experienced an intra-day trading high of $386.99 per share and a low of $178.19 per share over the last 52 weeks. The stock market in general, and the market for technology companies in particular, has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. Broad market and industry factors may seriously affect the market price of companies’ stock, including ours, regardless of actual operating performance. In addition, in the past, following periods of volatility in the overall market and the market price of a particular company’s securities, securities class action litigation has often been instituted against these companies. For example, a shareholder litigation like this was filed against us in 2013. While the plaintiffs’ complaint was dismissed with prejudice, any future shareholder litigation could result in substantial costs and a diversion of our management’s attention and resources.

We may fail to meet our publicly announced guidance or other expectations about our business, which could cause our stock price to decline.

We occasionally provide guidance regarding our expected financial and business performance, such as projections regarding sales and production, as well as anticipated future revenues, gross margins, profitability and cash flows. Correctly identifying key factors affecting business conditions and predicting future events is inherently an uncertain process and our guidance may not ultimately be accurate. Our guidance is based on certain assumptions such as those relating to anticipated production and sales volumes and average sales prices, supplier and commodity costs, and planned cost reductions. If our guidance is not accurate or varies from actual results due to our inability to meet our assumptions or the impact on our financial performance that could occur as a result of various risks and uncertainties, the market value of our common stock could decline significantly.

Transactions relating to our convertible notes may dilute the ownership interest of existing stockholders, or may otherwise depress the price of our common stock.

The conversion of some or all of the Tesla Convertible Notes or the SolarCity Convertible Notes would dilute the ownership interests of existing stockholders to the extent we deliver shares upon conversion of any of such notes. Our 2018 Notes and the SolarCity Convertible Notes have been historically, and the other Tesla Convertible Notes may become in the future, convertible at the option of their holders prior to their scheduled terms under certain circumstances. If holders elect to convert their convertible notes, we could be required to deliver to them a significant number of shares of our common stock. Any sales in the public market of the common stock issuable upon such conversion could adversely affect prevailing market prices of our common stock. In addition, the existence of the convertible notes may encourage short selling by market participants because the conversion of such notes could be used to satisfy short positions, or anticipated conversion of such notes into shares of our common stock could depress the price of our common stock.

Moreover, in connection with each issuance of the Tesla Convertible Notes, we entered into convertible note hedge transactions, which are expected to reduce the potential dilution and/or offset potential cash payments we are required to make in excess of the principal amount upon conversion of the applicable Tesla Convertible Notes. We also entered into warrant transactions with the hedge counterparties, which could separately have a dilutive effect on our common stock to the extent that the market price per share of our common stock exceeds the applicable strike price of the warrants on the applicable expiration dates. In addition, the hedge

55


 

counterparties or their affiliates may enter into various transactions with respect to their hedge positions, which could also cause or prevent an increase or a decrease in the marke t price of our common stock or the convertible notes.

Elon Musk has pledged shares of our common stock to secure certain bank borrowings. If Mr. Musk were forced to sell these shares pursuant to a margin call that he could not avoid or satisfy, such sales could cause our stock price to decline.

Certain banking institutions have made extensions of credit to Elon Musk, our Chief Executive Officer, a portion of which was used to purchase shares of common stock in certain of our public offerings and private placements at the same prices offered to third party participants in such offerings and placements. We are not a party to these loans, which are partially secured by pledges of a portion of the Tesla common stock currently owned by Mr. Musk. If the price of our common stock were to decline substantially and Mr. Musk were unable to avoid or satisfy a margin call with respect to his pledged shares, Mr. Musk may be forced by one or more of the banking institutions to sell shares of Tesla common stock in order to remain within the margin limitations imposed under the terms of his loans. Any such sales could cause the price of our common stock to decline further.

Anti-takeover provisions contained in our governing documents, applicable laws and our convertible notes could impair a takeover attempt.

Our certificate of incorporation and bylaws afford certain rights and powers to our board of directors that could contribute to the delay or prevention of an acquisition that it deems undesirable. We are also subject to Section 203 of the Delaware General Corporation Law and other provisions of Delaware law that limit the ability of stockholders in certain situations to effect certain business combinations. In addition, the terms of our convertible notes require us to repurchase such notes in the event of a fundamental change, including a takeover of our company. Any of the foregoing provisions and terms that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could also affect the price that some investors are willing to pay for our common stock.

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

On April 18, 2017, our Chief Executive Officer elected to convert $10 million in aggregate principal of zero-coupon convertible senior notes due in 2020. As a result, we issued 33,333 shares of our common stock to our Chief Executive Officer in accordance with the specified conversion rate, and his zero-coupon convertible senior notes were deemed settled.

ITEM 3. DEFAULT UPON SENIOR SECURITIES

None.

ITEM 4. MINE SAFETY DISCLOSURES

Not applicable.

ITEM 5. OTHER INFORMATION

None.

ITEM 6. EXHIBITS

See Index to Exhibits at end of this Quarterly Report on Form 10-Q for the information required by this Item.

 

 

 

56


 

S IGNATURES

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 thereunto duly authorized.

 

 

 

Tesla, Inc.

 

 

 

Date: August 4, 2017

 

/s/ Deepak Ahuja

 

 

Deepak Ahuja

 

 

Chief Financial Officer

 

 

(Principal Financial Officer and

Duly Authorized Officer)

 

 

 

57


 

INDEX TO EXHIBITS

 

Exhibit

Number

 

 

 

Incorporated by Reference

 

Filed

Herewith

 

Exhibit Description

 

Form

 

File No.

 

Exhibit

 

Filing Date

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.1

 

Sixth Amendment to Credit Agreement, dated as of June 19, 2017, among the Registrant, Tesla Motors Netherlands B.V., the lenders party thereto and Deutsche Bank AG, New York Branch, as administrative agent and collateral agent

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.2

 

Fifteenth Amendment to the Amended and Restated Credit Agreement, dated as of February 13, 2017, by and among SolarCity Corporation, the Lenders party thereto and Bank of America, N.A., as administrative agent.

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.3

 

Sixteenth Amendment to the Amended and Restated Credit Agreement, dated as of May 5, 2017, by and among SolarCity Corporation, the Lenders party thereto and Bank of America, N.A., as administrative agent.

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.4

 

Required Group Agent Action No. 33, dated as of April 21, 2017, by and among by and among Megalodon Solar, LLC, as borrower, SolarCity Corporation, as limited guarantor, Bank of America, N.A., as collateral agent and administrative agent, and the group agents party thereto.

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.5

 

Required Group Agent Action No. 34, dated as of May 15, 2017, by and among by and among Megalodon Solar, LLC, as borrower, SolarCity Corporation, as limited guarantor, Bank of America, N.A., as collateral agent and administrative agent, and the group agents party thereto.

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.6

 

Required Group Agent Action No. 35, dated as of June 15, 2017, by and among by and among Megalodon Solar, LLC, as borrower, SolarCity Corporation, as limited guarantor, Bank of America, N.A., as collateral agent and administrative agent, and the group agents party thereto.

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.7

 

Required Group Agent Action No. 36, dated as of June 23, 2017, by and among by and among Megalodon Solar, LLC, as borrower, SolarCity Corporation, as limited guarantor, Bank of America, N.A., as collateral agent and administrative agent, and the group agents party thereto.

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  10.8

 

Required Group Agent Action No. 37, dated as of June 30, 2017, by and among by and among Megalodon Solar, LLC, as borrower, SolarCity Corporation, as limited guarantor, Bank of America, N.A., as collateral agent and administrative agent, and the group agents party thereto.

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  31.1

 

Rule 13a-14(a) / 15(d)-14(a) Certification of Principal Executive Officer

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  31.2

 

Rule 13a-14(a) / 15(d)-14(a) Certification of Principal Financial Officer

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

  32.1*

 

Section 1350 Certifications

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

101.INS

 

XBRL Instance Document

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

101.SCH

 

XBRL Taxonomy Extension Schema Document

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

101.CAL

 

XBRL Taxonomy Extension Calculation Linkbase Document

 

 

 

 

 

X

58


 

Exhibit

Number

 

 

 

Incorporated by Reference

 

Filed

Herewith

 

Exhibit Description

 

Form

 

File No.

 

Exhibit

 

Filing Date

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

101.DEF

 

XBRL Taxonomy Extension Definition Linkbase Document

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

101.LAB

 

XBRL Taxonomy Extension Label Linkbase Document

 

 

 

 

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

101.PRE

 

XBRL Taxonomy Extension Presentation Linkbase Document

 

 

 

 

 

X

 

*

Furnished herewith.

Confidential treatment has been requested for portions of this exhibit.

 

 

59

Exhibit 10.1

SIXTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT

TO SECURITY AGREEMENTS

AMENDMENT (this “ Amendment ”), dated as of June 19, 2017, in respect of: (a) the ABL Credit Agreement, dated as of June 10, 2015 (as amended, supplemented or otherwise modified prior to the date hereof, the “ Credit Agreement ”), among Tesla, Inc. (the “ Company ”, and together with each Wholly-Owned Domestic Subsidiary of the Company that becomes a U.S. Borrower pursuant to the terms of the Credit Agreement, collectively, the “ U.S. Borrowers ”), Tesla Motors Netherlands B.V. (“ Tesla B.V. ”, and together with each Wholly-Owned Dutch Subsidiary of Tesla B.V. that becomes a Dutch Borrower pursuant to the terms of the Credit Agreement, collectively, the “ Dutch Borrowers ”; and the Dutch Borrowers, together with the U.S. Borrowers, collectively, the “ Borrowers ”), the lenders from time to time party thereto (the “ Lenders ”), Deutsche Bank AG New York Branch, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) and as Collateral Agent, and the other agents party thereto; (b) the U.S. Security Agreement, dated as of June 10, 2015 (as amended, supplemented or otherwise modified prior to the date hereof, the “ U.S. Security Agreement ”), among the Company, each subsidiary of the Company from time to time party thereto and the Administrative Agent; and (c) the Dutch General Security Agreement, dated as of June 10, 2015 (as amended, supplemented or otherwise modified prior to the date hereof, the “ Dutch General Security Agreement ”), among Tesla B.V., each subsidiary of Tesla B.V. from time to time party thereto and the Administrative Agent.

RECITALS:

WHEREAS, the Company has requested that the available commitments under the Credit Agreement be increased from $1,200,000,000 to $1,825,000,000;

WHEREAS, pursuant to Section 13.12 of the Credit Agreement, the Credit Documents may be amended with the written consent of the Required Lenders and each Credit Party thereto;

WHEREAS, pursuant to Section 13.12 of the Credit Agreement, the definition of “Eligible Inventory” set forth in the Credit Agreement may be amended in a manner that increases the amount available for borrowing under the Credit Agreement with the written consent of the Supermajority Lenders and each Credit Party party to the Credit Agreement;

WHEREAS, each financial institution listed on Annex I hereto (each, an “Incremental Lender”) desires to provide new or increased Revolving Loan Commitments in an aggregate amount set forth opposite its name on Annex I hereto (for such Incremental Lender, its “Incremental Commitment”);

WHEREAS, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Morgan Stanley Senior Funding Inc., Citibank, N.A., RBC Capital Markets 1 , and Bank of America, N.A. are each acting as joint lead arrangers and bookrunners in respect of the Incremental Commitments; and

WHEREAS, the parties now wish to amend the Credit Agreement in certain respects.

 

1

RBC Capital Markets is the brand name for the capital markets activities of Royal Bank of Canada and its affiliates.

 


 

AGREEMENT:

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:

Section 1 . Defined Terms. Unless otherwise specifically defined herein, each term used herein (including in the recitals above) has the meaning assigned to such term in the Credit Agreement.

Section 2 . Amendments.

2.1 Amendments to Section 1.01 of the Credit Agreement .

2.1.1 The following defined terms shall be inserted into Section 1.01 of the Credit Agreement in appropriate alphabetical order:

Cash Contribution ” shall mean, as of any date, the sum of the Dutch Cash Contribution to the Dutch Borrowing Base and the U.S. Cash Contribution to the U.S. Borrowing Base.

Consent Letter ” shall mean that certain letter, dated as of April 28, 2017, between the Borrowers and the Required Lenders.

Consolidated Subsidiaries ” shall mean, as of any date, all Subsidiaries of the Company and SolarCity and its Subsidiaries, in each case to the extent the accounts of such Person are consolidated with the accounts of the Company as of such date in accordance with the principles of consolidation reflected in the audited financial statements most recently delivered in accordance with Section 9.01(b).  

Dutch Cash Contribution ” shall have the meaning provided in the definition of Dutch Borrowing Base.

Rental Accounts ” shall mean Accounts arising out of customer lease or rental agreements.

Rental Account Assets ” shall mean (i) Rental Accounts and related payment intangibles, chattel paper, electronic chattel paper, payments, rights to current and future lease or rental payments or residuals and similar rights to payment, in each case relating to Rental Accounts, together with interests in merchandise or goods the lease or rental of which give rise to such payment rights and proceeds, related contractual rights, guarantees, insurance proceeds, books and records, collections, proceeds of the foregoing and beneficial interests and the proceeds of beneficial interests in all of the foregoing, and (ii) Equity Interests in Tesla Finance Subsidiaries and the proceeds thereof.

Sixth Amendment ” shall mean that certain Sixth Amendment to the Credit Agreement and First Amendment to the Security Agreements, dated as of June 19, 2017, among the Borrowers, the other Credit Parties parties thereto, the Lenders party thereto and the Administrative Agent.

Sixth Amendment Effective Date ” shall mean the date on which the conditions precedent to effectiveness of the Sixth Amendment are satisfied, which date is June 19, 2017.  

 


 

SRECs ” shall mean renewable energy credits or certificates under any state renewable energy portfolio standard or federal renewable energy standard, pollution allowances, carbon credits and similar environmental allowances or credits and green tag or other reporting rights under Section 1605(b) of the Energy Policy Act of 1992 and any similar present or future federal, state, or local law or regulation, and international or foreign emissions trading program.

Tesla Finance Subsidiaries ” shall mean Tesla Finance, LLC and its Subsidiaries.

U.S. Cash Contribution ” shall have the meaning provided in the definition of U.S. Borrowing Base.

2.1.2 The definition of “ABL Priority Collateral” in Section 1.01 of the Credit Agreement shall be amended by (a) deleting the parenthetical “(other than Gigafactory Assets)” in clause (ii) thereof and (b) adding the parenthetical “(other than Rental Accounts)” after the word “Accounts” each time such word appears in clause (ii) thereof.

2.1.3 The definition of “Arranger” in Section 1.01 of the Credit Agreement shall be amended and restated in its entirety as follows:

Arranger ” shall mean (a) each of Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Goldman Sachs Bank USA, Morgan Stanley Senior Funding Inc. and Bank of America, N.A., in each case in its capacity as a joint lead arranger and bookrunner for the credit facilities hereunder (other than the Incremental Commitments provided pursuant to the Sixth Amendment) and any successor thereto and (b) each of Deutsche Bank Securities Inc., Citibank, N.A., Goldman Sachs Bank USA, Barclays Bank PLC, Morgan Stanley Senior Funding Inc., RBC Capital Markets 2 and Bank of America, N.A., in each case in its capacity as a joint lead arranger and bookrunner for the Incremental Commitments provided pursuant to the Sixth Amendment and any successor thereto.

2.1.4 The definition of “Company Factory” in Section 1.01 of the Credit Agreement shall be amended and restated in its entirety as follows:

Company Factory ” shall mean (i) the Fremont Factory, (ii) the Company’s manufacturing facility located in Lathrop, California, (iii) the Company’s manufacturing facility located at 5640 Executive Parkway SE, Grand Rapids, Michigan, (iv) the Company’s manufacturing facility located in Buffalo, New York, (v) the Company’s Gigafactory located at 1 Electric Avenue, Sparks, Nevada and (vi) any other manufacturing facilities established by the Company from time to time and located in the United States.

2.1.5 The definition of “Consolidated EBITDA” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before each instance the word “Subsidiaries” appears therein.

2.1.6 The definition of “Consolidated Interest Expense” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before each instance the word “Subsidiaries” appears therein.

 

2

RBC Capital Markets is the brand name for the capital markets activities of Royal Bank of Canada and its affiliates.

 


 

2.1.7 The definition of “Consolidated Net Income” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before each instance the word “Subsidiaries” or “Subsidiary” appears therein, except where the word “Subsidiaries” is preceded by the phrase “Wholly-Owned”.

2.1.8 The definition of “Consolidated Total Assets” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before each instance the word “Subsidiaries” appears therein.

2.1.9 The definition of “Dividend” in Section 1.01 of the Credit Agreement shall be amended by adding the text “the purchase, sale or” in the last sentence thereof, after the word “nor” therein.

2.1.10 The definition of “Dutch Borrowing Base” in Section 1.01 of the Credit Agreement shall be amended by (a) adding the parenthetical “(the “ Dutch Cash Contribution ”)” immediately after the words “Cash Equivalents” in clause (a)(i) thereof and (b) deleting the last sentence thereof in its entirety.  

2.1.11 The definition of “Dutch Subsidiary Guarantor” in Section 1.01 of the Credit Agreement shall be amended by adding the text “, any Tesla Finance Subsidiary” immediately after the text “Excluded Energy Storage Subsidiary” in the parenthetical therein.

2.1.12 The definition of “Eligible Accounts” in Section 1.01 of the Credit Agreement shall be amended by (a) adding the parenthetical “(other than Rental Accounts and Accounts in respect of the sale of solar panels or solar shingles)” immediately after the words “each Account” in the first line thereof and (b) deleting the text “other than, for the avoidance of doubt, a rental or lease basis” in the parenthetical in clause (d) thereof.

2.1.13 The definition of “Eligible Cash and Cash Equivalents” in Section 1.01 of the Credit Agreement shall be amended by deleting the text “currency consisting of U.S. Dollars, Euros or Cash Equivalents” and substituting in lieu thereof the text “currency consisting of U.S. Dollars or Euros, or any other Cash Equivalents, in each case”.

2.1.14 The definition of “Eligible Inventory” in Section 1.01 of the Credit Agreement shall be amended by deleting clause (v) thereof in its entirety and replacing it with the text “(v) is Inventory consisting of solar panels or solar shingles;”.

2.1.15 The definition of “Eligible WIP Inventory” in Section 1.01 of the Credit Agreement shall be amended and restated in its entirety as follows:

““ Eligible WIP Inventory ” shall mean all Eligible Inventory consisting of work-in-process (as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion and consistent with past practices); provided that Eligible WIP Inventory shall not include Eligible Inventory consisting of work-in-process related to the manufacturing of solar panels or solar shingles.”

2.1.16 The definition of “Fixed Charge Coverage Ratio” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before the uses of the word “Subsidiaries” in clauses (ii) and (iii) thereof.

 


 

2.1.17 The definition of “Fixed Charges” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before each instance the word “Subsidiaries” appears therein.

2.1.18 The definition of “Immaterial Subsidiary” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before each instance the word “Subsidiaries” appears therein.

2.1.19 The definition of “Material Subsidiary” in Section 1.01 of the Credit Agreement shall be amended by adding the word “Consolidated” before each instance the word “Subsidiaries” appears therein.

2.1.20 The definition of “Other Hedging Agreements” in Section 1.01 of the Credit Agreement shall be amended by adding the following sentence at the end thereof: “For the avoidance of doubt, “Other Hedging Agreements” shall not include any agreements, contracts or arrangements with respect to SRECs or the purchase, sale, transfer, assignment or other disposition thereof.”

2.1.21 The definition of “Securitization Related Assets” in Section 1.01 of the Credit Agreement shall be amended by (a) replacing the word “or” between “Securitization Subsidiary” and “Excluded Energy” with a “,” and (b) adding the text “or Tesla Finance Subsidiary” immediately prior to the “.” at the end thereof.

2.1.22 The definition of “Securitization Subsidiary” in Section 1.01 of the Credit Agreement shall be amended by adding the text “and any Tesla Finance Subsidiary” immediately after the text “Excluded Energy Storage Subsidiary” therein.

2.1.23 The definition of “Total Revolving Loan Commitment” in Section 1.01 of the Credit Agreement shall be amended and restated in its entirety as follows:

Total Revolving Loan Commitment ” shall mean, at any time, the sum of the Revolving Loan Commitments of each of the Lenders at such time. As of the Sixth Amendment Effective Date, the Total Revolving Loan Commitment is $1,825,000,000.

2.1.24 The definition of “Unfinanced Capital Expenditures” in Section 1.01 of the Credit Agreement shall be amended by (a) adding the word “Consolidated” before the word “Subsidiaries” therein and (b) deleting the proviso therein.

2.1.25 The definition of “U.S. Borrowing Base” in Section 1.01 of the Credit Agreement shall be amended by (a) adding the parenthetical “(the “ U.S. Cash Contribution ”) immediately after the words “Cash Equivalents” at the end of clause (a)(i) thereof, (b) replacing the number “30” with the number “25” in clause (iv) of the proviso following clause (b) thereof, and (c) deleting the last sentence thereof.

2.1.26 The definition of “U.S. Subsidiary Guarantors” in Section 1.01 of the Credit Agreement shall be amended by adding the text “, any Tesla Finance Subsidiary” immediately after the text “Excluded Energy Storage Subsidiary” therein.

2.1.27 The definition of “Wholly-Owned Subsidiary” in Section 1.01 of the Credit Agreement shall be amended by adding the text “and other than as used in the defined term

 


 

“Consolidated Net Income”” immediately after the text “anything herein to the contrary” in the proviso therein.

2.1.28 The following definitions set forth in Section 1.01 of the Credit Agreement shall be deleted in their entirety: “Cash Credit”, “Fifth Amendment Effective Date”, “Gigafactory” and “Gigafactory Assets”.

2.2 Amendment to Section 2.14(a)(iv) of the Credit Agreement . Section 2.14(a)(iv) of the Credit Agreement shall be amended and restated in its entirety as follows:

“(iv) the aggregate amount of all Incremental Commitments permitted to be provided pursuant to this Section 2.14 after the Sixth Amendment Effective Date shall not exceed in the aggregate $175,000,000, (or, if at the time of the making of Incremental Commitments pursuant to this Section 2.14, the excess of (x) the Borrowing Base at such time, minus (y) the Cash Contribution to the Borrowing Base at such time, minus (z) the Total Revolving Loan Commitments at such time (prior to giving effect to such Incremental Commitments) is greater than the amount that would otherwise be permitted by this clause (iv) at such time, such greater amount),”.

2.3 Amendment to Dollar Thresholds .   The Credit Agreement shall be amended such that Section 2.14(e) of the Credit Agreement shall apply to the increase in the Total Revolving Loan Commitment effected pursuant to this Amendment as if such increase were a provision of Incremental Commitments effected pursuant to Section 2.14 of the Credit Agreement.

2.4 Amendments to Section 2.14(f) of the Credit Agreement . Section 2.14(f) of the Credit Agreement shall be deleted in its entirety.

2.5 Amendment to Section 8.01 of the Credit Agreement. Section 8.01 of the Credit Agreement shall be amended by adding the text “that is a member state of the European Union” immediately prior to the “.” at the end thereof.

2.6 Amendment to Section 9.01(a) of the Credit Agreement. Section 9.01(a) of the Credit Agreement shall be amended and restated in its entirety as follows:

“(a) Quarterly Financial Statements .  Within 45 days after the close of each of the first three fiscal quarters in each fiscal year of the Company, (i) the consolidated balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income and statement of cash flows for such fiscal quarter and for the elapsed portion of the fiscal year ended with the last day of such fiscal quarter, in each case setting forth comparative figures for the corresponding fiscal quarter in the prior fiscal year, all of which shall be certified by an Authorized Officer of the Company that they fairly present in all material respects in accordance with GAAP the financial condition of the Company and its Consolidated Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes and (ii) management’s discussion and analysis meeting the requirements of Item 303 of Regulation S-K under the Securities Act as set forth in the Quarterly Report on Form 10-Q statement of the Company filed with the SEC for such fiscal quarter (it being understood and agreed that such management’s discussion and analysis shall relate to the Company and its Consolidated Subsidiaries, provided that if the Company no longer files such Form 10‑Q with the SEC, the Company shall deliver to the Administrative Agent a statement containing such management’s discussion and analysis in a form that would otherwise be required in such Form 10‑Q.”

 


 

2.7 Amendment to Section 9.01(b) of the Credit Agreement. Section 9.01(b) of the Credit Agreement shall be amended and restated in its entirety as follows:

“(b) Annual Financial Statements .  Within 90 days after the close of each fiscal year of the Company, (i) the consolidated balance sheet of the Company and its Consolidated Subsidiaries as at the end of such fiscal year and the related consolidated statements of income and statement of cash flows for such fiscal year, setting forth comparative figures for the preceding fiscal year and audited by PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing, accompanied by an opinion of such accounting firm (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as to scope of audit), and (ii) management’s discussion and analysis meeting the requirements of Item 303 of Regulation S-K under the Securities Act as set forth in the Annual Report on Form 10-K of the Company filed with the SEC for such fiscal year (it being understood and agreed that such management’s discussion and analysis shall relate to the Company and its Consolidated Subsidiaries, provided that if the Company no longer files such Form 10-K with the SEC, the Company shall deliver to the Administrative Agent a statement containing such management’s discussion and analysis in a form that would otherwise be required in such Form 10-K.”

2.8 Amendment to Section 9.12(d) of the Credit Agreement . Section 9.12(d) of the Credit Agreement shall be amended by adding the text “, a Tesla Finance Subsidiary” immediately before the text “or an Excluded Energy Storage Subsidiary)” each time such text appears therein.

2.9 Amendment to Section 9.12(f) of the Credit Agreement . Section 9.12(f) of the Credit Agreement shall be amended and restated in its entirety as follows:

“(f) If, as of the last day of any fiscal quarter of the Company, the aggregate consolidated assets (excluding intercompany assets) of all Immaterial Subsidiaries exceeds 10.0% of Consolidated Total Assets (as set forth in the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP) or the aggregate consolidated total revenues of all Immaterial Subsidiaries exceeds 10.0% of the consolidated total revenues of the Company and its Consolidated Subsidiaries (as set forth in the most recent income statement of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP) then, within 45 days after the end of any such fiscal quarter (or, if such fiscal quarter is the fourth fiscal quarter of the Company, within 90 days thereafter) (as either such date may be extended by the Administrative Agent in its sole discretion)), the Company shall cause one or more Immaterial Subsidiaries to take the actions specified in Section 9.12(d) on the same basis that any newly formed or acquired Wholly-Owned Domestic Subsidiary of Tesla B.V. or any Wholly-Owned Dutch Subsidiary of the Company would have to take; provided, however, such actions shall only be required to the extent that, after giving effect to such actions, the aggregate consolidated assets (excluding intercompany assets) of all Immaterial Subsidiaries do not exceed 10.0% of Consolidated Total Assets and the aggregate consolidated total revenues of all Immaterial Subsidiaries do not exceed 10.0% of consolidated total revenues of the Company and its Consolidated Subsidiaries (as set forth in the most recent income statement of the Company and its Consolidated Subsidiaries delivered to the Lenders pursuant to this Agreement and computed in accordance with GAAP).”

2.10 Amendment to Section 9.12(g) of the Credit Agreement . Section 9.12(g) of the Credit Agreement shall be amended by adding the text “, a Tesla Finance Subsidiary” immediately before the text “or an Excluded Energy Storage Subsidiary)”, each time such text appears therein.

 


 

2.11 Amendment to Section 9.14 of the Credit Agreement . Section 9.14 of the Credit Agreement shall be amended by adding the text “that is a member state of the European Union” immediately prior to the “.” at the end thereof.

2.12 Amendment to Section 10.01(v) of the Credit Agreement . Section 10.01(v) of the Credit Agreement shall be amended and restated in its entirety as follows:

“(v) Liens on Energy Storage Assets and related assets, in each case securing Indebtedness permitted by Section 10.04(r);”

2.13 Amendment to Section 10.01(cc) of the Credit Agreement . Section 10.01(cc) of the Credit Agreement shall be amended by deleting the word “and” at the end thereof.

2.14 Amendment to Section 10.01(dd) of the Credit Agreement . Section 10.01(dd) of the Credit Agreement shall be amended by deleting the “.” at the end thereof and replacing it with the text “; and”.

2.15 Amendment to Section 10.01 of the Credit Agreement . Section 10.01 of the Credit Agreement shall be amended by adding the following new clause (ee) at the end thereof: “(ee) Liens on Rental Account Assets and related assets, in each case securing Indebtedness permitted by Section 10.04(x).”.

2.16 Amendment to Section 10.03(i) of the Credit Agreement . Section 10.03(i) of the Credit Agreement shall be amended by adding the text “or otherwise terminate or unwind” immediately after the word “repurchase” therein.

2.17 Amendment to Section 10.04(m) of the Credit Agreement . Section 10.04(m) of the Credit Agreement shall be amended by replacing the dollar amount “$100,000,000” with the dollar amount “$200,000,000” therein.

2.18 Amendment to Section 10.04(r) of the Credit Agreement . Section 10.04(r) of the Credit Agreement shall be amended by (a) deleting the text “Gigafactory Assets or” in each instance such text appears therein, (b) deleting the “,” immediately after the text “Energy Storage Assets” in the proviso therein, and (c) deleting the text “in each case” in the proviso therein.

2.19 Amendment to Section 10.04(v) of the Credit Agreement . Section 10.04(v) of the Credit Agreement shall be amended by deleting the word “and” at the end thereof.

2.20 Amendment to Section 10.04(w) of the Credit Agreement . Section 10.04(w) of the Credit Agreement shall be amended by deleting the “.”at the end thereof and replacing it with the text “; and”.

2.21 Amendment to Section 10.04 of the Credit Agreement . Section 10.04 of the Credit Agreement shall be amended by adding the following new clause (x) at the end thereof:

“(x) Indebtedness of a Tesla Finance Subsidiary secured by a Lien on Rental Account Assets; provided that (i) such Indebtedness shall not be secured by any assets other than Rental Account Assets and other related assets, such as chattel paper and payment intangibles, that in the reasonable opinion of the Company are customary for financing transactions related to such assets, (ii) no portion of such Indebtedness shall be guaranteed by the Company or any of its Subsidiaries (other than a Tesla Finance Subsidiary), (iii) there shall be no recourse or obligation

 


 

to the Company or any of its Subsidiaries (other than a Tesla Finance Subsidiary) whatsoever and (iv) none of the Company nor any of its Subsidiaries (other than a Tesla Finance Subsidiary) shall have provided, either directly or indirectly, any other credit support of any kind in connection with such Indebtedness (other than a pledge of the Equity Interests of a Tesla Finance Subsidiary).”

2.22 Amendment to Section 10.06(g) of the Credit Agreement . Section 10.06(g) of the Credit Agreement shall be amended and restated in its entirety as follows:

“(g) transactions solely among the Company and its Subsidiaries (including, for purposes of this Section 10.06(g), SolarCity and its Subsidiaries if and for so long as SolarCity is a Subsidiary (as such term is defined herein without giving effect to the proviso in the first sentence of such definition)) in the ordinary course of business and otherwise not prohibited by the terms of the Credit Documents; and”

2.23 Amendments to Section 10.06(h) of the Credit Agreement . Section 10.06(h) of the Credit Agreement shall be amended by (a) deleting clause (i) thereof in its entirety, and (b) renumbering the text “(ii)” therein as “(i)” and the text “(iii)” therein as “(ii)”.

2.24 Amendments to Section 10.09 of the Credit Agreement . Section 10.09 of the Credit Agreement shall be amended by (a) replacing the text “or (dd)” with the text “, (dd) or (ee)” in clause (viii) thereof, (b) replacing the text “or 10.04(s),” with the text “, 10.04(s) or 10.04 (x)” in clause (ix)(B) thereof and (c) adding the text “or 10.04(x)” immediately after the text “Section 10.04(r)” in the proviso to clause (ix)(B) thereof.

2.25 Amendment to Section 10.14 of the Credit Agreement . Section 10.14 of the Credit Agreement shall be amended and restated in its entirety as follows:

“10.14 SolarCity . Notwithstanding anything to the contrary contained herein, until the date that SolarCity is a “Subsidiary” for all purposes of this Agreement:

(a) the Company and its Subsidiaries shall not (subject to the Consent Letter) guarantee or otherwise become directly liable for any Indebtedness of SolarCity or any of its Subsidiaries;

(b) the Company and its Subsidiaries shall not permit SolarCity or any of its Subsidiaries to guarantee or otherwise become directly liable for the Indebtedness of the Company or its Subsidiaries; and

(c) SolarCity and its Subsidiaries shall not create, incur or assume any syndicated credit facilities, bonds or convertible notes other than:

(i) any such Indebtedness that (A) is a renewal, extension, exchange, replacement or refinancing of Indebtedness outstanding on or (B) is Indebtedness that may be incurred pursuant to commitments existing on, the Sixth Amendment Effective Date (and provided that (x) the aggregate principal amount of such renewal, extension, exchange, replacement or refinancing, or commitments in respect thereof (or if incurred with original issue discount, the sum of the aggregate issue price and any accreted principal amount) does not exceed the aggregate principal amount (or if incurred with original issue discount, the aggregate issue price plus any accreted amount) of the Indebtedness to be renewed, extended, exchanged, replaced or refinanced (plus the sum of (1) accrued and unpaid interest thereon, (2) any prepayment or exchange premium and (3)

 


 

customary premium, fees and expenses relating to such renewal, extension, exchange, replacement, refinancing or issuance) and (y) the terms of the Indebtedness provided in any such renewal, extension, exchange, replacement or refinancing (excluding pricing, fees, rate floors and optional prepayment or redemption terms), taken as a whole, are no more favorable to the lenders or holders of such Indebtedness than those applicable to the Indebtedness to be renewed, extended, exchanged, replaced or refinance d,

(ii) Indebtedness incurred by any special purpose Subsidiary of SolarCity so long as (A) there shall be no recourse or obligation to the Company or any of its Subsidiaries or SolarCity or any of its Subsidiaries (other than any special purpose Subsidiary of SolarCity) whatsoever other than (solely in respect of SolarCity and its Subsidiaries) pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with such Indebtedness that in the reasonable opinion of the Company are customary for such transactions and (B) none of the Company nor any of its Subsidiaries nor SolarCity nor any of its Subsidiaries (other than any special purpose Subsidiary of SolarCity) shall have provided, either directly or indirectly, any other credit support of any kind in connection with such Indebtedness, other than as set forth in clause (A) above, and

(iii) other Indebtedness in an aggregate principal amount at any time outstanding not to exceed $25,000,000.”

2.26 Amendment to Schedule 1.01(a) of the Credit Agreement. Schedule 1.01(a) to the Credit Agreement shall be amended and restated in its entirety as set forth on Schedule 1 hereto.

Section 3. Amendment to the U.S. Security Agreement . Section 1.1(b)(vii) of the U.S. Security Agreement shall be amended by deleting the text “Gigafactory Assets” therein, and replacing it with the text “Rental Account Assets”.

Section 4. Amendment to the Dutch General Security Agreement . Section 1.1(b)(vii) of the Dutch General Security Agreement shall be amended by deleting the text “Gigafactory Assets” therein, and replacing it with the text “Rental Account Assets”.

Section 5. Incremental Lenders . Each Incremental Lender (i) confirms that it is an Eligible Transferee, (ii) confirms that it has received a copy of the Credit Agreement and the other Credit Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to become a Lender under the Credit Agreement, (iii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement and the other Credit Documents, (iv) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent and the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto and (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement and the other Credit Documents are required to be performed by it as a Lender.

 


 

Section 6. Conditions. This Amendment shall become effective on the date on which the following conditions precedent have been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “ Amendment Effective Date ”):

(a) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by the Credit Parties, the Administrative Agent, the Supermajority Lenders, each Incremental Lender and the Swingline Lender.

(b) All fees required to be paid to the Administrative Agent and the Lenders in connection herewith, accrued reasonable and documented out-of-pocket costs and expenses (including, to the extent invoiced in advance, reasonable legal fees and out-of-pocket expenses of counsel) and other compensation due and payable to the Administrative Agent, the Lenders and the Incremental Lenders on or prior to the Amendment Effective Date shall have been paid.

(c) Each of the representations and warranties made by the Credit Parties in or pursuant to the Credit Agreement or in or pursuant to the other Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified or subject to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects) on and as of the Amendment Effective Date as if made on and as of such date except for such representations and warranties expressly stated to be made as of an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).

(d) No Default or Event of Default shall exist on the Amendment Effective Date.

(e) The Administrative Agent shall have received an officer’s certificate from an Authorized Officer of the Company and dated as of the Amendment Effective Date, certifying that each condition set forth in Sections 3(c) and (d) hereof have been satisfied on and as of the Amendment Effective Date.

(f) The Administrative Agent shall have received from Wilson Sonsini Goodrich & Rosati, P.C., special New York counsel to the Credit Parties, an opinion in form and substance reasonably satisfactory to the Administrative Agent addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Amendment Effective Date covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

(g) The Administrative Agent shall have received from DLA Piper Nederland N.V., special Dutch counsel to the Dutch Credit Parties, an opinion in form and substance reasonably satisfactory to the Administrative Agent addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Amendment Effective Date covering such matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

(h) The Administrative Agent shall have received a certificate from each Credit Party, dated the Amendment Effective Date, signed by an Authorized Officer of such Credit Party (or, with respect to Tesla B.V., its directors), and, if signed by an Authorized Officer of such Credit Party, attested to by another Authorized Officer of such Credit Party, in the form of Exhibit E-2 to the Credit Agreement (or such other form reasonably acceptable to the Administrative Agent) with appropriate insertions, together with copies of the certificate or articles of incorporation and by-laws (or other equivalent organizational documents relating to any Dutch Credit Party), as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such certificate.

(i) The Administrative Agent shall have received a good standing certificate (or equivalent) for the Company.

 


 

Section 7.   Representations and Warranties, etc .  The Borrowers hereby confirm, reaffirm and restate that each of the representations and warranties made by any Credit Party in the Credit Documents is true and correct in all material respects on and as of the Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects).  The Borrowers represent and warrant that, immediately after giving effect to the occurrence of the Amendment Effective Date, no Default or Event of Default has occurred and is continuing.  The Borrowers represent and warrant that each Credit Party (i) has the Business power and authority to execute, deliver and perform the terms and provisions of this Amendment and has taken all necessary Business action to authorize the execution, delivery and performance by such Credit Party thereof and (ii) has duly executed and delivered this Amendment, and that this Amendment constitutes a legal, valid and binding obligation of the Borrowers enforceable against each Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

Section 8. Reaffirmation . Each Guarantor and each Credit Party hereby agrees that (i) all of its Obligations under the Credit Documents shall remain in full force and effect on a continuous basis after giving effect to this Amendment and (ii) each Credit Document is ratified and affirmed in all respects.

Section 9. Governing Law. This Amendment and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflicts of law principles that would result in the application of any law other than the law of the State of New York).

Section 10 . Effect of This Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of any Lender or Agent under the Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.  Nothing herein shall be deemed to entitle any party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Credit Document in similar or different circumstances.  

Section 11. Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  Delivery of an executed signature page of this Amendment by facsimile transmission or electronic transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof.

Section 12 . Miscellaneous. This Amendment shall constitute a Credit Document for all purposes of the Credit Agreement. The Borrowers shall pay all reasonable fees, costs and expenses of the Administrative Agent incurred in connection with the negotiation, preparation and execution of this Amendment and the transactions contemplated hereby.

[ remainder of page intentionally left blank ]

 


 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.

 

 

 

By:

/s/ Deepak Ahuja

Name:

Deepak Ahuja

Title:

Chief Financial Officer

 

 

TESLA MOTORS NETHERLANDS B.V.

 

By:

/s/ Marc Cerda

Name:

Marc Cerda

Title:

Managing Director

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

as Administrative Agent, Collateral Agent, Swingline Lender and a Lender

 

By:

/s/ Philip Saliba

Name:

Philip Saliba

Title:

Director

 

 

By:

/s/ Stephen R. Lapidus

Name:

Stephen R. Lapidus

Title:

Director

 

 


GOLDMAN SACHS BANK USA,

as a Lender and an Incremental Lender

 

By:

/s/ Rebecca Kratz

Name:

Rebecca Kratz

Title:

Authorized Signatory

 

 

BARCLAYS BANK PLC,

as an Incremental Lender

 

By:

/s/ Ritam Bhalla

Name:

Ritam Bhalla

Title:

Director

 

 

CITIBANK, N.A.

as an Issuing Lender, a Lender, and an Incremental Lender

 

By:

/s/ David G. Foster

Name:

David G. Foster

Title:

Vice President

 

 

[Sixth Amendment – Signature Page]


 

MORGAN STANLEY SENIOR FUNDING, INC.,

as a Lender

 

By:

/s/ Lisa Hanson

Name:

Lisa Hanson

Title:

Authorized Signatory

 

MORGAN STANLEY Bank, N.A.,

as an Incremental Lender

 

By:

/s/ Lisa Hanson

Name:

Lisa Hanson

Title:

Authorized Signatory

 

ROYAL BANK OF CANADA,

as a Lender and an Incremental Lender

 

By:

/s/ Edward D. Herko

Name:

Edward D. Herko

Title:

Authorized Signatory

 

BANK OF AMERICA, N.A.,

as an Issuing Lender, a Lender, and an Incremental Lender

 

By:

/s/ Robert M. Dalton

Name:

Robert M. Dalton

Title:

Senior Vice President

 

WELLS FARGO BANK, N.A.,

as a Lender

 

By:

/s/ Krista Mize

Name:

Krista Mize

Title:

Authorized Signatory

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

as a Lender

 

By:

/s/ Vipul Dhadda

Name:

Vipul Dhadda

Title:

Authorized Signatory

 

 

By:

/s/ D. Andrew Maletta

Name:

D. Andrew Maletta

Title:

Authorized Signatory

 

 


 

ANNEX I

Incremental Lenders; Incremental Commitments

 

Incremental Lender

Incremental Commitments

DEUTSCHE BANK AG NEW YORK BRANCH

$77,500,000

GOLDMAN SACHS BANK USA

$75,000,000

BARCLAYS BANK PLC

$75,000,000

CITIBANK, N.A.

$75,000,000

MORGAN STANLEY BANK, N.A.

$75,000,000

ROYAL BANK OF CANADA

$172,500,000

BANK OF AMERICA, N.A.

$75,000,000

TOTAL

$625,000,000

 

 


 

Schedule 1

Schedule 1.01(a)

Lenders; Commitments

Revolving Loan Commitments

 

Lender

Revolving Loan Commitment

DEUTSCHE BANK AG NEW YORK BRANCH

$225,000,000

GOLDMAN SACHS BANK USA

$250,000,000

BARCLAYS BANK PLC

$250,000,000

CITIBANK, N.A.

$222,500,000

MORGAN STANLEY SENIOR FUNDING, INC.

$147,500,000

MORGAN STANLEY BANK, N.A.

$75,000,000

ROYAL BANK OF CANADA

$197,500,000

BANK OF AMERICA, N.A.

$185,000,000

JPMORGAN CHASE BANK, N.A.

$147,500,000

WELLS FARGO BANK, NATIONAL ASSOCIATION

$100,000,000

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

$25,000,000

TOTAL

$1,825,000,000

 

 

Exhibit 10.2

FIFTEENTH AMENDMENT TO
THE AMENDED AND RESTATED
CREDIT AGREEMENT

THIS FIFTEENTH AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment ”), dated as of January 31, 2017 (the “ Amendment Effective Date ”), is by and among SOLARCITY CORPORATION , a Delaware corporation (the “ Borrower ”), the Lenders party hereto and BANK OF AMERICA, N.A. , as administrative agent (in such capacity, the “ Administrative Agent ”).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.

W I T N E S S E T H

WHEREAS , the Borrower, the Subsidiaries of the Borrower from time to time party thereto (the “ Guarantors ”), certain banks and financial institutions from time to time party thereto as lenders (the “ Lenders ”), the Administrative Agent, and Bank of America Merrill Lynch, as sole lead arranger and sole book manager, are parties to that certain Amended and Restated Credit Agreement dated as of November 1, 2013 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “ Credit Agreement ”);

WHEREAS, the Loan Parties have requested that the Supermajority Lenders amend certain additional provisions of the Credit Agreement; and

WHEREAS , the Supermajority Lenders are willing to make such amendments to the Credit Agreement, in accordance with and subject to the terms and conditions set forth herein, it being agreed that, except as expressly amended hereby, the terms and provisions of the Credit Agreement and each other Loan Document (including all collateral and guaranty requirements thereof) remain in effect without modification.

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

Article I.
AMENDMENTS TO CREDIT AGREEMENT

Section 1.01 New Definitions .  The following definitions are hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order:

“‘ Eligible Solar Loan Financing Commitment Amount ’ means, for each Solar Loan Lender, the sum of (a) such Solar Loan Lender’s Solar Loan Financing Commitment Amount, less (b) the product of (i) such applicable Solar Loan Financing Commitment Amount and (ii) the applicable Solar Loan Program Rate.”

“‘ Solar Loan Customer ’ means the purchaser of a PV System from Borrower pursuant to a sale agreement entered into between such purchaser and Borrower, where the purchase price for such PV System is to be financed by a Solar Loan Lender by a Solar Loan Financing.”

 


 

“‘ Solar Loan Financing means indebtedness for borrowed money incurred by a Solar Loan Customer where (i) such indebtedness is provided by a Solar Loan Lender; (ii) such indebtedness is incurred only with respect to Projects purchased from Borrower by a Solar Loan Customer under a sale agreement ; and (iii) no Loan Party guaranties the payment of debt service for such indebtedness.”

“‘ Solar Loan Financing Approval ’ means a written consent from the Supermajority Lenders, as acknowledged by the Borrower and the Administrative Agent, which confirms the Supermajority Lenders’ approval of each Solar Loan Lender and the related Solar Loan Financing Commitment Cap for each such Solar Loan Lender; each new Solar Loan Financing Approval that is issued will be deemed to replace all previous Solar Loan Financing Approvals in their entirety (such that only one Solar Loan Financing Approval will be in effect at a time.”

“‘ Solar Loan Financing Commitment ’ means, as of a given date of determination and with respect to a given Solar Loan Lender, such Solar Loan Lender’s commitment, pursuant to a Solar Loan Program Agreement, to provide Solar Loan Financings during the relevant Solar Loan Financing Commitment Period.”

“‘ Solar Loan Financing Commitment Amount ’ means, with respect to a given Solar Loan Program Agreement and the related Solar Loan Lender, the aggregate Dollar amount of such Solar Loan Lender’s Solar Loan Financing Commitment.”

“‘ Solar Loan Financing Commitment Cap ’ means, with respect to any Solar Loan Lender, the maximum Solar Loan Financing Commitment amount approved by the Supermajority Lenders, as evidenced by the Solar Loan Financing Approval.”

“‘ Solar Loan Financing Commitment Period ’ means, as of a given date of determination, a period of three contiguous calendar months, commencing with the calendar month in which such date of termination occurs or such other period as approved by the Supermajority Lenders pursuant to the Solar Loan Financing Approval; provided, however, that for any Solar Loan Financing Commitment Period with a determination date falling prior to February 15, 2017, the three contiguous calendar months for such Solar Loan financing Commitment Period shall be the months of February 2017, March 2017 and April 2017.”

“‘ Solar Loan Lender ’ means any Person approved by the Supermajority Lenders, pursuant to the Solar Loan Financing Approval, to become a Solar Loan Lender and provide a Solar Loan Financing.”

“‘ Solar Loan Program Agreement ’ means an arrangement between Borrower and a given Solar Loan Lender pursuant to which Borrower may refer Solar Loan Customers to such Solar Loan Lender and such Solar Loan Lender commits to provide Solar Loan Financings to Solar Loan Customers, subject to the terms therein.”

“‘ Solar Loan Program Rate ’ means, as of a given date of determination and with respect to a given Solar Lender, the applicable program fee applied to each Solar Loan

2


 

Financing by such Solar Loan Lender in accordance with the terms of the Solar Loan Program Agreement.”

Section 1.02 Amendments to Section 1.01 . The following definitions set forth in Section 1.01 of the Credit Agreement are hereby amended and restated in their entirety to read as follows:

“‘ Available Take-Out ’ means, as of a given date of determination, the aggregate of (i) each Tax Equity Investor’s Tax Equity Commitment less all amounts advanced by such Tax Equity Investor under such Tax Equity Commitment, (ii) each lender’s Backlever Financing Commitment, less all amounts advanced by such lender under such Backlever Financing, and (iii) the lesser of (A) the sum of each Solar Loan Lender’s Eligible Solar Loan Financing Commitment Amount and (B) the aggregate amount of each Solar Loan Lender’s Solar Loan Financing Commitment Cap.”

“‘ Loan Documents ’ means, collectively, (a) this Agreement, (b) the Revolving Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) each Joinder Agreement, (h) the Payment Direction Letters, (i) the Solar Loan Financing Approval, and (j) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14 (but specifically excluding any Secured Hedge Agreement or any Secured Cash Management Agreement).

“‘ Payment Direction Letter’ means one or more payment direction letters from Borrower or each Excluded Subsidiary that is wholly-owned, directly or indirectly, by Borrower, which confirms that certain proceeds of Available Take-Out from Tax Equity Investors, certain cash flows from Host Customer Agreements , certain proceeds from Backlever Financing, System Refinancing and Solar Bonds Financing and advances from Solar Loan Financings (all as more specifically described therein) , in each case, received by Borrower or such Excluded Subsidiary, as applicable, will be distributed directly to a Borrower account which is subject to a Qualifying Control Agreement.

“‘ Project Back-Log ’ means, as of a given date of determination, the aggregate of the PV System Values set forth in the Backlog Spreadsheet for each PV System that the Borrower has contracted to install , or that has been contracted to be installed pursuant to a Developer Project ; provided, however, that “Project Back-Log” shall not include the PV System Values set forth in the Backlog Spreadsheet corresponding to any PV Systems that have been Tranched pursuant to a Tax Equity Commitment or financed pursuant to a Solar Loan Financing.”

Section 1.03 Amendments to Section 1.01 .

(a) The definition of “Eligible Project Back-Log” is hereby amended by deleting sub-section (e) in its entirety and replacing it with the following text:

“(e) Projects which are purchased in cash by a customer, as of the date of payment (including Projects where payment by (or on behalf of) a customer is made as part of the funding of a Solar Loan Financing);”

3


 

(b) The definition of “Eligible Take-Out” is hereby amended by deleting sub-section (c) in its entirety and replacing it with the following text :

“(c) the Available Take-Out is obtained from any facility other than (i) a Tax Equity Commitment under a Partnership Flip Structure, Sale-Leaseback Structure or Inverted Lease Structure, (ii) a Backlever Financing Commitment, (iii) a Solar Loan Financing Commitment, or (iv) other financings acceptable to Administrative Agent and Required Lenders;”

(c) The definition of “Eligible Take-Out” is hereby amended by deleting sub-section (e) in its entirety and replacing it with the following text:

“(e) Tax Equity Commitments, Backlever Financing Commitments or Solar Loan Financing Commitments expressly deemed ineligible by the Administrative Agent pursuant to Section 2.01(b)(ii) or Section 6.03(b) herein;”

(d) The definition of “Eligible Take-Out” is hereby amended by adding the word “and” after sub-section (f) and by inserting new clause (g) which shall read as follows:

“(g) Any Available Take-Out relating to a Solar Loan Program Agreement where (i) a default under such Solar Loan Program Agreement has occurred and is continuing, (ii) a termination or suspension of the financing commitment thereunder has occurred and is continuing, or (iii) the relevant Solar Loan Lender has elected to permanently reject all customer credit applications for new Solar Loan Financings.”

(e) The definition of “Material Contract” is hereby amended by deleting the word “and” immediately before sub-clause (ii) and by adding the following new clause (iii) immediately before the period (“.”) at the end thereof:  “, and (iii) each Solar Loan Program Agreement”.

(f) The definition of “Permitted Dispositions” is hereby amended by adding “and sales of Projects to customers whose purchase of such Projects is financed through a Solar Loan Financing” immediately after the phrase “(including any warranties arising in connection therewith)” in sub-clause (a)(i).

(g) The definition of “System Refinancing” is hereby amended by replacing the phrase “Backlever Financings” with “Backlever Financing Commitment” in sub-clause (i)(x).

(h) The definition of “Tranching” is hereby amended by adding “or ‘Tranched’” after the word ‘“Tranching’”.

Section 1.04 Amendment to Section 2.01 .  Sub-clause (b)(ii) of Section 2.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(ii) Eligible Take-Out .  During the Availability Period, within five (5) Business Days after the closing of a new Tax Equity Commitment or Backlever

4


 

Financing Commitment or receipt of a Solar Loan Financing Commitment (including, without limitation, an increase to a previously approved Solar Loan Financing Commitment), Borrower shall provide to counsel to the Administrative Agent (subject to the restrictions set forth in Section 6.10) (i) a copy of the operative documents for such new Tax Equity Commitment , Backlever Financing Commitment or Solar Loan Financing Commitment , as the case may be, (ii) a written summary of operative terms of such Tax Equity Commitment , Backlever Financing Commitment or Solar Loan Financing Commitment and (iii) a joinder to the Payment Direction Letter executed by each of the direct or indirect Subsidiaries of Borrower formed or acquired in connection with such Tax Equity Commitment or Backlever Financing Commitment.  Counsel to the Administrative Agent shall review such documents and report its results to Administrative Agent.  If based on either such counsel’s report to the Administrative Agent or a field examination conducted in accordance with Section 6.10, the Administrative Agent determines, after consulting with Borrower, that in the Administrative Agent’s commercially reasonable judgment, the eligibility criteria for Eligible Take-Out are to be revised, the components of Eligible Take-Out shall be deemed revised accordingly and the Borrowing Base shall be calculated thereafter using such revised definition.  If Borrower does not receive notice from the Administrative Agent that any new Tax Equity Commitment , Backlever Financing Commitment or Solar Loan Financing Commitment is to be ineligible under this clause (b)(ii) within 60 days after the delivery of the applicable documents as set forth above, such Tax Equity Commitment , Backlever Financing Commitment or Solar Loan Financing Commitment, as the case may be, shall be deemed eligible subject to the then existing eligibility conditions set forth herein.”

Section 1.05 Amendments to Section 6.03 .  

(a) Sub-clause (b)(iv) of Section 6.03 of the Credit Agreement is hereby amended by inserting the phrase “, Solar Loan Financing Commitments” after the phrase “Backlever Financing” and by removing the word “or” after the semi-colon (“;”).

(b) Sub-clause (b)(v) of Section 6.03 of the Credit Agreement is hereby amended by replacing the period (“.”) at the end thereof with the following text:  “; or”.

(c) Clause (b) of Section 6.03 of the Credit Agreement is hereby amended by inserting a new sub-clause (vi) at the end thereof which shall read as follows:

“(vi) (x) the occurrence, and continuation beyond any applicable cure period, of (1) a default under a Solar Loan Program Agreement, (2) a termination or suspension of the financing commitment under a Solar Loan Program Agreement, (3) a Solar Loan Lender’s election to permanently reject all customer credit applications for new Solar Loan Financings under a Solar Loan Program Agreement, (4) any decrease in, or rescindment of, a Solar Loan Financing Commitment or (5) any event that may lead to such default, termination or suspension, election or decrease or rescindment, (y) to the knowledge of Borrower, of any material change (A) in the corporate or ownership structure of any Solar Loan Lender, or (B) in the financial condition or creditworthiness

5


 

of any Solar Loan Lender; or (z) any material amendment or material modification to a Solar Loan Program Agreement .”

(d) Section 6.03 of the Credit Agreement is hereby amended by deleting the last paragraph thereof and replacing it with the following text:

“Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and to the extent applicable and not including any notice provided pursuant to clause (iv) above, stating what action the Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. With respect to Section 6.03(b)(iv) above, the requirements set forth above in this paragraph shall be satisfied with respect to (I) Tax Equity Commitments, Backlever Financings and Solar Loan Financing Commitments, by the satisfaction of the requirements set forth in Section 2.01(b)(ii) and (II) Solar Bonds Financings, by providing a listing of such agreements in the Compliance Certificate.  In addition, with respect to the occurence of any event of condition specified in Section 6.03(b)(vi) above, Borrower shall confirm that the decrease in or exclusion of such Solar Loan Financing Commitment from the calculation of Available Take-Out does not result in a Borrowing Base Deficiency.  With respect to Section 6.03(b)(iv)(z) above, Borrower shall provide to counsel to the Administrative Agent (subject to the restrictions set forth in Section 6.10) a copy of such amendment or document evidencing such material modification, as the case may be.  Counsel to the Administrative Agent shall review such documents and report its results to Administrative Agent.  If based on such counsel’s report to the Administrative Agent, the Administrative Agent determines, after consulting with Borrower, that in the Administrative Agent’s commercially reasonable judgment, the eligibility criteria for Eligible Take-Out are to be revised, the components of Eligible Take-Out shall be deemed revised accordingly and the Borrowing Base shall be calculated thereafter using such revised definition.  If Borrower does not receive notice from the Administrative Agent that the Solar Loan Financing Commitment under the applicable Solar Loan Program Agreement is to be ineligible under this Section 6.03(b) within 60 days after the delivery of the applicable documents as set forth above, such Solar Loan Financing Commitment shall be deemed eligible subject to the then existing eligibility conditions set forth herein.”

Section 1.06 Amendment to Section 7.02 . Clause (j) of Section 7.02 is hereby amended by deleting the phrase “evidencing the Tax Equity Commitments, Backlever Financing or System Refinancing” and replacing it with “evidencing the Tax Equity Commitments, Backlever Financings or System Refinancing or under any Solar Loan Program Agreement”.

Section 1.07 Amendment to Section 7.04 .   Clause (b) of Section 7.04 is hereby amended by deleting the phrase “and the exclusion of such Tax Equity Commitments, Backlever Financings or Solar Bonds Financings from the calculation of Available Take-Out” and replacing it with “and the exclusion of such Tax Equity Commitments, Backlever Financing Commitments or Solar Bonds Financings from the calculation of Available Take-Out”

6


 

Section 1.08 Amendment s to Section 7.0 5 .  

(a) Clause (e) of Section 7.05 is hereby amended by deleting the phrase “and the exclusion of such Tax Equity Commitments or Backlever Financings from the calculation of Available Take-Out” and replacing it with “and the exclusion of such Tax Equity Commitments or Backlever Financing Commitments from the calculation of Available Take-Out”

(b) Clause (h) of Section 7.05 is hereby amended by inserting the phrase “Solar Loan Financing documents, ” immediately after the phrase “Backlever Financing documents, ”.

Section 1.09 Amendment to Exhibit Q .  

(a) Exhibit Q to the Credit Agreement is hereby amended by adding a new item (11) immediately following item (10) (“NYGB Borrowing Base Calculation”) as follows:

“(11) Solar Loan Lender’s Solar Loan Financing Commitment

(a) [Solar Loan Lender’s] Solar Loan Financing Commitment           $[ ];

(b) [Solar Loan Lender’s] Solar Loan Financing Commitment           $[ ].”

(b) Exhibit Q to the Credit Agreement is hereby amended by adding a new item (12) immediately following item (11) (“Solar Loan Lender’s Solar Loan Financing Commitment”) as follows:

“(12) Solar Loan Lender’s Solar Loan Program Rate

(a) [Solar Loan Lender’s] Solar Loan Program Rate            $[ ];

(b) [Solar Loan Lender’s] Solar Loan Program Rate            $[ ].”

(c) Exhibit Q to the Credit Agreement is hereby amended by adding a new item (13) immediately following item (12) (“Solar Loan Lender’s Solar Loan Program Rate”) as follows:

“(13) Solar Loan Lender’s Eligible Solar Loan Financing Commitment

(a) [Solar Loan Lender’s] Eligible Solar Loan Financing Commitment           $[ ];

(b) [Solar Loan Lender’s] Eligible Solar Loan Financing Commitment           $[ ].”

Article II.
CONDITIONS TO EFFECTIVENESS

Section 2.01 Conditions to Effectiveness .  This Amendment shall become effective as of the Amendment Effective Date upon:

(a) receipt by the Administrative Agent of a copy of this Amendment, in form and substance reasonably acceptable to the Administrative Agent, duly executed by Borrower, the Supermajority Lenders and Administrative Agent; and

7


 

(b) receipt by the Administrative Agent of the initial Solar Loan Financing Approval, in form and substance reasonably acceptable to the Administrative Agent, duly executed by Borrower, the Supermajority Lenders and Administrative Agent .

Article III.
MISCELLANEOUS

Section 3.01 Amended Terms .  On and after the Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Amendment.  Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

Section 3.02 Representations and Warranties of Loan Parties .  Each of the Loan Parties represents and warrants as follows:

(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

(b) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment, other than those which have been duly obtained.

(d) the representations and warranties set forth in Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects (except for (A) those which expressly relate to an earlier date, including for the avoidance of doubt, Sections 5.05 (which shall refer to the most recent statements furnished pursuant to Section 6.01 of the Credit Agreement, as applicable), 5.19, 5.20, and 5.21(b) through (h) and (B) Section 5.09(c), which inaccuracy could not reasonably be expected to have a Material Adverse Effect).

(e) Immediately before and after giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.

(f) After giving effect to this Amendment, the Collateral Documents continue to create a valid security interest in, and Lien upon, the Collateral, in favor of the Administrative Agent, for the benefit of the Lenders, which security interests and Liens are perfected in accordance with the terms of the Collateral Documents and prior to all Liens other than Permitted Liens.

8


 

(g) The Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.

Section 3.03 Reaffirmation of Obligations .  Each Loan Party hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement applicable to it and (b) that it is responsible for the observance and full performance of its respective Obligations.

Section 3.04 Loan Document .  This Amendment shall constitute a Loan Document under the terms of the Credit Agreement.

Section 3.05 Expenses .  The Borrower agrees to:

(a) promptly upon receipt of an invoice therefor, pay all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of the Administrative Agent’s legal counsel; and

(b) promptly after the Amendment Effective Date, pay to the Administrative Agent an amount, in respect, and for the benefit, of each Supermajority Lender executing this Amendment on or before 2:00 PM (Pacific Time) on January 31, 2017, equal to the product of (i) 5 basis points and (ii) such Supermajority Lender’s Commitment as of the Amendment Effective Date.

Section 3.06 Further Assurances .  The Loan Parties agree to promptly take such action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.

Section 3.07 Continuing Effect . Except as expressly amended, waived or otherwise modified hereby, the Credit Agreement shall continue to be and shall remain in full force and effect in accordance with its terms.  This A mendment shall not constitute an amendment, consent, waiver or other modification of any provision of the Credit Agreement not expressly referred to herein and shall not be construed as an amendment, consent, waiver or other modification of any action on the part of the Borrower or  the other Loan Parties that would require an amendment, consent or waiver of the Administrative Agent or the Lenders except as expressly stated herein, or be construed to indicate the willingness of the Administrative Agent or the Lenders to further amend, waive or otherwise modify any provision of the Credit Agreement amended, waived or otherwise modified hereby for any other period, circumstance or event.  Except as expressly set forth herein, each Lender and the Administrative Agent reserves all of its rights, remedies, powers and privileges under the Credit Agreement, the other Loan Documents, applicable law and/or equity.

Section 3.08 Entirety .  This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

Section 3.09 Counterparts; Telecopy .  This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but

9


 

all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Amendment or any other document required to be delivered hereunder, by fax transmission or e-mail transmission ( e.g. pdf or tif ) shall be effective as delivery of a manually executed counterpart of this Agreement.  Without limiting the foregoing, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.

Section 3.10 No Actions, Claims, Etc.   As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.

Section 3.11 GOVERNING LAW .  THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

Section 3.12 Successors and Assigns .  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Section 3.13 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial .  The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 11.14 and 11.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

 

10


 

IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed on the date first above written.

BORROWER :

SOLARCITY CORPORATION ,

a Delaware corporation

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

Chief Executive Officer

 

 

 

ADMINISTRATIVE AGENT :

BANK OF AMERICA, N.A. ,

in its capacity as Administrative Agent

 

 

 

By:

/s/ Denise Jones

 

Name:

Denise Jones

 

Title:

Assistant Vice President

 

 

 

LENDERS :

BANK OF AMERICA, N.A. ,

in its capacity as Lender, L/C Issuer and Swingline Lender

 

 

 

By:

/s/ G. Christopher Miller

 

Name:

G. Christopher Miller

 

Title:

Senior Vice President

 

 

 

CREDIT SUISSE AG, NEW YORK BRANCH ,

as a Lender

 

 

 

By:

/s/ Mikhail Faybusovich

 

Name:

Mikhail Faybusovich

 

Title:

Authorized Signatory

 

 

 

 

By:

/s/ Nicholas Goss

 

Name:

Nicholas Goss

 

Title:

Authorized Signatory

 

 

 

Signature Page – Fifteenth Amendment to Amended and Restated Credit Agreement


 

 

SILICON VALLEY BANK ,

as a Lender

 

 

 

By:

/s/ Mona Maitra

 

Name:

Mona Maitra

 

Title:

Vice President

 

 

 

 

CIT BANK, N.A. ,

as a Lender

 

 

 

By:

/s/ Daniel Miller

 

Name:

Daniel Miller

 

Title:

Managing Director

 

 

 

 

DEUTSCHE BANK AG NEW YORK BRANCH,

as a Lender

 

 

 

By:

/s/ Anca Trifan

 

Name:

Anca Trifan

 

Title:

Managing Director

 

 

 

 

By:

/s/ Dusan Lazarov

 

Name:

Dusan Lazarov

 

Title:

Director

 

 

 

 

GOLDMAN SACHS BANK USA ,

as a Lender

 

 

 

By:

/s/ Ushma Dedhiya

 

Name:

Ushma Dedhiya

 

Title:

Authorized Signatory

 

 

 

CITIBANK, N.A.

as Administrative Agent and Collateral Agent

 

 

 

By:

/s/ Margo Campbell

 

Name:

Margo Campbell

 

Title:

Vice President

 

 

Signature Page – Fifteenth Amendment to Amended and Restated Credit Agreement


 

GUARANTOR CONSENT

Each of the undersigned (each a “ Guarantor ) consents to the foregoing Amendment to Credit Agreement and other Loan Documents ( Amendment ”) and the transactions contemplated thereby and reaffirms its obligations under Article X (Continuing Guaranty) of the Credit Agreement (as the same may be amended, modified, supplemented or replaced from time to time, the “ Guaranty ”).

Each Guarantor reaffirms, to the extent a party thereto, that its obligations under the Guaranty are separate and distinct from Borrower’s obligations and reaffirms its waivers, as set forth in the Guaranty, of each and every one of the possible defenses to such obligations.

Furthermore, each Guarantor acknowledges and agrees that any reference to the term “Credit Agreement” in the Guaranty shall mean the Credit Agreement dated of even date with the Guaranty together with all amendments, increases or modifications thereto.

Agreed and Acknowledged :

POPPY ACQUISITION LLC

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

Chief Executive Officer

 

 

 

 

ZEP SOLAR LLC

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

Chief Executive Officer

 

 

 

 

SILEVO, LLC

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

President

 

 

 

Guarantor Consent – Fifteenth Amendment to Amended and Restated Credit Agreement

Exhibit 10.3

 

SIXTEENTH AMENDMENT TO
THE AMENDED AND RESTATED
CREDIT AGREEMENT

THIS SIXTEENTH AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment ”), dated as of May 5, 2017 (the “ Amendment Effective Date ”), is by and among SOLARCITY CORPORATION , a Delaware corporation (the “ Borrower ”), the Lenders party hereto and BANK OF AMERICA, N.A. , as administrative agent (in such capacity, the “ Administrative Agent ”).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.

W I T N E S S E T H

WHEREAS , the Borrower, the Subsidiaries of the Borrower from time to time party thereto (the “ Guarantors ”), certain banks and financial institutions from time to time party thereto as lenders (the “ Lenders ”), the Administrative Agent, and Bank of America Merrill Lynch, as sole lead arranger and sole book manager, are parties to that certain Amended and Restated Credit Agreement dated as of November 1, 2013 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “ Credit Agreement ”);

WHEREAS , the Loan Parties have requested that the Required Lenders amend certain provisions of the Credit Agreement; and

WHEREAS , the Required Lenders are willing to make such amendments to the Credit Agreement, in accordance with and subject to the terms and conditions set forth herein, it being agreed that, except as expressly amended hereby, the terms and provisions of the Credit Agreement and each other Loan Document (including all collateral and guaranty requirements thereof) remain in effect without modification;

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

Article I.
AMENDMENTS TO CREDIT AGREEMENT

Section 1.01 New Definition .  The following defined term is hereby added to Section 1.01 ( Defined Terms ) of the Credit Agreement in the appropriate alphabetical order:

“‘ Sixteenth Amendment Effective Date means May 5, 2017 .”

Section 1.02 Amendments to Section 1.01 ( Defined Terms ) . The following defined terms set forth in Section 1.01 ( Defined Terms ) of the Credit Agreement are hereby amended and restated in their entirety to read as follows:

“‘ Consolidated means, when used with reference to financial statements or financial statement items of Tesla and its Subsidiaries, the Borrower and its


Subsidiaries or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP .”

“‘ True-Up Liability ” means Borrower’s liability to any Tax Equity Investor (as measured in Dollars) due to a reduction of fair market value of Projects already Tranched with such Tax Equity Investor, as set forth in the financial statements of the Borrower and its Subsidiaries (or, from and after the Sixteenth Amendment Effective Date, the financial statements of Tesla and its Subsidiaries) and as may be reduced from time to time by the Tranching of such Projects pursuant to the applicable Tax Equity Documents.”

Section 1.03 Amendments to Section 1.01 ( Defined Terms ) .

(a) The definition of “ Cost of Acquisition ” is hereby amended by adding “(or, from and after the Sixteenth Amendment Effective Date, the financial statements or Tesla and its Subsidiaries) ” following “financial statements of the Borrower and its Subsidiaries ” in each of sub-sections (d) and (e) therein.

(b) The definition of “ Interest Charges ” set forth in Section 1.01 of the Credit is hereby deleted in its entirety.

(c) The definition of “ Interest Coverage Ratio ” set forth in Section 1.01 of the Credit is hereby deleted in its entirety

(d) The definition of “ Permitted Acquisition ” is hereby amended by adding the words “(or, from and after the Sixteenth Amendment Effective Date, of Tesla and its Subsidiaries) ” following “income statements of the Borrower and its Subsidiaries ” in each of sub-sections (d)(iv) therein.

Section 1.04 Amendment to Section 5.05 ( Financial Statements; No Material Adverse Effect) .   Clause (c) of Section 5.05 (Material Adverse Effect) is hereby amended and restated in its entirety as follows:

Material Adverse Effect .  Since the date of the Audited Financial Statements (and, in addition, after delivery of the most recent annual audited financial statements required to have been delivered pursuant to Section 6.01, since the date of such annual audited financial statements), there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.”

Section 1.05 Amendments to Section 6.01 ( Financial Statements ) .  

(a) Clause (a) of Section 6.01 ( Audited Financial Statements ) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(a) Audited Financial Statements .   As soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Borrower (or, from and after the Sixteenth Amendment Effective Date, Tesla), a

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Consolidated balance sheet of the Borrower and its Subsidiaries (or, from and after the Sixteenth Amendment Effective Date, of Tesla and its Subsidiaries) as at the end of such fiscal year, and the related Consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, (i) such Consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and (ii) such Consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller that is a Responsible Officer of the Borrower to the effect that such statements are fairly stated in all material respects when considered in relation to the Consolidated financial statements of the Borrower and its Subsidiaries (or, from and after the Sixteenth Amendment Effective Date, the Consolidated financial statements of Tesla and its Subsidiaries).

(b) Clause (b) of Section 6.01 ( Quarterly Financial Statements ) of the Credit Agreement is hereby amended by adding the words “(or, from and after the Sixteenth Amendment Effective Date, Tesla)” following the words “each fiscal quarter of the Borrower” thereto.

(c) Sub-clause (b)(i) of Section 6.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(i) A Consolidated and consolidating balance sheet of the Borrower and its Subsidiaries (or, from and after the Sixteenth Amendment Effective Date, Tesla and its Subsidiaries) as at the end of such fiscal quarter, and the related Consolidated and consolidating statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s (or, from and after the Sixteenth Amendment Effective Date, Tesla’s) fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP and including management discussion and analysis of operating results inclusive of operating metrics in comparative form, such Consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller who is a Responsible Officer of the Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries (or, from and after the Sixteenth Amendment Effective Date, of Tesla and its Subsidiaries), subject only to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller that is a Responsible Officer of the Borrower to the effect that such statements are fairly stated in all material respects

3


when considered in relation to the Consolidated financial statements of the Borrower and its Subsidiaries (or, from and after the Sixteenth Amendment Effective Date, the Consolidated financial statements of Tesla and its Subsidiaries); and”

Section 1.06 Amendments to Section 6.02 ( Certificates; Other Information ) .

(a) Clause (a) of Section 6.02 ( Accountants’ Certificate ) of the Credit Agreement is hereby amended by adding the words “(or, from and after the Sixteenth Amendment Effective Date, Tesla’s)” following “delivery of the Borrower’s ” thereto.

(b) Clause (b) of Section 6.02 ( Compliance Certificate ) of the Credit Agreement is hereby amended by adding the words “(or, from and after the Sixteenth Amendment Effective Date, Tesla’s)” following “delivery of the Borrower’s ” thereto.

(c) Clause (d) of Section 6.02 ( Calculations ) of the Credit Agreement is hereby amended by adding the words “(or, from and after the Sixteenth Amendment Effective Date, Tesla’s)” following “delivery with the Borrower’s ” thereto.

(d) Clause (g) of Section 6.02 ( Annual Reports; Etc. ) of the Credit Agreement is hereby amended by adding the words “(or, from and after the Sixteenth Amendment Effective Date, of Tesla)” following “sent to the stockholders of the Borrower ” thereto

Section 1.07 Amendment to Section 7.11 ( Financial Covenants ) .  Clause (a) of Section 7.11 (Interest Coverage Ratio) is hereby deleted in its entirety and replaced with “[Reserved].”

Article II.
CONDITIONS TO EFFECTIVENESS

Section 2.01 Conditions to Effectiveness .  This Amendment shall become effective as of the Amendment Effective Date upon the receipt by the Administrative Agent of a copy of this Amendment, in form and substance reasonably acceptable to the Administrative Agent, duly executed by Borrower, the Required Lenders and Administrative Agent.

Article III.
MISCELLANEOUS

Section 3.01 Amended Terms .  On and after the Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Amendment.  Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

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Section 3.02 Representations and Warranties of Loan Parties .  Each of the Loan Parties represents and warrants as follows:

(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

(b) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment, other than those which have been duly obtained.

(d) the representations and warranties set forth in Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects (except for (A) those which expressly relate to an earlier date, including for the avoidance of doubt, Sections 5.05 (which shall refer to the most recent statements furnished pursuant to Section 6.01 of the Credit Agreement, as applicable), 5.19, 5.20, and 5.21(b) through (h) and (B) Section 5.09(c), which inaccuracy could not reasonably be expected to have a Material Adverse Effect).

(e) Immediately before and after giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.

(f) After giving effect to this Amendment, the Collateral Documents continue to create a valid security interest in, and Lien upon, the Collateral, in favor of the Administrative Agent, for the benefit of the Lenders, which security interests and Liens are perfected in accordance with the terms of the Collateral Documents and prior to all Liens other than Permitted Liens.

(g) The Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.

Section 3.03 Reaffirmation of Obligations .  Each Loan Party hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement applicable to it and (b) that it is responsible for the observance and full performance of its respective Obligations.

Section 3.04 Loan Document .  This Amendment shall constitute a Loan Document under the terms of the Credit Agreement.

Section 3.05 Expenses .  The Borrower agrees to promptly upon receipt of an invoice therefor, pay all reasonable costs and expenses of the Administrative Agent in connection with

5


the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of the Administr ative Agent’s legal counsel.

Section 3.06 Further Assurances .  The Loan Parties agree to promptly take such action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.

Section 3.07 Continuing Effect .  Except as expressly amended, waived or otherwise modified hereby, the Credit Agreement shall continue to be and shall remain in full force and effect in accordance with its terms.  This Amendment shall not constitute an amendment, consent, waiver or other modification of any provision of the Credit Agreement not expressly referred to herein and shall not be construed as an amendment, consent, waiver or other modification of any action on the part of the Borrower or  the other Loan Parties that would require an amendment, consent or waiver of the Administrative Agent or the Lenders except as expressly stated herein, or be construed to indicate the willingness of the Administrative Agent or the Lenders to further amend, waive or otherwise modify any provision of the Credit Agreement amended, waived or otherwise modified hereby for any other period, circumstance or event.  Except as expressly set forth herein, each Lender and the Administrative Agent reserves all of its rights, remedies, powers and privileges under the Credit Agreement, the other Loan Documents, applicable law and/or equity.

Section 3.08 Entirety .  This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

Section 3.09 Counterparts; Telecopy .  This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Amendment or any other document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.  Without limiting the foregoing, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.

Section 3.10 No Actions, Claims, Etc.   As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.

Section 3.11 GOVERNING LAW .  THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

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Section 3.12 Successors and Assigns .  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Section 3.13 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial .  The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 11.14 and 11.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

[ SIGNATURE PAGES TO FOLLOW ]

7


IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed on the date first above written.

BORROWER :

SOLARCITY CORPORATION ,

a Delaware corporation

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

Chief Executive Officer

 

 

 

ADMINISTRATIVE AGENT :

BANK OF AMERICA, N.A. ,

in its capacity as Administrative Agent

 

 

 

By:

/s/ Reneé Marion

 

Name:

Reneé Marion

 

Title:

Assistant Vice President

 

 

 

LENDERS :

BANK OF AMERICA, N.A. ,

in its capacity as Lender, L/C Issuer and Swingline Lender

 

 

 

By:

/s/ G. Christopher Miller

 

Name:

G. Christopher Miller

 

Title:

Senior Vice President

 

 

 

CREDIT SUISSE AG, NEW YORK BRANCH ,

as a Lender

 

 

 

By:

/s/ Mikhail Faybusovich

 

Name:

Mikhail Faybusovich

 

Title:

Authorized Signatory

 

 

 

 

By:

/s/ Warren Van Heyst

 

Name:

Warren Van Heyst

 

Title:

Authorized Signatory

 

 

 

 

SILICON VALLEY BANK ,

as a Lender

 

 

 

By:

/s/ Mona Maitra

 

Name:

Mona Maitra

 

Title:

Vice President

 

 

 

Signature Page – Sixteenth Amendment to Amended and Restated Credit Agreement


 

DEUTSCHE BANK AG NEW YORK BRANCH,

as a Lender

 

 

 

By:

/s/ Anca Trifan

 

Name:

Anca Trifan

 

Title:

Managing Director

 

 

 

 

By:

/s/ Peter Cucchiara

 

Name:

Peter Cucchiara

 

Title:

Vice President

 

 

 

 

GOLDMAN SACHS BANK USA ,

as a Lender

 

 

 

By:

/s/ Ushma Dedhiya

 

Name:

Ushma Dedhiya

 

Title:

Authorized Signatory

 

 

 

CITIBANK, N.A.

as Administrative Agent and Collateral Agent

 

 

 

By:

/s/ Sarah Terner

 

Name:

Sarah Terner

 

Title:

Senior Vice President

 

 

 

NY GREEN BANK,

a division of the New York State Energy Research & Developmental Authority, as Additional Lender

 

 

 

By:

/s/ Alfred Griffin

 

Name:

Alfred Griffin

 

Title:

President

 

 

 

Signature Page – Sixteenth Amendment to Amended and Restated Credit Agreement


GUARANTOR CONSENT

Each of the undersigned (each a “ Guarantor ) consents to the foregoing Amendment to Credit Agreement and other Loan Documents ( Amendment ”) and the transactions contemplated thereby and reaffirms its obligations under Article X (Continuing Guaranty) of the Credit Agreement (as the same may be amended, modified, supplemented or replaced from time to time, the “ Guaranty ”).

Each Guarantor reaffirms, to the extent a party thereto, that its obligations under the Guaranty are separate and distinct from Borrower’s obligations and reaffirms its waivers, as set forth in the Guaranty, of each and every one of the possible defenses to such obligations.

Furthermore, each Guarantor acknowledges and agrees that any reference to the term “Credit Agreement” in the Guaranty shall mean the Credit Agreement dated of even date with the Guaranty together with all amendments, increases or modifications thereto.

Agreed and Acknowledged :

POPPY ACQUISITION LLC

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

Chief Executive Officer

 

 

 

 

ZEP SOLAR LLC

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

Chief Executive Officer

 

 

 

 

SILEVO, LLC

 

 

 

By:

/s/ Lyndon Rive

 

Name:

Lyndon Rive

 

Title:

President

 

 

 

Guarantor Consent – Sixteenth Amendment to Amended and Restated Credit Agreement

Exhibit 10.4

 

CONFIDENTIAL TREATMENT REQUESTED

Certain portions of this document have been omitted pursuant to a request for Confidential Treatment and, where applicable, have been marked with “[***]” to indicate where omissions have been made. The confidential material has been filed separately with the Securities and Exchange Commission.

REQUIRED GROUP AGENT ACTION NO. 33

This REQUIRED GROUP AGENT ACTION NO. 33 (this “ Action ”), dated as of April 21, 2017 is entered into by and among Megalodon Solar, LLC, a Delaware limited liability company (“ Borrower ”), Bank of America, N.A., as the Administrative Agent (“ Administrative Agent ”) and as the Collateral Agent for the Secured Parties (“ Collateral Agent ”) and each of Bank of America, N.A. (“ BA Agent ”), Credit Suisse AG, New York Branch (“ CS Agent ”), Deutsche Bank AG, New York Branch (“ DB Agent ”), ING Capital LLC (“ ING Agent ”), KeyBank National Association (“ KB Agent ”), National Bank of Arizona (“ NBAZ Agent ”), Silicon Valley Bank (“ SVB Agent ”) and CIT Bank, N.A. (“ CIT Agent ” and collectively with BA Agent, CS Agent, DB Agent, ING Agent, KB Agent, NBAZ Agent and SVB Agent, the “ Group Agents ”), as Group Agents party to the Loan Agreement, dated as of May 4, 2015 (as amended, the “ Loan Agreement ”), by and among the Borrower, the Administrative Agent, the Collateral Agent, the Group Agents, the Lenders and the other parties from time to time party thereto.   As used in this Action, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Loan Agreement .

A. Pursuant to the Loan Agreement, the Lenders have agreed to extend credit to the Borrower, in each case pursuant to the terms and subject to the conditions set forth in the Financing Documents.

B. Pursuant to Section 9.14(a) of the Loan Agreement, the Borrower has requested that the Group Agents provide their consent to the release and removal in accordance with Section 2.10(b) of the Loan Agreement of (i) the [***], (ii) the [***], (iii) the [***], (iv) the [***], (v) the [***] and (vi) the [***] (collectively, the “ Released Subject Funds ”).

C. The Lenders are willing to provide their consent to the release and removal of the Released Subject Funds and the Collateral with respect thereto (collectively, the “ Applicable Transactions ”) on the terms and subject to the conditions set forth in this Action.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

Section 1. Consent .  Subject to the satisfaction of the Consent Requirements (as defined in Section 3 of this Action), each Agent and Lender party hereto, by its signature below, (i) consents to the Applicable Transactions and (ii) directs the Collateral Agent to execute and deliver each document contemplated to be delivered by the Collateral Agent pursuant to Section 2 of this Action and to otherwise carry out the terms and provisions of this Action.

 

 

Required Group Agent Action No. 33

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Section 2. Release; Covenants .  Upon satisfaction of the Consent Requirements, without any further action by any party:

(a) all security interests granted to the Collateral Agent by the Borrower in the Security Agreement with respect to the Equity Interests (and any other rights as specified in Section 3 thereof and together with the Equity Interests, the “ Released Borrower Collateral ”) of each of [***], [***], [***], [***], [***] and [***] (the “ Released Subsidiary Parties ”) shall automatically terminate and be released, all rights to the Released Borrower Collateral shall revert to the Borrower, and the Collateral Agent shall promptly deliver or cause to be delivered to the Borrower all Released Borrower Collateral, including original certificates representing all issued and outstanding Equity Interests of the Released Subsidiary Parties along with related blank transfer powers and irrevocable proxies, as applicable;

(b) all security interests granted to the Collateral Agent by each of the Released Subsidiary Parties in the Borrower Subsidiary Party Security Agreement with respect to the Equity Interests (and any other rights as specified in Section 3 thereof and together with the Equity Interests, the “ Released Grantor Party Collateral ”, and together with the Released Borrower Collateral, the “ Released Subsidiary Party Collateral ”) shall automatically terminate and be released, all rights to the Released Grantor Party Collateral shall revert to each of the Released Subsidiary Parties, and the Collateral Agent shall promptly deliver or cause to be delivered to each of the Released Subsidiary Parties all Released Grantor Party Collateral, including original certificates representing all issued and outstanding Equity Interests of each Released Subsidiary Party in the applicable Released Subject Funds along with related blank transfer powers and irrevocable proxies, as applicable;

(c) the Collateral Agent authorizes the Borrower or any other party on behalf of the Borrower, to file UCC financing statement amendments relating to the Released Subsidiary Party Collateral in the form attached hereto as Annex 5 and to prepare and file any additional financing statement amendments and other instruments and documents in form and substance reasonably satisfactory to the Collateral Agent evidencing the consummation of the Applicable Transactions;

(d) the signature pages of the Collateral Agent and Administrative Agent to the Termination Agreement attached hereto as Appendix 1 , which terminates the Security Agreement with respect to each Released Subsidiary Party, shall be automatically released;

(e) the signature pages of the Collateral Agent, the Administrative Agent and the Depositary to the Termination Agreement attached hereto as Appendix 2 , which terminates the CADA with respect to each Released Subsidiary Party, shall be automatically released;

(f) the signature pages of the Collateral Agent and the Administrative Agent to the Termination Agreement attached hereto as Appendix 3 , which terminates the Borrower Subsidiary Party Security Agreement with respect to each Released Subsidiary Party, shall be automatically released;

 

2

Required Group Agent Action No. 33

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

( g ) Schedule 1.1(b) to the Loan Agreement shall be amended by amending and restating the table therein in its entirety as follows:

Partnership Managing Member / Lessor Managing Member / Borrower Subsidiary (Other Non-Financed Structure)

Equity Interests Owned as of date related Partnership or Lessor Partnership becomes a Subject Fund

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

(h) Appendix 1 to the Loan Agreement shall be amended by amending and restating clause (i) of the definition of “Advance Rate” as follows:

“(i) For a Subject Fund the following percentages:

Subject Fund

Advance Rate

Cash Sweep Fund or
Non-Cash Sweep Fund

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

”;

(i) Appendix 4 to the Loan Agreement shall be replaced with a revised Appendix 4 to the Loan Agreement in the form attached hereto as Annex 1 ;

(j) Appendix 5 to the Loan Agreement shall be replaced with a revised Appendix 5 to the Loan Agreement in the form attached hereto as Annex 2 ; and

 

3

Required Group Agent Action No. 33

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

( k ) the Collateral Agent shall, at the sole cost and expense of the Borrower, procure, deliver or execute and deliver to the Borrower, from time to time, all further releases, termination statements, financing statement amendments, certificates, instruments and documents, each in form and substance satisfactory to the Borrower and the Collateral Agent, and take any other actions, as reasonably requested by the Borrower or that are required to evidence the consummation of the Applicable Transactions, including, for the avoidance of doubt, the execution of the “Notice of Change of Loss Payee” with respect to the (i) the Tax Loss Policy of [***] , (ii) the Tax Loss Policy of [***] , (iii) the Tax Loss Policy of [***] , (iv) the Tax Loss Policy of [***] , (v) the Tax Loss Policy of [***] and (vi) the Tax Loss Policy of [***] .

Section 3. Effectiveness .  This Action shall become effective on the date (the “ Effective Date ”) on which the following conditions (collectively, the “ Consent Requirements ”) are satisfied:

(a) the Borrower has paid or has caused to be paid to the Administrative Agent the following (collectively, the “ Release Payment ”) at or before 5:00 p.m. (Eastern Time) on [***] (the “ Payment Time ”) to the account set forth in Annex 3 hereto:

(i)        prepayment of $[***] of the outstanding principal amount of the Loans as of the Payment Time, to be allocated among the Lenders by the Administrative Agent as set forth in Annex 4 hereto; and

(ii)        payment of $[***] of the outstanding interest accrued as of the Payment Time with respect to the principal amount described in clause (i) above;

(b) the Administrative Agent shall have received counterparts of this Action, duly executed and delivered by the Borrower and each Group Agent;

(c) the Borrower shall have delivered a duly completed Borrowing Base Certificate to the Administrative Agent; and

(d) all representations and warranties of the Borrower in Section 4 of this Action and all representations and warranties of the Borrower in the Borrowing Base Certificate delivered pursuant to Section 3(c) of this Action shall be true and correct in all material respects as of the Effective Date, other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).

Notwithstanding any failure or inability of the Borrower to satisfy any of the foregoing conditions set forth in Sections 3(c) or (d) of this Action, upon the satisfaction of the conditions set forth in Sections 3(a) and (b) of this Action, (i) all right, title and interest of the Collateral Agent and the Secured Parties in and to the Released Subsidiary Party Collateral shall transfer to and vest in Borrower and any assignee of Borrower without any further action required and (ii) none of the Released Subsidiary Party Collateral shall be “Collateral” under or for purposes of the Loan Agreement or any other Financing Document; provided that the Agents shall

 

4

Required Group Agent Action No. 33

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

be entitled to assert claims against the Borrower as a result of any breach by the Borrower of any of representations, warranties, covenants or statements made by the Borrower in this Action.

Section 4. Representations and Warranties .  The Borrower hereby represents and warrants as of the Effective Date:

(a) the Borrower has duly authorized, executed and delivered this Action, and neither the Borrower’s execution and delivery hereof nor the performance hereof or the consummation of the Applicable Transactions (i) will be in conflict with or result in a breach of the Borrower’s Organizational Documents, (ii) will materially violate any other Legal Requirement applicable to or binding on the Borrower or any of its respective properties, (iii) will result in any breach of or constitute any default under, or result in or require the creation of any Lien (other than Permitted Liens) upon any of the Collateral under any agreement or instrument to which it is a party or by which the Borrower or any of the Collateral may be bound or affected, or (iv) will require the consent or approval of any Person, which has not already been obtained;

(b) this Action is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and subject to general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law);

(c) no Default or Event of Default has occurred and is continuing or will result from the Release Payment or the consummation of the Applicable Transactions;

(d) no Bankruptcy Event has occurred with respect to SolarCity;

(e) no Material Adverse Effect has occurred or is continuing since the immediately preceding Borrowing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect; and

(f) after giving effect to the Applicable Transactions and the Release Payment, the Borrower is in compliance with the Borrowing Base Requirements.

Section 5. Reference to and Effect on Financing Documents .  Each of the Loan Agreement and the other Financing Documents is and shall remain unchanged and in full force and effect, and, except as expressly set forth herein, nothing contained in this Action shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or any of the other Secured Parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in each of the Loan Agreement and any other Financing Document .  This Action shall also constitute a “Financing Document” for all purposes of the Loan Agreement and the other Financing Documents.

Section 6. Incorporation by Reference .   Sections 10.5 ( Entire Agreement ), 10.6 ( Governing Law ), 10.7 ( Severability ), 10.8 ( Headings ), 10.11 ( Waiver of Jury Trial ), 10.12 ( Consent to Jurisdiction ; Service of Process ), 10.14 ( Successors and Assigns ) and 10.16 ( Binding

 

5

Required Group Agent Action No. 33

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Effect; Counterparts ) of the Loan Agreement are hereby incorporated by reference herein, mutatis mutandis.

Section 7. Expenses.   The Borrower agrees to reimburse the Administrative Agent in accordance with Section 10.4(b) of the Loan Agreement for its reasonable and documented out-of-pocket expenses in connection with this Action, including reasonable and documented fees and out-of-pocket expenses of legal counsel.

Section 8. Construction.   The rules of interpretation specified in Section 1.2 of the Loan Agreement also apply to this Action, mutatis mutandis.

[ Signature Pages Follow ]

 

 

 

6

Required Group Agent Action No. 33

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

IN WITNESS WHEREOF, the parties hereto have caused this Action to be duly executed by their respective authorized officers as of the day and year first written above.

MEGALODON SOLAR, LLC ,

as Borrower

 

By:

/s/ Lyndon Rive

Name:

Lyndon Rive

Title:

President

 

 

BANK OF AMERICA, N.A. ,

as a Group Agent

 

By:

/s/ Sheikh Omer-Farooq

Name:

Sheikh Omer-Farooq

Title:

Managing Director

 

 

CIT BANK, N.A. ,

as a Group Agent

 

By:

/s/ Joseph Gyurindak

Name:

Joseph Gyurindak

Title:

Director

 

CREDIT SUISSE AG, NEW YORK BRANCH ,

as a Group Agent

 

By:

/s/ Erin McCutcheon

Name:

Erin McCutcheon

Title:

Vice President

 

 

By:

/s/ Patrick J. Hart

Name:

Patrick J. Hart

Title:

Vice President

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH ,

as a Group Agent

 

By:

/s/ Rich Mauro

Name:

Rich Mauro

Title:

Vice President

 

 

By:

/s/ Evelyn Peters

Name:

Evelyn Peters

Title:

Vice President

 

 

[Signature Page to Required Group Agent Action No. 33]

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 


ING CAPITAL, LLC ,

as a Group Agent

 

By:

/s/ Erwin Thomet

Name:

Erwin Thomet

Title:

Managing Director

 

 

By:

/s/ Mark Parrish

Name:

Mark Parrish

Title:

Vice President

 

 

KEYBANK NATIONAL ASSOCIATION ,

as a Group Agent

 

By:

/s/ Benjamin C. Cooper

Name:

Benjamin C. Cooper

Title:

Vice President

 

 

National Bank of Arizona ,

as a Group Agent

 

By:

/s/ Robert E. Cooper, Jr.

Name:

Robert E. Cooper, Jr.

Title:

Vice President

 

 

SILICON VALLEY BANK ,

as a Group Agent

 

By:

/s/ Sayoji Goli

Name:

Sayoji Goli

Title:

Vice President

 

BANK OF AMERICA, N.A.

as Administrative Agent and Collateral Agent

 

By:

/s/ Darleen R. DiGrazia

Name:

Darleen R. DiGrazia

Title:

Vice President

 

 

[Signature Page to Required Group Agent Action No. 33]

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

ANNEX 1

 

APPENDIX 4

TAX EQUITY STRUCTURES, PARTNERSHIPS, LESSOR PARTNERSHIPS, LESSORS, SUBJECT FUNDS, MANAGING MEMBERS, FUNDED SUBSIDIARIES, LESSEES, CASH SWEEP DESIGNATIONS AND INVESTORS

Tax Equity Structure

Partnership /
Lessor Partnership

(Subject Fund)

Partnership Managing Member / Lessor Partnership Managing Member

Funded Subsidiaries

(Subject Fund and Managing Member, if any)

Lessee

Full Cash-Sweep Fund, Partial Cash-Sweep Fund or Non-Cash Sweep Fund

Investor(s)

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

 

Annex 1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


ANNEX 2

 

APPENDIX 5

PROJECT DOCUMENTS

 

1.

[***] Subject Fund

 

Master Lease, dated as of [***], by and between [***] and [***].

 

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State).

 

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and among [On File with Administrative Agent], [***] and [***].

 

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***], by Megalodon Solar, LLC.

 

Pass-Through Agreement, dated as of [***], by and between [***] and [***].

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent], [***] and [***].

 

2.

[***] Subject Fund

 

Master Lease, dated as of [***], by and between [***] and [***].

 

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State) by and among SolarCity, [***] and [***].

 

First Amendment to Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and between [On File with Administrative Agent] and [***].

 

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***], by Megalodon Solar, LLC.

Annex 2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Pass-Through Agreement, dated as of [***] , by and between [***] and [***] .

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent] and [***].

 

[***].

 

3.

[***] Subject Fund

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Contribution Agreement (Systems), dated as of [***], by and among [***], [***], Megalodon Solar, LLC and [***].

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

 

4.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Second Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Asset Management Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Purchase and Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity Corporation, [***], [***] and [On File with Administrative Agent].

 

Amendment Agreement, dated as of [***], by and among SolarCity Corporation, [***], [***] and [On File with Administrative Agent].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

Accession Agreement, dated as of [***], by and among SolarCity Corporation, [***] and [***].

Annex 2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

SREC Services Agreement, dated as of [***] , by and between SolarCity Corporation and [***] .

 

5.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amendment No. 1 to Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

Accession Agreement, dated as of [***], by and among [***], SolarCity Corporation and [***].

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

6.

[***] Subject Fund

 

Master Lease Agreement, dated as of [***], by and between [***] and [***].

 

Omnibus Amendment No. 1 and Consent, dated as of [***], by and among SolarCity Corporation, [***] and [***], as acknowledged by [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Independent Manager Agreement, dated as of [***], by and among [***], [***] and [***].

 

Security Agreement, dated as of [***], by and between [***] and [***].

Annex 2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Depositary Agreement, dated as of [***] , by and between [***] and [***] .

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

UCC-1, filed [***], designating [***], as “[***]”, and [***], as “[***]”.

 

Each Contribution Agreement entered into by and among SolarCity Corporation, [***] and the other parties thereto.

 

Each Assignment and Assumption Agreement entered into by and between [***] and [***].

 

7.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [***] and [On File with Administrative Agent].

 

Transition Manager Agreement, dated as of [***], by and among [***], SolarCity Corporation, [On File with Administrative Agent] and [***].

 

 

8.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

Annex 2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Administrative Services Agreement, dated as of [***] , by and between SolarCity Corporation and [***] .

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

9.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent].

 

 

Annex 2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


ANNEX 3

 

Account Information

 

Pay to:

[***]

Bank

[***]

ABA No.

[***]

Account No.

[***]

Account Name

[***]

Ref.

[***]

 

Annex 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


ANNEX 4

 

SCHEDULE OF PRINCIPAL PREPAYMENT ALLOCATIONS

 

Lender

Share of Prepayment

Bank of America, N.A.

$ [***]

Credit Suisse AG, Cayman Islands Branch

$ [***]

ING Capital LLC

$ [***]

Deutsche Bank AG, New York Branch

$ [***]

KeyBank National Association

$ [***]

National Bank of Arizona

$ [***]

Silicon Valley Bank

$ [***]

CIT Bank, N.A.

$ [***]

Total

$ [***]

 

 

Annex 4

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


ANNEX 5

 

UCC-3 TERMINATION STATEMENTS

 

Annex 5

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.



Annex 5

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


Annex 5

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


Annex 5

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Exhibit 10.5

 

CONFIDENTIAL TREATMENT REQUESTED

Certain portions of this document have been omitted pursuant to a request for Confidential Treatment and, where applicable, have been marked with “[***]” to indicate where omissions have been made. The confidential material has been filed separately with the Securities and Exchange Commission.

REQUIRED GROUP AGENT ACTION NO. 34

This REQUIRED GROUP AGENT ACTION NO. 34 (this “ Action ”), dated as of May 15, 2017 (the “ Effective Date ”), is entered into by and among Megalodon Solar, LLC, a Delaware limited liability company (“ Borrower ”), Bank of America, N.A., as the Administrative Agent (“ Administrative Agent ”), the Collateral Agent for the Secured Parties (“ Collateral Agent ”) and each of Bank of America, N.A. (“ BA Agent ”), Credit Suisse AG, New York Branch (“ CS Agent ”), Deutsche Bank AG, New York Branch (“ DB Agent ”), ING Capital LLC (“ ING Agent ”), KeyBank National Association (“ KB Agent ”), National Bank of Arizona (“ NBAZ Agent ”), Silicon Valley Bank (“ SVB Agent ”) and CIT Bank, N.A. (“ CIT Agent ” and collectively with BA Agent, CS Agent, DB Agent, ING Agent, KB Agent, NBAZ Agent and SVB Agent, the “ Group Agents ”), as Group Agents party to the Loan Agreement, dated as of May 4, 2015 (as amended, the “ Loan Agreement ”), by and among the Borrower, Administrative Agent, Collateral Agent, the Group Agents, the Lenders and the other parties from time to time party thereto.  As used in this Action, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

A. The Borrower has requested the Required Group Agents to provide their consent to the addition and inclusion to the Loan Agreement and the other Financing Documents of (the “ Subject Fund Transactions ”) [***] (“ [***] ”), as a Subject Fund, and [***] (“ [***] ”), as a Borrower Subsidiary Party (collectively, [***] and [***] , the “ New Entities ”);

B. The Required Group Agents are willing to provide their consent to the Subject Fund Transactions on the terms and subject to the conditions set forth in this Action; and

C. The Borrower, the Required Group Agents, the Administrative Agent and the Collateral Agent desire to amend the Loan Agreement as set forth herein.

 

 

Required Group Agent Action No. 34

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

Section 1. Amendments to the Loan Agreement.   Subject to the prior satisfaction of the conditions precedent described in Section 3 hereof, the Loan Agreement will be amended as follows (clauses (a) – (d) below, collectively, the “ Loan Agreement Amendments ”):

(a) Schedule 1.1(b) to the Loan Agreement shall be amended by amending and restating the table therein in its entirety as follows:

 

Partnership Managing Member / Lessor Managing Member / Borrower Subsidiary (Other Non-Financed Structure)

Equity Interests Owned as of date related Partnership or Lessor Partnership becomes a Subject Fund

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

(b) Appendix 1 of the Loan Agreement shall be amended and restated as set forth in Exhibit 1 attached hereto;

(c) Appendix 4 of the Loan Agreement shall be amended and restated as set forth in Exhibit 2 attached hereto; and

(d) Appendix 5 of the Loan Agreement shall be amended and restated as set forth in Exhibit 3 attached hereto.

Section 2. Consents .  Subject to the prior satisfaction of the conditions precedent described in Section 3 hereof:

(a) the Required Group Agents consent to the Loan Agreement Amendments, with acknowledgement by each of the Administrative Agent and the Collateral Agent;

(b) the Administrative Agent and the Required Group Agents consent to the Subject Fund Transactions pursuant to and in accordance with Section 2.10(a) of the Loan Agreement;

 

2

Required Group Agent Action No. 34

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

(c) the Required Group Agents and the Administrative Agent hereby consent and agree that the deadline for delivery of the audited fiscal year 2016 financial statements of the Borrower , each Managing Member and the [***] pursuant to Sections 5.3(f)(A) , (C) , and ( D ) of the Loan Agreement is hereby extended to May 31, 2017 ; and

(d) the Required Group Agents and the Administrative Agent hereby consent and agree that the deadline for delivery of the unaudited financial statements of SolarCity for the first fiscal quarter of 2017 pursuant to Section 5.3(e)(B) of the Loan Agreement is hereby extended to June 15, 2017.

Section 3. Conditions Precedent.   This Action shall be effective upon the satisfaction of the following conditions precedent:

(a) The Administrative Agent shall have received counterparts of this Action, executed and delivered by each of the other parties hereto.

(b) The Administrative Agent shall have received a certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with respect to [***] and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Agreement is true and correct in all material respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).

(c) The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from [***] in connection with the Subject Fund Transactions.

(d) Each of the Administrative Agent and each Group Agent shall have received an opinion, dated no earlier than the Effective Date, of Wilson Sonsini Goodrich & Rosati, counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.

(e) Each of the Administrative Agent and each Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.

(f) The Administrative Agent and the Collateral Agent shall have received (i) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each of the New Entities and the Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured

 

3

Required Group Agent Action No. 34

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Parties) in the Collateral in respect of the New Entities (the “ New Collateral ”), (ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), (c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.

(g) The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Effective Date, (ii) a Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], the Collateral Agent and the Borrower, dated as of the Effective Date, (iii) a Joinder Agreement in the form attached as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***] and the Collateral Agent, dated as of the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the Administrative Agent with respect to the New Entities.

(h) (i) The UCC financing statements relating to the New Collateral shall have been duly filed in each office and in each jurisdiction where required in order to create and perfect the first priority Lien and security interest set forth in the Collateral Documents (as supplemented and as such term is defined in the Loan Agreement, as amended) and (ii) the Borrower shall have properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and the pledged interests in [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies .

(i) Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been satisfied with respect to the Subject Fund Transactions.

(j) The Administrative Agent shall have received for its own account all costs and expenses described in Section 6 of this Action, for which invoices have been presented in connection herewith.

Section 4. Reference to and Effect on Financing Documents. Each of the Loan Agreement and the other Financing Documents is and shall remain unchanged and in full force and effect, and, except as expressly set forth herein, nothing contained in this Action shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or any of the other Secured Parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in each of the Loan Agreement and any other Financing Document . This Action shall also constitute a “Financing Document” for all purposes of the Loan Agreement and the other Financing Documents.

Section 5. Incorporation by Reference .  Sections 10.5 ( Entire Agreement ), 10.6 ( Governing Law ), 10.7 ( Severability ), 10.8 ( Headings ), 10.11 ( Waiver of Jury Trial ), 10.12 ( Consent to Jurisdiction ), 10.14 ( Successors and Assigns ) and 10.16 ( Binding Effect; Counterparts ) of the Loan Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

4

Required Group Agent Action No. 34

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Section 6. Expenses. The Borrower agrees to reimburse the Administrative Agent in accordance with Section 10.4(b) of the Loan Agreement for its reasonable and documented out-of-pocket expenses in connection with this Action, including reasonable and documented fees and out-of-pocket expenses of legal counsel.

Section 7. Construction. The rules of interpretation specified in Section 1.2 of the Loan Agreement also apply to this Action, mutatis mutandis.

[ Signature Pages Follow ]

 

5

Required Group Agent Action No. 34

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF, the parties hereto have caused this Action to be duly executed by their respective authorized officers as of the day and year first written above.

 

MEGALODON SOLAR, LLC ,

as Borrower

 

By:

/s/ Lyndon Rive

Name:

Lyndon Rive

Title:

President

 

 

BANK OF AMERICA, N.A. ,

as a Group Agent

 

By:

/s/ Spencer Hunsberger

Name:

Spencer Hunsberger

Title:

Director

 

 

CIT BANK, N.A. ,

as a Group Agent

 

By:

/s/ Joseph Gyurindak

Name:

Joseph Gyurindak

Title:

Director

 

CREDIT SUISSE AG, NEW YORK BRANCH ,

as a Group Agent

 

By:

/s/ Erin McCutcheon

Name:

Erin McCutcheon

Title:

Vice President

 

 

By:

/s/ Oliver Nisenson

Name:

Oliver Nisenson

Title:

Director

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

as a Group Agent

 

By:

/s/ Birgit Brinda

Name:

Birgit Brinda

Title:

Director

 

 

By:

/s/ Rich Mauro

Name:

Rich Mauro

Title:

Vice President

 

 

[ Signature Page to Required Group Agent Action No. 34 ]

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 


ING CAPITAL, LLC ,

as a Group Agent

 

By:

/s/ Thomas Cantello

Name:

Thomas Cantello

Title:

Managing Director

 

 

By:

/s/ Mark Parrish

Name:

Mark Parrish

Title:

Vice President

 

 

KEYBANK NATIONAL ASSOCIATION ,

as a Group Agent

 

By:

/s/ Benjamin C. Cooper

Name:

Benjamin C. Cooper

Title:

Vice President

 

 

National Bank of Arizona ,

as a Group Agent

 

By:

/s/ Robert E. Cooper, Jr.

Name:

Robert E. Cooper, Jr.

Title:

Vice President

 

 

SILICON VALLEY BANK ,

as a Group Agent

 

By:

/s/ Sayoji Goli

Name:

Sayoji Goli

Title:

Vice President

 

BANK OF AMERICA, N.A.

as Administrative Agent and Collateral Agent

 

By:

/s/ Darleen R. DiGrazia

Name:

Darleen R. DiGrazia

Title:

Vice President

 

 

[ Signature Page to Required Group Agent Action No. 34 ]

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT 1

APPENDIX 1

ADVANCE RATE

The “Advance Rate” means

(i)           For a Subject Fund the following percentages:

 

Subject Fund

Advance Rate

Cash Sweep Fund or
Non-Cash Sweep Fund

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

Exhibit 1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

(ii)             In respect of any Potential New Fund that becomes a Subject Fund, a percentage as shall be determined in accordance with this Appendix 1 following the completion of due diligence by the Administrative Agent, which by way of example shall be:

 

Advance Rate

For each Cash Sweep Fund, Non-Cash Sweep Fund and Other Structure, the Advance Rate will be the percentage determined for each System in such Subject Fund based on the “Type of Fund,” in accordance with the table below.

Type of Fund

 

 

 

Cash Sweep Fund

(baseline: CB (see below))

[***]

 

 

Non Cash Sweep
Fund

([***] baseline)

[***]

 

 

Other Non-Financed Structure

([***] baseline)

[***]

 

 

Other Financed Structure

[***]

 

 

 

CB ” or “ Cash Sweep Fund Baseline ” means, the lesser of (a) [***] and (b) the percentage obtained by dividing (i) the maximum amount of debt that can be fully supported by Net Cash Flows distributable to the Managing Member(s) of such Subject Fund assuming interest is accruing at the Default Rate when applying the ITC Downside Case to that particular Subject Fund and only that Subject Fund by (ii) the Discounted Solar Asset Balance of such Subject Fund.

ITC Downside Case ” means a scenario in which a 30% reduction in fair market value occurs in the first month that a Subject Fund is included in the Available Borrowing Base and the Aggregate Advance Model is adjusted to calculate the Net Cash Flows distributable to the Managing Member(s) of such Subject Fund in light of such reduction in fair market value and any applicable Cash Sweep Event (as defined in Appendix 7 ).

For avoidance of doubt, the amounts set forth in this clause (ii) are indicative subject to final determination by the Administrative Agent at the time such Subject Fund is included in the Available Borrowing Base;

(iii)           [Reserved].

(iv)           All PV Systems in any Watched Fund shall have an Advance Rate of [***] for purposes of calculating the Available Borrowing Base. For avoidance of doubt, this shall include any PV Systems in a Watched Fund that were financed in previous tranches and whose Net Cash Flows were incorporated in previous Available Borrowing Base calculations.

(v)           To the extent that, despite negotiating in good faith, the Administrative Agent and the Borrower cannot agree on the Advance Rate under clause (ii) of this Appendix 1 , the Advance Rate

Exhibit 1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

determined by the Administrative Agent, acting at the direction of the Majority Group Agents, shall prevail.

 

Exhibit 1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT 2

APPENDIX 4

TAX EQUITY STRUCTURES, PARTNERSHIPS, LESSOR PARTNERSHIPS, LESSORS, SUBJECT FUNDS, MANAGING MEMBERS, FUNDED SUBSIDIARIES, LESSEES, CASH SWEEP DESIGNATIONS AND INVESTORS

 

Tax Equity Structure

Partnership /
Lessor Partnership

(Subject Fund)

Partnership Managing Member / Lessor Partnership Managing Member

Funded Subsidiaries

(Subject Fund and Managing Member, if any)

Lessee

Full Cash-Sweep Fund, Partial Cash-Sweep Fund or Non-Cash Sweep Fund

Investor(s)

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

 

Exhibit 2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT 3

APPENDIX 5

PROJECT DOCUMENTS

 

1.

[***] Subject Fund

 

Master Lease, dated as of [***], by and between [***] and [***].

 

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State).

 

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and among [On File with Administrative Agent], [***] and [***].

 

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***], by [***].

 

Pass-Through Agreement, dated as of [***], by and between [***] and [***].

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent], [***] and [***]

 

2.

[***] Subject Fund

 

Master Lease, dated as of [***], by and between [***] and [***].

 

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State) by and among SolarCity, [***] and [***].

 

First Amendment to Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and between [On File with Administrative Agent] and [***].

 

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***], by Megalodon Solar, LLC.

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Pass-Through Agreement, dated as of [***] , by and between [***] and [***] .

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent] and [***].

 

3.

[***] Subject Fund

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Contribution Agreement (Systems), dated as of [***], by and among [***], [***], Megalodon Solar, LLC and [***].

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

 

4.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Second Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Asset Management Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Purchase and Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity Corporation, [***], [***] and [On File with Administrative Agent].

 

Amendment Agreement, dated as of [***], by and among SolarCity Corporation, [***], [***] and [On File with Administrative Agent].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

Accession Agreement, dated as of [***], by and among SolarCity Corporation, [***] and [***].

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

5.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amendment No. 1 to Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

Accession Agreement, dated as of [***], by and among [***], SolarCity Corporation and [***].

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

6.

[***] Subject Fund

 

Master Lease Agreement, dated as of [***], by and between [***] and [***].

 

Omnibus Amendment No. 1 and Consent, dated as of [***], by and among SolarCity Corporation, [***] and [***], as acknowledged by [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Independent Manager Agreement, dated as of [***], by and among [***], [***] and [***].

 

Security Agreement, dated as of [***], by and between [***] and [***].

 

Depositary Agreement, dated as of [***], by and between [***] and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

UCC-1, filed [***] , designating [***] , as “ [***] ”, and [***] , as “ [***] ”.

 

Each Contribution Agreement entered into by and among SolarCity Corporation, [***] and the other parties thereto.

 

Each Assignment and Assumption Agreement entered into by and between [***] and [***].

 

7.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [***] and [On File with Administrative Agent].

 

Transition Manager Agreement, dated as of [***], by and among [***], SolarCity Corporation, [On File with Administrative Agent] and [***].

 

8.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Guaranty, dated as of [***] , by SolarCity Corporation in favor of [On File with Administrative Agent].

 

9.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent].

 

10.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Asset Management Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

 

Capital Modification Rights Agreement, dated [***], by and among SolarCity, [***] and [On File with Administrative Agent].

 

Guaranty, dated as of [***], from [***] in favor of [***] and [On File with Administrative Agent].

 

Guaranty, dated as of [***], from [On File with Administrative Agent] in favor of [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Exhibit 10.6

REQUIRED GROUP AGENT ACTION NO. 35

This REQUIRED GROUP AGENT ACTION NO. 35 ( this “ Action ”), dated as of June 15, 2017, is entered into by and among Megalodon Solar, LLC, a Delaware limited liability company (“ Borrower ”), Bank of America, N.A., as the Administrative Agent (“ Administrative Agent ”) and as the Collateral Agent for the Secured Parties (“ Collateral Agent ”) and each of Bank of America, N.A. (“ BA Agent ”), Credit Suisse AG, New York Branch (“ CS Agent ”), Deutsche Bank AG, New York Branch (“ DB Agent ”), ING Capital LLC (“ ING Agent ”), KeyBank National Association (“ KB Agent ”), National Bank of Arizona (“ NBAZ Agent ”), Silicon Valley Bank (“ SVB Agent ”) and CIT Bank, N.A. (“ CIT Agent ” and collectively with BA Agent, CS Agent, DB Agent, ING Agent, KB Agent, NBAZ Agent and SVB Agent, the “ Group Agents ”), as Group Agents party to the Loan Agreement, dated as of May 4, 2015 (as amended, the “ Loan Agreement ”), by and among the Borrower, the Administrative Agent, the Collateral Agent, the Group Agents, the Lenders and the other parties from time to time party thereto.   As used in this Action, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Loan Agreement .

A. Pursuant to the Loan Agreement, the Lenders have agreed to extend credit to the Borrower, in each case pursuant to the terms and subject to the conditions set forth in the Financing Documents.

B. Pursuant to Required Group Agent Action No. 34, dated as of May 15, 2017, by and among the parties hereto (“ GAA 34 ”), the Borrower requested and the Group Agents consented to extend the deadline for delivery of the audited fiscal year 2016 financial statements of the Borrower and each Managing Member pursuant to Sections 5.3(f)(A) and (C) of the Loan Agreement to May 31, 2017, subject to the conditions therein (the “ Prior Consent ”).

C. The Borrower has requested that the Required Group Agents provide their consent to the extension of the deadline for satisfying the requirements of the Prior Consent as required under GAA 34 to July 31, 2017 (the “ Extension ”).

D. The Required Group Agents are willing to provide their consent to the Extension on the terms and subject to the conditions set forth in this Action.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

Section 1. Consent .  Subject to the satisfaction of the conditions precedent described in Section 2 hereof, each Agent and Lender party hereto, by its signature below, agrees to the Extension and to deem the requirements of Section 5.3(f) of the Loan Agreement satisfied in whole for the fiscal year ended 2016 upon receipt of audited fiscal year 2016 financial statements of the Borrower and each Managing Member, in each case, to the satisfaction of the Administrative Agent.

 

Required Group Agent Action No. 35

 


 

Section 2. Effectiveness .  This Action shall be effective upon the receipt by the Administrative Agent of counterparts of this Action, executed and delivered by each of the other parties hereto.

Section 3. Representations and Warranties .  The Borrower hereby represents and warrants as of the Effective Date:

(a) the Borrower has duly authorized, executed and delivered this Action, and none the Borrower’s execution and delivery hereof nor the performance hereof (i) will be in conflict with or result in a breach of the Borrower’s Organizational Documents, (ii) will materially violate any other Legal Requirement applicable to or binding on the Borrower or any of its respective properties, (iii) will result in any breach of or constitute any default under, or result in or require the creation of any Lien (other than Permitted Liens) upon any of the Collateral under any agreement or instrument to which it is a party or by which the Borrower or any of the Collateral may be bound or affected, or (iv) will require the consent or approval of any Person, which has not already been obtained;

(b) this Action is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and subject to general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law);

(c) no Bankruptcy Event has occurred with respect to SolarCity; and

(d) no Material Adverse Effect has occurred or is continuing since the immediately preceding Borrowing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.

Section 4. Reference to and Effect on Financing Documents .  Each of the Loan Agreement and the other Financing Documents is and shall remain unchanged and in full force and effect, and, except as expressly set forth herein, nothing contained in this Action shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or any of the other Secured Parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in each of the Loan Agreement and any other Financing Document .  This Action shall also constitute a “Financing Document” for all purposes of the Loan Agreement and the other Financing Documents.

Section 5. Incorporation by Reference .   Sections 10.5 ( Entire Agreement ), 10.6 ( Governing Law ), 10.7 ( Severability ), 10.8 ( Headings ), 10.11 ( Waiver of Jury Trial ), 10.12 ( Consent to Jurisdiction ; Service of Process ), 10.14 ( Successors and Assigns ) and 10.16 ( Binding Effect; Counterparts ) of the Loan Agreement are hereby incorporated by reference herein, mutatis mutandis.

 

 

2

Required Group Agent Action No. 35

 


 

Section 6. Expenses.   The Borrower agrees to reimburse the Administrative Agent in accordance with Section 10.4(b) of the Loan Agreement for its reasonable and documented out-of-pocket expenses in connection with this Action, including reasonable and documented fees and out-of-pocket expenses of legal counsel.

Section 7. Construction.   The rules of interpretation specified in Section 1.2 of the Loan Agreement also apply to this Action, mutatis mutandis.

[ Signature Pages Follow ]

 

 

 

 

3

Required Group Agent Action No. 35

 


 

IN WITNESS WHEREOF, the parties hereto have caused this Action to be duly executed by their respective authorized officers as of the day and year first written above.

 

MEGALODON SOLAR, LLC ,

as Borrower

 

By:

/s/ Radford Small

Name:

Radford Small

Title:

Treasurer

 

 

BANK OF AMERICA, N.A. ,

as a Group Agent

 

By:

/s/ Spencer Hunsberger

Name:

Spencer Hunsberger

Title:

Director

 

 

CIT BANK, N.A. ,

as a Group Agent

 

By:

/s/ Joseph Gyurindak

Name:

Joseph Gyurindak

Title:

Director

 

CREDIT SUISSE AG, NEW YORK BRANCH ,

as a Group Agent

 

By:

/s/ Patrick Duggan

Name:

Patrick Duggan

Title:

Associate

 

 

By:

/s/ Michael Eaton

Name:

Michael Eaton

Title:

Associate

 

 


ING CAPITAL, LLC ,

as a Group Agent

 

By:

/s/ Thomas Cantello

Name:

Thomas Cantello

Title:

Managing Director

 

 

By:

/s/ Mark Parrish

Name:

Mark Parrish

Title:

Vice President

 

 

[Signature Page to Required Group Agent Action No. 35]


 

KEYBANK NATIONAL ASSOCIATION ,

as a Group Agent

 

By:

/s/ Benjamin C. Cooper

Name:

Benjamin C. Cooper

Title:

Vice President

 

 

National Bank of Arizona ,

as a Group Agent

 

By:

/s/Craig Robb

Name:

Craig Robb

Title:

Executive Vice President

 

 

SILICON VALLEY BANK ,

as a Group Agent

 

By:

/s/ Sayoji Goli

Name:

Sayoji Goli

Title:

Vice President

 

BANK OF AMERICA, N.A.

as Administrative Agent and Collateral Agent

 

By:

/s/ Darleen R. DiGrazia

Name:

Darleen R. DiGrazia

Title:

Vice President

 

[Signature Page to Required Group Agent Action No. 35]

Exhibit 10.7

 

CONFIDENTIAL TREATMENT REQUESTED

Certain portions of this document have been omitted pursuant to a request for Confidential Treatment and, where applicable, have been marked with “[***]” to indicate where omissions have been made. The confidential material has been filed separately with the Securities and Exchange Commission.

REQUIRED GROUP AGENT ACTION NO. 36

This REQUIRED GROUP AGENT ACTION NO. 36 (this “ Action ”), dated as of June 23, 2017 (the “ Effective Date ”), is entered into by and among Megalodon Solar, LLC, a Delaware limited liability company (“ Borrower ”), Tesla, Inc., a Delaware corporation (“ Tesla ”), SolarCity Corporation, a Delaware corporation (“ SolarCity ”), Bank of America, N.A., as the Administrative Agent (“ Administrative Agent ”) and the Collateral Agent for the Secured Parties (“ Collateral Agent ”), Bank of America, N.A., as Depositary (the “ Depositary ”) and each of Bank of America, N.A. (“ BA Agent ”), Credit Suisse AG, New York Branch (“ CS Agent ”), Deutsche Bank AG, New York Branch (“ DB Agent ”), ING Capital LLC (“ ING Agent ”), KeyBank National Association (“ KB Agent ”), National Bank of Arizona (“ NBAZ Agent ”), Silicon Valley Bank (“ SVB Agent ”) and CIT Bank, N.A. (“ CIT Agent ” and collectively with BA Agent, CS Agent, DB Agent, ING Agent, KB Agent, NBAZ Agent and SVB Agent, the “ Group Agents ”), as Group Agents party to the Loan Agreement, dated as of May 4, 2015 (as amended, modified or supplemented from time to time, the “ Loan Agreement ”), by and among the Borrower, Administrative Agent, Collateral Agent, the Group Agents, the Lenders and the other parties from time to time party thereto.  As used in this Action, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

A. The Borrower has requested the parties hereto to amend the Loan Agreement and the CADA as set forth in more detail herein;

B. SolarCity, in its capacity as Limited Guarantor, desires to assign certain rights and obligations as Limited Guarantor under the Loan Agreement and Tesla desires to accept such rights and obligations;

C. The Borrower desires to amend certain Project Documents under the [***] Subject Fund to [***], as set forth in more detail herein;

D. Each of the Borrower, Tesla, SolarCity, the Required Group Agents, the Administrative Agent, the Collateral Agent and, solely with respect to the CADA, the Depositary, desire to amend the Loan Agreement, amend the CADA, effect the Commitment Reduction (defined below) and effect the Limited Guarantor Assignment (defined below), in each case, as set forth herein.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto agree as follows:

Section 1. Assignment .  Subject to the prior satisfaction of the conditions precedent set forth in Section 6 hereof, SolarCity, in its capacity as Limited Guarantor, hereby irrevocably assigns, transfers and delegates all of its rights, duties, obligations and liabilities under Sections 11.1 through 11.10 of the Loan Agreement, to Tesla,  and Tesla hereby irrevocably accepts such assignment, transfer and delegation of SolarCity’s rights, duties, obligations and liabilities under Sections 11.1 through 11.10 of the Loan Agreement, including any such obligations under Sections 11.1 through 11.10 of the Loan Agreement that arose prior to, or relate to the period prior to, the Effective Date (the “ Limited Guarantor Assignment ”).

 

 

 

1

Required Group Agent Action No. 36

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Section 2. Reduction of Commitments .

a. In accordance with Section 2.2(c) of the Loan Agreement, the Borrower hereby reduces the Commitments to a total of $600,000,000 (the “ Commitment Reduction ”).

b. The Borrower hereby represents that immediately after the reduction in Commitments set forth in clause a. above is effected, the amount of Outstanding Principal does not exceed the Total Loan Commitment.

c. The Administrative Agent acknowledges and agrees that the Borrower notified it of the Borrower’s election to reduce the Commitments to a total of $600,000,000 and such notice was at least three (3) Business Days prior to the date hereof.

d. The Commitment Reduction was effected by reductions in each Lender’s commitments as set forth in Addendum B hereto. Each reduction is permanent as set forth in Section 2.2(e) of the Loan Agreement.

e. In accordance with the Loan Agreement Amendments, the Schedule of Lender Commitments set forth on Annex 3 to the Loan Agreement is restated in its entirety to reflect the Commitment Reduction.

Section 3. Amendments to the Loan Agreement.   Subject to the prior satisfaction of the conditions precedent described in Section 6 hereof, the Loan Agreement will be amended as follows (the “ Loan Agreement Amendments ”):

a. The preamble to the Loan Agreement shall be amended and restated as follows:

“This LOAN AGREEMENT, dated as of May 4, 2015 (this “ Agreement ”), is made by and among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), each of the Conduit Lenders that is a signatory to this Agreement identified as a “ Conduit Lender ” on the signature pages to this Agreement and listed on Annex 2 or that shall become a “ Conduit Lender ” under this Agreement pursuant to the terms of this Agreement (individually, a “ Conduit Lender ” and, collectively, the “ Conduit Lenders ”), each of the Committed Lenders that is a signatory to this Agreement identified as a “ Committed Lender ” on the signature pages to this Agreement and listed on Annex 2 or that shall become a “ Committed Lender ” under this Agreement pursuant to the terms of this Agreement (individually, a “ Committed Lender ” and, collectively, the “ Committed Lenders ”), each of the Group Agents that is a signatory to this Agreement identified as a “ Group Agent ” on the signature pages to this Agreement and listed on Annex 2 or that shall become a “ Group Agent ” under this Agreement pursuant to the terms of this Agreement (individually, a “ Group Agent ” and, collectively, the “ Group Agents ”), BANK OF AMERICA, N.A., as the collateral agent for the Secured Parties (in such capacity, together with its successors in such capacity, the “ Collateral Agent ”), and as the administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “ Administrative Agent ”, and, together with the Collateral Agent, the “ Agents ”), BANK OF AMERICA, N.A. and CREDIT SUISSE SECURITIES (USA) LLC, as joint structuring agents, BANK OF AMERICA, N.A., CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK AG, NEW YORK BRANCH, and ING CAPITAL LLC, as joint book runners and joint lead arrangers (the “ Joint Lead Arrangers ”) and, solely for

 

 

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purposes of the Limited Guaranty (defined below) and the obligations set forth in Section 10.20 , Tesla, Inc., a Delaware corporation (the “ Limited Guarantor ”).”

b. Section 1.1 ( Definitions ) of the Loan Agreement shall be amended by adding the following definitions in alphabetical order thereto:

“[***].

[***].

Tax Law Change ” means, with respect to any Subject Fund, any “Change in Tax Law” or “Tax Law Change” as defined in the applicable Project Documents involving a change to the applicable corporate tax rate or, to the extent not defined in the applicable Project Documents, any change in federal income tax law involving a change to the applicable corporate tax rate.

Tesla ” means Tesla, Inc., a Delaware corporation, its successors and assigns.

Transmission Provider ” means one of three entities: the interconnecting utility, a regional transmission operator (RTO) or an independent system operator (ISO).

c. Section 1.1 ( Definitions ) of the Loan Agreement shall be amended by deleting the following definitions in their entirety and replacing them with the following:

Applicable Margin ” means with respect to the Loans, 2.75% per annum.

Availability Period ” means a period commencing on the Closing Date and ending on December 31, 2018; provided , that the Availability Period may be extended upon the mutual agreement of the Administrative Agent, the Group Agents and the Borrower pursuant to Section 2.12 ; provided , further , that in no event shall the Availability Period exceed the Loan Maturity Date.

“A “ Change in Control ” shall be deemed to have occurred if:

(a) the Limited Guarantor (or any successor entity thereto) shall cease to directly or indirectly own, beneficially and of record, 100% of the issued and outstanding equity interests in Member;

(b) Member shall cease to directly own, beneficially and of record, 100% of the issued and outstanding equity interests in the Borrower;

(c) the Borrower shall cease to directly own, beneficially and of record, 100% of the issued and outstanding equity interests in each Borrower Subsidiary Party

(d) Borrower Subsidiary Party directly transfers any of the Equity Interests owned by it in the related Subject Fund as of the date the Subject Fund becomes a Subject Fund under this Agreement and as such Equity Interests are set forth on Schedule 1.1(b) hereto (as such schedule may be updated prior to the funding of any new Subject Fund after the Closing Date);

 

 

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provided , that any disposition that would otherwise be a Change in Control that (x) complies with the terms of Section 2.10 or Section 6.4 or (y) is otherwise required under the applicable Project Documents shall, in each case, not be deemed to be a Change in Control.”

Hedge Trigger Event ” means the occurrence of LIBOR for a three (3) month Interest Period being greater than or equal to one percent (1.00%).

Investor ” means (i) tax equity investors or affiliates thereof who invest cash through a Tax Equity Structure and (ii) each investor in any Other Financed Structure other than any Affiliate of Limited Guarantor or SolarCity, as the case may be.  Each Investor is listed on Appendix 4 , as such Appendix may be updated from time to time in accordance with the terms hereof.

Limited Guarantor ” means Tesla.

Limited Guaranty ” means the obligations of Limited Guarantor set forth in Sections 11.1 through 11.10 of the Loan Agreement.

Loan Maturity Date ” ” means the earlier of (a) (i) with respect to all Loans other than Incremental Loans, December 31, 2019, and (ii) with respect to each Incremental Loan, the maturity date specified in the terms of the Incremental Loan Commitment related to such Incremental Loan, in each case of the foregoing clauses (i) and (ii), subject to extension pursuant to Section 2.12 and (b) the date of acceleration of the Loans pursuant to Section 8.2 .

PBI ” means a performance-based incentive paid as a stream of periodic payments by a utility or state or local Governmental Authority based on the production of a PV System, without any liability for failure to deliver a minimum amount of such production, as an inducement to a utility customer, solar company or installer to install or use solar equipment, expressly excluding SRECs and rebates; provided, however , any zero emissions Renewable Energy Credit program  or similar program which may be characterized as a Renewable Energy Credit program, for which a utility or Governmental Authority contracts with SolarCity or an Affiliate thereof for a fixed term to pay for such Renewable Energy Credits are PBIs and shall be treated as PBIs for purposes of the Financing Documents.

Prohibited Manufacturer ” means (a) with respect to any Tax Equity Structure or Other Financed Structure the Project Documents in respect of which set forth a list of approved manufacturers, (i) any manufacturer not set forth on such list of approved manufacturers, (ii) with respect to photovoltaic panels, [***], [***], [***], [***], [***], [***] or [***] and (iii) with respect to inverters, [***], [***], [***] or [***], (b) for any Subject Fund without an express approved manufacturers list, any manufacturer of photovoltaic panels or inverters other than those set forth in Appendix 8, as such Appendix 8 may be updated from time to time upon approval of the Administrative Agent and the Majority Group Agents.

Responsible Officer ” means, as to any Person, its president, chief executive officer, chief operating officer, chief financial officer, general counsel, controller or treasurer, or any managing general partner or managing member of such Person that is a

 

 

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natural person (or any of the preceding with regard to any managing general partner or managing member of such Person that is not a natural person) and responsible for the administration of the obligations of such Person in respect of this Agreement, or with respect to any Loan Party, Borrower Subsidiary Party, Limited Guarantor or SolarCity, any other officer or employee of such Person designated in or pursuant to an agreement between such Person and the Administrative Agent.

SREC ” means the definition “ SRECs ”, “ RECs ” or “ Renewable Energy Credits ”, as applicable, given in the applicable Project Documents of the applicable Subject Fund, but in any event, includes credits, credit certificates, green tags or similar environmental or green energy attributes (such as those for greenhouse gas reduction or the generation of green power or renewable energy) created by a Governmental Authority of any State or local jurisdiction and/or independent certification board or group generally recognized in the electric power generation industry, and generated by or associated with any System or electricity produced therefrom.  For the avoidance of doubt, any zero emissions renewable energy credit program (ZREC) or similar program which may be characterized as a Renewable Energy Credit program for which a utility or local Government Authority contracts with SolarCity, or an Affiliate thereof, for a fixed term to pay for such renewable energy credits are not considered SRECs under the Financing Documents.

Sweep Event ” means the occurrence and continuation of the following:

(a) the Managing Member Payment Level is less than 90%;

(b) (i) a Bankruptcy Event of SolarCity or the Limited Guarantor, as the case may be, or (ii) the Limited Guarantor does not have either of the following: (A) a corporate issuer rating by S&P of BBB- or Moody’s is Baa3, or (B) tangible net worth (defined as total assets less intangible assets less total liabilities, in each case as those terms are defined for GAAP purposes and as reflected on the Limited Guarantor’s most recent financial statements) of at least four hundred million dollars ($400,000,000) and the Limited Guarantor has total unrestricted cash, cash equivalents and investments with maturity of less than 12 months (as determined under GAAP) of at least one hundred fifty million dollars ($150,000,000); or

(c) the termination or expiration of the Availability Period.

Tax Loss Indemnity ” means, with respect to any Subject Fund, any obligation of SolarCity or the Limited Guarantor, as the case may be, to indemnify the applicable Subject Fund, Investor or Lessor for any Tax Loss in accordance with the applicable Project Documents of such Subject Fund.

Tax Loss Policy ” means, with respect to each Subject Fund, a policy of insurance or other credit enhancement product for the benefit of the Collateral Agent, under which the Tax Loss Insurer will, subject to the terms and conditions of the Tax Loss Policy, pay, or such other credit enhancement product will be used to pay, to the Collateral Agent the amount of any Tax Loss Indemnity which Limited Guarantor or SolarCity, as the case, has failed to pay as required under the applicable Project Documents, up to an aggregate amount and subject to a retention limit, deductible or other similar amount, substantially similar to any Tax Loss Policies previously approved

 

 

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by the Administrative Agent or otherwise approved by the Administrative Agent in its reasonable discretion.

d. The term “SolarCity” shall be replaced with the term “the Limited Guarantor” in Sections 5.4(e), 9.14(a), 10.14(a) and 10.14(b) of the Loan Agreement.

e. The term “SolarCity” shall be replaced with the term “SolarCity or the Limited Guarantor, as the case may be,” in Sections 2.1(f)(ii), 2.10(b), 5.2(a), 5.2(b), 5.2(d), 5.6(b)(i), 5.6(e) and 6.6(d) of the Loan Agreement.  

f. The term “Guarantor” shall be replaced with the term “Limited Guarantor” in Sections 11.1 and 11.10(d) of the Loan Agreement.

g. Section 2.10(a) ( Addition of Subject Funds; Release of Subject Funds ) of the Loan Agreement is hereby amended by adding the following sub-clause (vi):

“(vi) The Administrative Agent will cooperate in good faith to develop a mutually agreeable process with Borrower and the Limited Guarantor in accordance with Section 5.6(c) .”

h. Sections 2.13 ( Interest Rate Protection ) of the Loan Agreement shall be amended by deleting clauses (a) and (b) thereof in their entirety and replacing them with the following:

(a) With respect to the initial Borrowing Date, no later than ten (10) Business Days after such Borrowing Date, and for each Borrowing Date thereafter, no later than five (5) Business Days after such Borrowing Date, the Borrower shall enter into one or more interest rate swap agreements (each, an “ Interest Rate Hedge Agreement ”) commencing on the date following termination of the Availability Period and ending on the final day of the amortization schedule set forth in the most recently delivered Aggregate Advance Model (i) with one or more Acceptable Hedge Banks (each such Acceptable Hedge Bank, an “ Interest Rate Hedge Counterparty ”), (ii) in form and substance (x) reasonably acceptable to each such Interest Rate Hedge Counterparty and (y) substantially similar to one or more Interest Rate Hedge Agreements previously approved by the Administrative Agent or otherwise reasonably acceptable to the Administrative Agent, (iii) for an aggregate notional principal amount across all Interest Rate Hedge Agreements and Interest Rate Cap Agreements at least equal to 75% of the Outstanding Principal and not more than 105% of the Outstanding Principal during each quarterly period reflected in the amortization schedule set forth in the most recently delivered Aggregate Advance Model and after giving effect to the Loans requested to be made on such Borrowing Date, (iv) with a swap rate which is equal to the Swap Rate in effect on such Borrowing Date and (v) with an amortization schedule which is determined using the methodology used to calculate the Swap Rate.

(b) Within three (3) Business Days of the occurrence of a Hedge Trigger Event and, so long as such Hedge Trigger Event continues, on each Scheduled Calculation Date thereafter, the Borrower shall have entered into either (A) one or more interest rate cap agreements (each, an “ Interest Rate Cap Agreement ”) with one or more Acceptable Hedge Banks (each such Acceptable Hedge Bank, an “ Interest Rate Cap Counterparty ”) or (B) one or more Interest Rate Hedge Agreements with one or more Interest Rate Hedge Counterparties commencing on the execution date of such Interest Rate Hedge

 

 

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Agreement, in each case, (i) in form and substance (x) reasonably acceptable to each such Interest Rate Cap Counterparty or Interest Rate Hedge Counterparty, as the case may be, and (y) substantially similar to Interest Rate Cap Agreements or Interest Rate Hedge Agreements previously approved by the Administrative Agent or otherwise reasonably acceptable to the Administrative Agent, (ii) for an aggregate notional principal amount across all Interest Rate Caps and Interest Rate Hedge Agreements for each Interest Period prior to the expiration or termination of the Availability Period at least equal to 75% of the Outstanding Principal and not more than 105% of the Outstanding Principal, (iii) with respect to an Interest Rate Cap Agreement, (x) in respect of which the sole payment obligation of the Borrower is a premium that is payable upon the execution of such Interest Rate Cap Agreement and (y) with a strike rate which is not more than 2.0% and (z) which provides for payments to the Borrower on each Scheduled Payment Date during the Availability Period and (iv) with respect to an Interest Rate Hedge Agreement, meets the requirements set forth in sub-clauses (iv) and (v) set forth in clause (a) of this Section 2.13 .  

i. Section 3.2(j) of the Loan Agreement is hereby deleted in its entirety and replaced with “[Reserved]”.

j. Section 4.1 ( Representations and Warranties ) of the Loan Agreement is hereby amended by deleting clause (l) thereof in its entirety and replacing it with the following:

“(l) Asset-Backed Commercial Paper .  The Borrower has not and does not (x) issue any obligations that (a) constitute asset-backed commercial paper, or (b) are securities required to be registered under the Securities Act of 1933 or that may be offered for sale under Rule 144A of the Securities and Exchange Commission thereunder, or (y) issue any other debt obligations or equity interests other than equity interests issued to the Member under the terms of the limited liability company agreement of Borrower. The assets and liabilities of Borrower are consolidated with the assets and liabilities of Limited Guarantor for purposes of generally accepted accounting principles.”

k. Section 5.3 ( Portfolio Reports; Financial Statements ) of the Loan Agreement shall be amended by deleting clauses (e) and (f) thereof in their entirety and replacing them with the following:

“(e) As soon as available but no later than forty-five (45) days after the close of each quarterly fiscal period, quarterly unaudited consolidated financial statements of the (A) the Borrower, (B) the Limited Guarantor (if such financial statements are not otherwise publicly available), which such financial statements shall include a footnote to indicate the separateness of Borrower from the Limited Guarantor and will indicate that the obligations hereunder are non-recourse to the general credit of the Limited Guarantor, (C) each Managing Member ( provided , that unaudited consolidating financial statements of the Borrower showing entries on an individual basis with respect to each Managing Member shall satisfy this clause (C)), and (D) each Subject Fund), in each case prepared by the issuing entity in accordance with GAAP and certified by the chief financial officer of the issuing entity as of the end of such period, including a balance sheet and the related statement of income, stockholders’ or member’s equity and cash flows, in each case setting forth comparative figures for the corresponding periods from the prior year, to the extent available; provided, no quarterly financial statements shall be due with respect to the fourth quarter of the fiscal year.

 

 

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“(f) As soon as available but no later than one hundred twenty (120) days after the close of each applicable fiscal year, the audited financial statements, including a balance sheet and the related statement of income, stockholders’ or member’s equity and cash flows, and any footnotes thereto, in each case setting forth comparative figures for the prior year, to the extent available, of (A) the Borrower, as certified by Novogradac & Company LLP or another nationally-recognized independent certified public accountant selected by Borrower and reasonably acceptable to the Administrative Agent, (B) the Limited Guarantor (if such financial statements are not otherwise publicly available), which such financial statements shall include a footnote to indicate the separateness of Borrower from the Limited Guarantor and will indicate that the obligations hereunder are non-recourse to the general credit of the Limited Guarantor, and as certified by a nationally-recognized independent certified public accountant, and (C) each Managing Member, as certified by Novogradac & Company LLP or another nationally-recognized independent certified public accountant selected by Borrower and reasonably acceptable to the Administrative Agent ( provided , that audited consolidating financial statements of the Borrower showing entries on an individual basis with respect to each Managing Member shall satisfy this clause (C) ), and (D) each Subject Fund, as certified by Novogradac & Company LLP or another nationally-recognized independent certified public accountant selected by the applicable Subject Fund pursuant to its operating agreement; provided, the accountant certifications accompanying such audited financial statements shall not be qualified, or limited because of restricted or limited examination by such accountant of any material portion of the records of any entity.  Such audited financial statements shall be certified by the chief financial officer or other similar officer of the issuing entity as of the end of such period.

l. Section 5.3 ( Portfolio Reports; Financial Statements ) of the Loan Agreement is additionally amended by deleting clause (h) thereof in its entirety and replacing it with the following:

“(h) The Group Agents shall have the right to make inquiries with respect to any items delivered pursuant to this Section 5.3 and discuss the same with Responsible Officers of SolarCity, the Limited Guarantor, the Borrower, or the Funded Subsidiaries, as applicable.  Any such inquiries shall be coordinated by and delivered to the Borrower by the Administrative Agent; provided, that for so long as an Event of Default has occurred and is ongoing, such inquiries may be made by a Lender directly to the Borrower.”

m. Section 5.4 ( Reports; Other Information ) of the Loan Agreement is hereby amended by deleting clause (e) in its entirety and replacing it with the following:

“(e) Deliver to the Administrative Agent, for the benefit of each Group Agent and each Lender, no later than one hundred twenty (120) days after the close of each applicable fiscal year, copies of the Certification Pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002 as it relates to the audited financial statements of the Limited Guarantor (if such certifications are not otherwise publicly available).”

n. Section 5.6(c) ( Books, Records, Access ) of the Loan Agreement is hereby amended by deleting clause (c) in its entirety and replacing it with the following:

“(c) Cooperate and cause the Limited Guarantor to cooperate, in each case, in good faith, to develop a mutually agreeable process to periodically conduct sampling and

 

 

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testing of financial processes and reports of the Funded Subsidiaries, including the ability of any representative of any Agent to discuss the affairs, finances and condition of the Borrower and the Funded Subsidiaries with the officers thereof and independent accountants therefor.”

o. Section 5.20 ( Asset-Backed Commercial Paper ) of the Loan Agreement is hereby deleted in its entirety.

p. Article VI ( Negative Covenants of the Borrower ) of the Loan Agreement is hereby amended by adding the following Section 6.22:

“6.22 Asset-Backed Commercial Paper .  Will not, during the term of the Agreement (x) issue any obligations that (a) constitutes asset-backed commercial paper, or (b) are securities required to be registered under the Securities Act of 1933 or that may be offered for sale under Rule 144A of the Securities and Exchange Commission thereunder, or (y) issue any other debt obligations or equity interests other than equity interests issued to the Member under the terms of the limited liability company agreement of Borrower.  

q. Section 8.1 ( Events of Default ) of the Loan Agreement shall be amended by deleting clause (f) in its entirety and replacing it with the following:

“(f) Breach of Terms of Financing Agreements .  (i) Limited Guarantor fails to pay when due or perform its obligations under Sections 11.1 through 11.10 , (ii) the Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 5.1 , 5.12 , 5.13 , Article 6 (excluding Sections 6.10(a)-(d) and 6.19 ) or 11.11 , or (iii) any Loan Party or Borrower Subsidiary Party shall fail to perform or observe any other covenant to be performed or observed by it hereunder or under any Financing Document and not otherwise specifically provided for elsewhere in this Section 8.1 , and such failure shall continue unremedied for a period of thirty (30) days after the Borrower becomes aware of such failure; provided , that if (x) such failure can be remedied, (y) such failure cannot reasonably be remedied within such 30 day period, and (z) the Borrower commences cure of such failure within such 30 day period and thereafter diligently seeks to remedy the failure, then an “Event of Default” shall not be deemed to have occurred until such time as the Borrower ceases reasonable efforts to cure such failure unless such failure continues for a period of 90 calendar days.”

 

 

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r. Section 10.1(a) ( Addresses; Notices ) of the Loan Agreement shall be amended by deleting the notice information for the Borrower and replacing it as follows:

“To the Borrower:

Megalodon Solar, LLC

3055 Clearview Way

San Mateo, CA 94402

Attention:

Legal, Finance

Telephone:

(650) 638-1028

Telecopy:

(650) 638-1029

Email: legal.finance@tesla.com ”

s. Section 10.1(a) ( Addresses; Notices ) of the Loan Agreement shall be further amended by inserting the notice information for the Limited Guarantor as follows:

“To the Limited Guarantor:

Tesla, Inc.

3055 Clearview Way

San Mateo, CA 94402

Attention:

Legal, Finance

Telephone:

(650) 638-1028

Telecopy:

(650) 638-1029

Email: legal.finance@tesla.com ”

t. Section 10.20(a) ( Agreement Not to Petition; Excess Funds ) of the Loan Agreement shall be amended by deleting the phrase “the laws of the United States or any state of the United States” and replacing it with “the laws of the United States, any state of the United States or any other jurisdiction”.

u. Section 10.21(a) ( No Recourse ) of the Loan Agreement is hereby amended by inserting immediately after the phrase “Bankruptcy Code of the United States” the following: “or any similar law in another jurisdiction”.

v. Section 11.1 ( Tax Loss Policies ) of the Loan Agreement is hereby amended by deleting it in its entirety and replacing it with the following:

“11.11 Tax Loss Policies .

(a) The Borrower shall cause, within sixty (60) days of the Closing Date, delivery of a Tax Loss Policy in respect of each Subject Fund listed on Appendix 4 on the Closing Date other than [***] and [***], each in form and substance reasonably acceptable to the Administrative Agent.

(b) Borrower shall cause, within sixty (60) days after a Potential New Fund becomes a Subject Fund, the delivery of a Tax Loss Policy in respect of such Subject Fund in form and substance substantially identical to any prior Tax Loss Policy delivered by Borrower pursuant to this Agreement or otherwise in form and substance reasonably

 

 

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acceptable to the Administrative Agent; provided , however , no Tax Loss Policy shall be required for any Subject Fund:

(i) with an Inverted Lease Structure in respect of which (A) such payments to be made by the Lessee to the Lessor as rent on any date under the lease may not be reduced as a result of any Tax Loss and (B) the amount of distributions on any date from the Lessor to the Borrower may not be reduced as a result of any Tax Loss or non-payment of a Tax Loss Indemnity;

(ii) in respect of which the Investor has expressly subordinated all payments in respect of any Tax Loss Indemnity to the payment of Obligations under the Financing Documents;

(iii) with a Partnership Flip Structure in respect of which (A) the Managing Member has a purchase option with (x) a Purchase Option date that is fixed and not based upon the achievement of a target internal rate of return or otherwise impacted in any way by any Tax Loss or non-payment of a Tax Loss Indemnity and (y) a Purchase Option Price (as defined in the CADA) that is not impacted in any way by any Tax Loss or non-payment of a Tax Loss Indemnity and (B) the amount of distributions on any date from the Partnership to the Partnership Managing Member may not be reduced as a result of any Tax Loss or non-payment of a Tax Loss Indemnity; or

(iv) that benefits from other credit support covering substantially the same risks as a Tax Loss Policy and otherwise reasonably acceptable to the Administrative Agent.

(c) The Borrower shall cause (i) by the deadline set forth in each Tax Loss Policy, the named insured under each Tax Loss Policy to exercise any right thereunder (x) to increase the aggregate amount of such policy (or, in the case of the excess Tax Loss Policy issued by Houston Casualty Company, reduce the amount of such policy) and (y) to reduce the retention limit, deductible or other similar amount in respect thereof, (ii) by the deadline set forth in each Tax Loss Policy, the payment of any additional premium, fee or other amount payable as a result of such action, and (iii) within five (5) Business Days of any action described in clause (i),  the delivery to the Administrative Agent and each Group Agent of evidence of such action.

w. Exhibits A through I are hereby amended by deleting them in their entirety and replacing them with the Exhibits A through I set forth on the attached Addendum A .

x. Annex 2 ( Lenders/Lending Office ) is hereby amended by deleting the phone number for GIFS Capital Company, LLC and replacing it with “ [***] ”.

y. Annex 3 ( Schedule of Lender Commitments ) is hereby amended by deleting it in its entirety and replacing it with the attached Addendum B .

z. Clause (i) of Appendix 1 ( Advance Rate ) to the Loan Agreement shall be amended by revising the Advance Rate (expressed as a percentage) set forth in the table for the Subject Fund of [***] , from “ [***] ” to “ [***] .”

 

 

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aa. The table in clause (ii) to Appendix 1 ( Advance Rate ) labeled “Advance Rate” shall be amended by deleting the table in its entirety and replacing it with the following definition of “Advance Rate”:

Advance Rate ” means, for a given Subject Fund, a percentage equal to (i) for a Non-Financed Structure, [***] % and (ii) for Subject Funds with all other types of structures, a percentage equal to the lesser of (a) [***] % and the ratio (expressed as a percentage) of (b) (x) the maximum amount of debt that can be fully supported by Net Cash Flows distributable to the Managing Member of such Subject Fund, calculated using the Downside Assumptions and assuming that interest accrues at the Default Rate and (y) the Discounted Solar Asset Balance of such Subject Fund.

bb. Clause (ii) of Appendix 1 ( Advance Rate ) to the Loan Agreement shall be amended by deleting the definition of “ CB ” or “ Cash Sweep Fund Baseline ” in its entirety.

cc. Clause (ii) of Appendix 1 ( Advance Rate ) to the Loan Agreement shall be amended by deleting the definition of “ ITC Downside Case ” in its entirety and replacing it with the following:

Downside Assumptions ” means, with respect to a given Subject Fund, the stress assumptions set forth in the following table:

Characteristic

Downside Assumptions

Availability

[***]%

Degradation

[***]% per annum

Host Customer Default

[***]% per annum

O&M and Administrative Costs

Year 1:  $27.5/k/Wdc/year

With escalation of 2% per annum thereafter

Fair Market Value Haircut

[***]% reduction in the fair market value in the first month that a Subject Fund is included in the Available Borrowing Base. Proceeds under a Tax Loss Policy is received in year 3

Other Unpaid Indemnities that may be due

[***]% of Investor Commitment in the first month that a Subject Fund is included in the Available Borrowing Base

dd. Section II to Appendix 2 ( Borrowing Base Certificate Calculations ) shall be amended by deleting the following definitions in their entirety and replacing them with the following:

Aggregate Advance Model ” means the model that includes each of the Subject Funds in the form of Exhibit H-1 (which Exhibit H-1 may be updated from time to time with the addition of new Subject Funds or Systems pursuant to Section 2.10 or 3.3(a) ), forecasting the Net Cash Flows to each Managing Member under each Subject Fund (including in the case of a Partnership Flip Structure, before and after the expected “Flip Date,” and in the case of an Inverted Lease Structure and a Partnership Lease Pass

 

 

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Through Structure, before and after the expiration of the master lease and to the applicable wholly-owned subsidiary of the Borrower under each Other Non-Financed Structure), in each case: (i) calculated in accordance with and adjusted for the Assumptions, (ii) adjusted to exclude Excluded Revenues and as necessary to calculate, as applicable, the Investor’s preferred return, the capital contributions made by each Member of a Subject Fund, and the effect of host customer prepayments, customer terminations, Defaulted Systems and Terminated Systems, (iii) accounting for the applicable system information in the System Consolidator, (iv) adjusted to account for the anticipated impact on Net Cash Flow in respect of Borrower’s interest in any Subject Fund assuming that any Investor Withdrawal Option or Purchase Option, if applicable, in respect of such Subject Fund is exercised in accordance with the applicable Project Documents for such Subject Fund, as such impact is determined by the Administrative Agent in consultation with the Borrower and is set forth on a Schedule to the Aggregate Advance Model, and (v) with respect to each Subject Fund financed pursuant to the Loan Agreement after the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and Majority Group Agents as determined in consultation with the Lenders and the Borrower. In addition, the Aggregate Advance Model will be updated as of the date such model is delivered to reflect any modifications required due to changes in System Consolidator or Revised Net Cash Flow, including any adjustments as a result of a Tax Law Change . The System Consolidator shall identify Systems that have become Defaulted Systems and the Aggregate Advance Model shall identify Subject Funds that have become Watched Funds.  Any System with a Host Customer that has no FICO score or a FICO score less than [***] at the time such Host Customer signed the applicable power purchase agreement or lease agreement will be excluded from, or assigned a value of zero in, the Aggregate Advance Model.

Available Borrowing Base ” means the sum of the Subject Fund Borrowing Bases for all Subject Funds less the sum (without duplication of any amounts) of the Aggregate Sub-Limit 1 Balance, the Aggregate Sub-Limit 2 Balance, the Aggregate Sub-Limit 3 Balance, the Aggregate Sub-Limit 4 Balance, the Aggregate Sub-Limit 5 Balance, the Aggregate Sub-Limit 6 Balance, the Aggregate Sub-Limit 7 Balance, the Aggregate Sub-Limit 8 Balance, the Aggregate Sub-Limit 9 Balance, and the Aggregate Sub-Limit 10 Balance; provided , however , if as of the date of a Borrowing Base Certificate, the aggregate Subject Fund Borrowing Bases of all full Cash Sweep Funds exceed ten percent (10%) of the Available Borrowing Base, then the Subject Fund Borrowing Base of each full Cash Sweep Fund shall be deemed to be reduced on a pro rata basis (and the Available Borrowing Base shall be deemed to be reduced accordingly) in a sufficient amount so that the aggregate Subject Fund Borrowing Bases of all full Cash Sweep Funds no longer exceed ten percent (10%) of the Available Borrowing Base; provided, further , that so long as the [***] Subject Fund is a Subject Fund, the aggregate Subject Fund Borrowing Bases of all full Cash Sweep Funds shall be zero percent (0%) of the Available Borrowing Base, except as otherwise agreed by the Majority Group Agents at the time of the addition of a full Cash Sweep Fund pursuant to Section 2.10(a).

“Carrying Cost ” means, the sum of (i) the weighted average rate under all Interest Rate Hedge Agreements, Interest Rate Cap Agreements, and, with respect to any portion of the Loans for which there is no Interest Rate Hedge Agreement nor any Interest Rate Cap Agreement, the rate applicable to such portion, (ii) the Applicable Margin and (iii) all other relevant transaction fees, converted where necessary from a fixed amount to a relevant margin basis.

 

 

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Defaulted System ” means any System that (i) has not been in service for 180 days or more (subject to force majeure exceptions) and is not a Terminated System, (ii) where (a) the related Host Customer is more than 120 days past due on any portion of a contractual payment due under the related Customer Agreement and (b) the related Customer Agreement has not been brought current or the related PV System has not been removed and re-deployed and/or the related Customer Agreement reassigned (or a replacement Customer Agreement executed) within 240 days after the end of such 120-day period, (iii) with respect to which a Host Customer has failed to make a buy-out payment that is due and payable under a Customer Agreement or (iv) in respect of which the Host Customer has, under any Customer Agreement to which such Host Customer is a party, suspended performance pursuant to [***] for a period of 60 days or more.  For the avoidance of doubt, any past due amounts owed by an original Host Customer after reassignment to, or execution of, a replacement Customer Agreement with a new Host Customer shall not cause a System to be deemed to be a Defaulted System.

Investor Guarantor ” means, with respect to any Subject Fund, the guarantor under any Guarantee issued by SolarCity or Tesla, as the case may be, or any of its Affiliates for the benefit of the Investor in connection with such Subject Fund.

 

 

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Sub-Limit 1 Assets ”, “ Sub-Limit 2 Assets ”, “ Sub-Limit 3 Assets ”, “ Sub-Limit 4 Assets ”, “ Sub-Limit 5 Assets ”, “ Sub-Limit 6 Assets ”, “ Sub-Limit 7 Assets ”, “ Sub-Limit 8 Assets ”, “ Sub-Limit 9 Assets ”, “ Sub-Limit 1 Balance ”, “ Aggregate Sub-Limit 1 Balance ”, “ Sub-Limit 2 Balance ”, Aggregate Sub-Limit 2 Balance ”, “ Aggregate Sub-Limit 3 Balance ”, “ Sub-Limit 4 Balance ”, “ Aggregate Sub-Limit 4 Balance ”, “ Sub-Limit 5 Balance ”, “ Aggregate Sub-Limit 5 Balance ”, “ Aggregate Sub-Limit 6 Balance ”, “ Aggregate Sub-Limit 7 Balance ”, “ Aggregate Sub-Limit 8 Balance ”, “ Aggregate Sub-Limit 9 Balance ”, and “ Aggregate Sub-Limit 10 Balance ” have the meanings set forth below.

Sub-Limits

Sub-Limit 1 Assets

Any System for which the related Host Customer had a FICO score of less than [***] at the time of origination shall be deemed a “ Sub-Limit 1 Asset ”.

Sub-Limit 1 Balance

For any Subject Fund, (i) the greater of (a) 0 and (b) the amount by which the DSAB of all Sub-Limit 1 Assets exceeds 25% of the DSAB of all Eligible Systems, multiplied by (ii) 100%.

Aggregate Sub-Limit 1 Balance

For all Funded Systems, (i) the greater of (a) 0 and (b) the amount by which the Advance Rate adjusted DSAB of all Sub-Limit 1 Assets exceeds 15% of the sum of the Subject Fund Borrowing Bases, multiplied by (ii) 100%.

Sub-Limit 2 Assets

Any System for which the related Host Customer had a FICO score less than [***] at the time of origination shall be deemed a “ Sub-Limit 2 Asset ”.

Sub-Limit 2 Balance

For any Subject Fund, (i) the greater of (a) 0 and (b) the amount by which the DSAB of all Sub-Limit 2 Assets (after giving effect to the Sub-Limit 1 Balance) exceeds 35% of the DSAB of all Eligible Systems, multiplied by (ii) 30%.

Aggregate Sub-Limit 2 Balance

For all Funded Systems, (i) the greater of (a) 0 and (b) the amount by which the Advance Rate adjusted DSAB of all Sub-Limit 2 Assets (after giving effect to the Aggregate Sub-Limit 1 Balance) exceeds 30% of the sum of the Subject Fund Borrowing Bases, multiplied by (ii) 100%.

Sub-Limit 3 Assets

Inspected Systems.

Aggregate Sub-Limit 3 Balance

For all Funded Systems, the sum of (A), which equals (i) the greater of (a) 0 and (b) the amount by which the Advance Rate adjusted DSAB of all Sub-Limit 3 Assets exceeds 40% but is less than 50% of the sum of the Subject Fund Borrowing Bases, multiplied by (ii) 50%, and (B), which equals (iii) the greater of (a) 0 and (b) the amount by which the Advance Rate adjusted DSAB of all Sub-Limit 3 Assets exceeds 50% of the sum of the Subject Fund Borrowing Bases, multiplied by (iv) 100%.

 

 

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Sub-Limits

Sub-Limit 4 Assets

Commercial Systems contracted with Non-Investment Grade Commercial Host Customers shall be “ Sub-Limit 4 Assets ”.

Sub-Limit 4 Balance

For any Subject Fund, the amount by which the DSAB from Sub-Limit 4 Assets exceeds 5% of the DSAB from Eligible Systems owned by such Subject Fund.

Aggregate Sub-Limit 4 Balance

For all Funded Systems, the amount by which the Advance Rate adjusted DSAB from Sub-Limit 4 Assets exceeds 25% of the Advance Rate adjusted DSAB from all Eligible Systems which are Commercial Systems.

Sub-Limit 5 Assets

Commercial Systems contracted with a Shadow Rated Commercial Host Customer shall be “ Sub-Limit 5 Assets ”.

Sub-Limit 5 Balance

For any Subject Fund, the amount by which the DSAB from Sub-Limit 5 Assets exceeds 20% of the DSAB from Eligible Systems owned by such Subject Fund.

Aggregate Sub-Limit 5 Balance

For all Funded Systems, the amount by which the Advance Rate adjusted DSAB from Sub-Limit 5 Assets exceeds 50% of the Advance Rate adjusted DSAB from all Eligible Systems which are Commercial Systems.

Sub-Limit 6 Assets

Systems the solar photovoltaic panels and inverters with respect to which were manufactured by Prohibited Manufacturers , shall be “ Sub-Limit 6 Assets ”.

Aggregate Sub-Limit 6 Balance

For all Funded Systems, the amount by which the Advance Rate adjusted DSAB from Sub-Limit 6 Assets exceeds 5% of the DSAB from all Eligible Systems, provided that Administrative Agent will review in its discretion and subject to the approval of the Majority Group Agents increases to such Sub-Limit 6 Balance.

Sub-Limit 7 Assets

Systems that include any battery storage equipment.

Aggregate Sub-Limit 7 Balance

For all Funded Systems, the amount by which the Advance Rate adjusted DSAB from Sub-Limit 7 Assets exceeds 10% of the Advance Rate adjusted DSAB from all Eligible Systems.

Sub-Limit 8 Assets

Inspected Systems that have failed to reach PTO status within 90 days after reaching Inspected Status.

Aggregate Sub-Limit 8 Balance

For all Funded Systems, the amount by which the Advance Rate adjusted DSAB from Sub-Limit 8 Assets (after giving effect to the Aggregate Sub-Limit 9 Balance) exceeds 20% of the Advance Rate adjusted DSAB from all Inspected Systems.

Sub-Limit 9 Assets

Inspected Systems that have failed to reach PTO status within 120 days after reaching Inspected Status.

 

 

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Sub-Limits

Aggregate Sub-Limit 9 Balance

For all Funded Systems, the amount by which the Advance Rate adjusted DSAB from Sub-Limit 9 Assets exceeds 10% of the Advance Rate adjusted DSAB from all Inspected Systems.

Sub-Limit 10 Assets

Any commercial Funded System for which the associated Customer Agreement has [***] or [***].

Aggregate Sub-Limit 10 Balance

For all Funded Systems, the amount by which the Advance Rate adjusted DSAB from Sub-Limit 10 Assets exceeds 10% of the Advance Rate adjusted DSAB from all Funded Systems.

 

ee. Section 2.g . to Appendix 3 ( Eligibility Representations ) of the Loan Agreement shall be amended by deleting it in its entirety and replacing it with the following:

“g. Absolute and Unconditional Obligation : The related Customer Agreement is by its terms an absolute and unconditional obligation of the Host Customer to (i) pay for electricity generated and delivered, that will be generated and delivered, or, [***], (ii) to make scheduled lease payments, or (iii) to pay for commodities generated by or derived from or that will be generated or derived from the operation of the related PV System, in each case after the related PV System has received permission to operate from the local utility in writing or in such other form as is customarily given by such local utility (“ PTO ”), and such payment obligations under the related Customer Agreement do not provide for offset for any reason including non-payment or non-performance under any customer warranty agreement or performance guaranty provided to the applicable Host Customer; provided, however , that [***].

ff. Section 2.h . to Appendix 3 ( Eligibility Representations ) of the Loan Agreement shall be amended by deleting it in its entirety and replacing it with the following:

“h. Non-cancelable; Prepayable: The related Customer Agreement is non-cancelable by its terms as of the applicable Borrowing Date except, in the case of certain commercial or governmental Customer Agreements that are cancelable subject to payment by the related Host Customer of a termination value payment; and, other than with respect to Customer Agreements that have been fully prepaid or partially prepaid prior to the Borrowing Date, the related Customer Agreement is prepayable by its terms only in connection with a Host Customer selling their home to a transferee that is not approved in accordance with the terms of such Customer Agreement in an amount equal to an amount determined by discounting all projected payments that would have become payable thereunder by the Host Customer at a pre-determined discount rate of 5% .”

gg. Section 23.a . to Appendix 3 ( Eligibility Representations ) of the Loan Agreement shall be amended by deleting it in its entirety and replacing it with the following:

“All applications, forms and other filings required to be submitted in connection with the procurement of PBIs have been properly made, or will be in the process of being made, in all material respects under applicable law, rules and regulations and the related PBI obligor is in the process of approving or has provided a written reservation approval

 

 

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(which may be in the form of electronic mail from the related PBI obligor) for the payment of PBI payments.”

hh. Appendix 6 ( System Information Included in System Consolidator ) to the Loan Agreement is hereby amended by inserting the following new clause (n) and shifting the remaining clauses by one letter:

“(n) Sub-Limit 10 Flag, Binary indicator of “1” if Customer Agreement has [***] or [***];”

ii. Appendix 7 ( Tax Equity Representations and Other Representations ) to the Loan Agreement is hereby amended by deleting each instance of the term “SolarCity in favor of an Investor” set forth therein and replacing such term with “SolarCity or Tesla, in favor of an Investor”.

jj. The Section headed “ Inverters ” in Appendix 8 ( Approved Manufacturers ) shall be amended by deleting it in its entirety and replacing it with the following:

Inverters

[***]

kk. Clause 10 of Part I to Appendix 10 ( Conventional Tax Equity Structure Characteristics ) shall be amended by deleting it in its entirety and replacing it with the following:

“10. SolarCity Member’s obligation to indemnify the Investor Member, if any, is limited to customary indemnities for breach of the LLCA or bad acts, standard tax indemnities (but not structure or tax ownership) and [***]. [***].”

ll. Clauses 9 and 12 of Part II to Appendix 10 ( Conventional Tax Equity Structure Characteristics ) shall be amended by deleting it in its entirety and replacing it with the following:

“9. Subject Fund Class A Member’s obligation to indemnify the Subject Fund Class B Member or Investor, if any, is limited to customary indemnities for breach of the Subject Fund LLCA or bad acts, standard tax indemnities (but not structure or tax ownership) and [***]. [***].

12. The Subject Fund Manager may not be removed in its capacity as managing member of the Subject Fund other than as a result of (i) any material uncured breach of the Subject Fund LLCA or any other transaction documents relating to the Subject Fund, (ii) violation of any applicable Law, (iii) fraud, gross negligence, intentional misconduct, intentional malfeasance, acting outside the scope of authority, failure to exercise reasonable care, misappropriation or mishandling of funds or breach of fiduciary duties, (iv) bankruptcy or insolvency of the Manager, SolarCity, Investor Guarantor or the Subject Fund, (v) removal of the Master Tenant Manager by the Investor pursuant to the Master Tenant operating agreement, (vi) failure of the Subject Fund to qualify as a limited liability company, (vii) termination of the Subject Fund for federal income tax purposes or (viii) the Subject Fund being treated as an association, taxable as a corporation for federal income tax purposes.”

 

 

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mm. Clause 2 of Part III to Appendix 10 ( Conventional Tax Equity Structure Characteristics ) shall be amended by deleting it in its entirety and replacing it with the following:

“2. The Subject Fund’s obligation to indemnify the Lessee, if any, will be limited to customary indemnities for breach of the Master Lease or bad acts, standard tax indemnities (but not structure, including that the Master Lease is a “true lease”) and [***]. [***].”

Section 4. Amendments to the CADA.   Subject to the prior satisfaction of the conditions precedent described in Section 6 hereof, the CADA will be amended as follows (the “ CADA Amendments ”):

a. Section 1.1 of the CADA shall be amended by adding the following definition in alphabetical order:

Tax Credit ” means, with respect to a System, the investment tax credit under Section 48(a)(3)(A)(i) of the Code or any successor provision  of the Internal Revenue Code of 1986, as amended, for such System.

Tax Law Change ” has the meaning set forth in the Loan Agreement.

b. Section 1.1 of the CADA shall be amended by deleting the following definitions in their entirety and replacing them with the following:

Additional Supplemental Required Deposit ” means [***].

Inverter Required Deposit ” means [***].

Tax Loss Required Deposit ” means [***].

c. Section 4.3(e)(2) of the CADA shall be amended by deleting it in its entirety and replacing it with the following:

“(2) Second , to the Administrative Agent to be distributed on a pro-rata basis to (i) each Lender on a pro-rata basis (based on the amount of interest due) in an amount equal to any interest due and payable to the Lenders under the Financing Documents and (ii) each Interest Rate Hedge Counterparty on a pro-rata basis, as applicable, in an amount equal to pay any amounts (other than termination payments) due and payable to the Interest Rate Hedge Counterparties under the Interest Rate Hedge Agreements;”

d. Section 4.3(e)(3) of the CADA shall be amended by deleting it in its entirety and replacing it with the following:

“(3) Third , to the Administrative Agent toward all outstanding principal of the Loans and all termination payments then due and payable to the Interest Rate Hedge Counterparties under the Interest Rate Hedge Agreements;”

Section 5. Acknowledgements and Consents . Subject to prior satisfaction of the conditions precedent described in Section 6 hereof:

a. the Required Group Agents consent to the Limited Guarantor Assignment, the Loan Agreement Amendments, notwithstanding anything to the contrary in Section 2.2(d) and Section 2.2(e) of

 

 

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the Loan Agreement, the Commitment Reduction, and the CADA Amendments, with acknowledgement by each of the Administrative Agent, the Collateral Agent and, with respect to the CADA Amendments, the Depositary.

b. the Required Group Agents consent to (A) the Second Amendment Agreement, to be executed by and among, SolarCity Corporation, [***], [***], and [***] and (B) [***], in each case which is substantially in the form of Addendum C attached hereto.

Section 6. Conditions Precedent.   This Action shall be effective upon the satisfaction of the following conditions precedent:

a. The Administrative Agent shall have received counterparts of this Action, executed and delivered by each of the other parties hereto.

b. The Administrative Agent shall have received for its own account, and for the   account of each Committed Lender entitled thereto, a fee equal to the product of (i) [***]% (an extension fee of [***]% and a new fund approval fee of [***]%) and (ii) each Committed Lender’s Commitment Amount as set forth in Annex 3 to the Loan Agreement as set forth in further detail below.

Lender

Amount

Bank of America, N.A.

$ [***]

Credit Suisse AG, New York Branch

$ [***]

ING Capital LLC

$ [***]

Deutsche Bank AG, New York Branch

$ [***]

KeyBank National Association

$ [***]

National Bank of Arizona

$ [***]

CIT Bank, N.A.

$ [***]

Silicon Valley Bank

$ [***]

Total

$ [***]

 

c. Each of the Administrative Agent and each Group Agent shall have received an opinion, dated no earlier than the Effective Date, of Wilson Sonsini Goodrich & Rosati, counsel to the Loan Parties, the Borrower Subsidiary Parties, SolarCity and Tesla, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents.

d. All representations and warranties of the Borrower contained in Article 4 of the Loan Agreement are true and correct in all material respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which are true and correct in all respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).

e. No Default or Event of Default has occurred and is continuing or will result from the execution of this Action.

Section 7. Reference to and Effect on Financing Documents. Each of the Loan Agreement and the other Financing Documents is and shall remain unchanged and in full force and effect, and, except as expressly set forth herein, nothing contained in this Action shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or

 

 

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any of the other Secured Parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in each of the Loan Agreement and any other Financing Document . This Action shall also constitute a “Financing Document” for all purposes of the Loan Agreement and the other Financing Documents.

Section 8. Incorporation by Reference .  Sections 10.5 ( Entire Agreement ), 10.6 ( Governing Law ), 10.7 ( Severability ), 10.8 ( Headings ), 10.11 ( Waiver of Jury Trial ), 10.12 ( Consent to Jurisdiction ), 10.14 ( Successors and Assigns ) and 10.16 ( Binding Effect; Counterparts ) of the Loan Agreement are hereby incorporated by reference herein, mutatis mutandis.

Section 9. Expenses. The Borrower agrees to reimburse the Administrative Agent in accordance with Section 10.4(b)(x) of the Loan Agreement for its reasonable and documented out-of-pocket expenses in connection with this Action, including reasonable and documented fees and out-of-pocket expenses of legal counsel.

Section 10. Construction. The rules of interpretation specified in Section 1.2 of the Loan Agreement also apply to this Action, mutatis mutandis.

[ Signature Pages Follow ]

 

 

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Action to be duly executed by their respective authorized officers as of the day and year first written above.

 

MEGALODON SOLAR, LLC ,

as Borrower

 

By:

/s/ Radford Small

Name:

Radford Small

Title:

Treasurer

 

 

SOLARCITY CORPORATION

 

By:

/s/ Radford Small

Name:

Radford Small

Title:

Treasurer

 

 

TESLA, INC.

 

By:

/s/ Deepak Ahuja

Name:

Deepak Ahuja

Title:

Chief Financial Officer

 

 

BANK OF AMERICA, N.A. ,

as a Group Agent

 

By:

/s/ Spencer Hunsberger

Name:

Spencer Hunsberger

Title:

Director

 

 

CIT BANK, N.A. ,

as a Group Agent

 

By:

/s/ Marc Theisinger

Name:

Marc Theisinger

Title:

Managing Director

 

[ Signature Page to Required Group Agent Action No. 36 ]

 

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CREDIT SUISSE AG, NEW YORK BRANCH ,

as a Group Agent

 

By:

/s/ Patrick J. Hart

Name:

Patrick J. Hart

Title:

Vice President

 

 

By:

/s/ Patrick Duggan

Name:

Patrick Duggan

Title:

Associate

 

DEUTSCHE BANK AG, NEW YORK BRANCH,

as a Group Agent

 

By:

/s/ Kyle Hatzes

Name:

Kyle Hatzes

Title:

Vice President

 

 

By:

/s/ Gregory Leveto

Name:

Gregory Leveto

Title:

Managing Director

 

 


ING CAPITAL, LLC ,

as a Group Agent

 

By:

/s/ Thomas Cantello

Name:

Thomas Cantello

Title:

Managing Director

 

 

By:

/s/ Mark Parrish

Name:

Mark Parrish

Title:

Vice President

 

 

KEYBANK NATIONAL ASSOCIATION ,

as a Group Agent

 

By:

/s/ Benjamin C. Cooper

Name:

Benjamin C. Cooper

Title:

Vice President

 

 

[ Signature Page to Required Group Agent Action No. 36 ]

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

National Bank of Arizona ,

as a Group Agent

 

By:

/s/ Craig Robb

Name:

Craig Robb

Title:

Executive Vice President

 

 

SILICON VALLEY BANK ,

as a Group Agent

 

By:

/s/ Sayoji Goli

Name:

Sayoji Goli

Title:

Vice President

 

BANK OF AMERICA, N.A.

as Administrative Agent and Collateral Agent

 

By:

/s/ Darleen R. DiGrazia

Name:

Darleen R. DiGrazia

Title:

Vice President

 

BANK OF AMERICA, N.A.

as Depositary

 

By:

/s/ Wayne M. Evans

Name:

Wayne M. Evans

Title:

Vice President

 

 

 

[ Signature Page to Required Group Agent Action No. 36 ]

 

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Addendum A – Exhibits

EXHIBIT A
to Loan Agreement

FORM OF NOTE

[See Attached]

 

 

 

Exhibit A

 

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NOTE

FOR VALUE RECEIVED, the undersigned (the “ Borrower ”), hereby promises to pay to BANK OF AMERICA, N.A. or its registered assigns (the “ Group Agent ”), on behalf of the Lenders in its related Group, in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Group to the Borrower under that certain Loan Agreement, dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among the Borrower, Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, the Lenders from time to time party thereto, the Group Agents from time to time party thereto, Bank of America, N.A., as collateral agent for the Secured Parties (“ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, and Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers.

The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.

 

 

 

Exhibit A

 

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THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

MEGALODON SOLAR, LLC ,

a Delaware limited liability company

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit A

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

LOANS AND PAYMENTS with respect thereto

Date

 

Type of
Loan Made

 

Amount of
Loan Made

 

End of
Interest
Period

 

Amount of
Principal or
Interest Paid
This Date

 

Outstanding
Principal
Balance
This Date

 

Notation Made By

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit A

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT B-1
to Loan Agreement


FORM OF BORROWING NOTICE

[See Attached]

 

 

Exhibit B-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

BORROWING NOTICE

Date:____________ 1
Requested Borrowing Date:_____________

Bank of America, N.A.
Administrative Agent
901 Main Street
Mail Code:  TX1-492-14-12
Dallas, TX  75202-3714

Attention: [***]
Telephone:  [***]
Telecopy:  [***]

[***]

Bank of America, N.A.
900 West Trade Street
Mail Code:  NC1-026-06-03
Charlotte, NC 28255-0001
Attention:  [***]
Telephone:  [***]
Telecopy:  [***]

[***]

 

Re: Project Kronor Loan Facility

This Borrowing Notice is delivered to you pursuant to Section 2.1(a)(iii) of the Loan Agreement dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor (the “ Limited Guarantor ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers, pursuant to which the Lenders have agreed to make Loans to the Borrower. Each capitalized term used and not otherwise defined herein shall have the meaning assigned thereto in Section 1.1 of the Loan Agreement.

This Borrowing Notice constitutes a request for a Loan as set forth below:

1. The aggregate principal amount of the Loan requested is $____________ 2 (the “ Requested Amount ”).

 

1 Notice must be received by Administrative Agent at least three (3) Business Days before the date of the Requested Borrowing Date.

2 The Requested Amount exceeds $2,500,000 or such lesser amount as is remaining under the Commitment.

Exhibit B-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

2. The Borrowing Date of the requested Loan is ____________ (the “ Requested Borrowing Date ”), which is a Business Day.

3. The Applicable Interest Rate of the requested Loan is [Base Rate] [Daily LIBO Rate] [LIBO Rate].

4. Schedule 1 hereto is a Borrowing Base Certificate, dated as of the date hereof, delivered pursuant to Section 2.1(a)(iv)(A) and Section 3.2(c) of the Loan Agreement.

5. [Reserved] .

6. Schedule 2 hereto contains a copy of each Interest Rate Protection Agreement to be entered into by the Borrower on the Requested Borrowing Date in accordance with Section 2.13 of the Loan Agreement, and such Interest Rate Protection Agreements constitute all Interest Rate Protection Agreements required under Section 2.13 in respect of the Borrowing requested hereunder.

7. Proceeds of the Loan should be directed [in accordance with the flow of funds memorandum delivered on the date hereof to the Administrative Agent] [to the following account[s]:  ________].

The undersigned further confirms and certifies to Administrative Agent and each Lender that, as of the date hereof:

(a) All representations and warranties of the Loan Parties under the Financing Documents are true and correct in all material respects as of such Borrowing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), other than those representations and warranties which are modified by materiality by their own terms, which shall be true and correct in all respects as of such Borrowing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).

(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.

(c) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions, including in respect of Borrower’s Equity Interest in each Managing Member of any Subject Fund.

(d) All amounts required to be paid to or deposited with any Secured Party under any Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 or Section 3.2 of the Loan Agreement have been paid in full (or shall be paid concurrently with the occurrence of Borrowing requested hereunder). 3

 

3 Agents and Lenders may consent to other arrangements for paying such amounts.

 

Exhibit B-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

(e) After giving effect to the Borrowing hereby and any Watched Fund identified in the Borrowing Base Certificate attached hereto as Schedule 2 , the Borrower is in compliance with the Borrowing Base Requirements.

(f) No Material Adverse Effect has occurred or is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.

(g) No Bankruptcy Event has occurred with respect to any Borrower Subsidiary Party, SolarCity or the Limited Guarantor [except, with respect to any Borrower Subsidiary Party, as noted in (k) below].

(h) The conditions precedent set forth in Sections 3.3 and 3.4 , respectively, of the Loan Agreement with respect to any new Systems or any new Subject Funds added to the Available Borrowing Base for the purpose of making the Borrowing requested hereby shall have been satisfied in all respects as of the Requested Borrowing Date.

(i) The Interest Reserve Account has been funded in an amount at least equal to the Interest Reserve Required Balance.

(j) Each Current System is an Eligible System, except as noted in (k) below.

(k) No Current System is excluded from the definition of Net Cash Flow, no Subject Fund is a Watched Fund, and no Funded System has become excluded from the definition of Net Cash Flow other than the following: [•]. 4

[ Remainder of Page Intentionally left blank ]

 

4 Insert any Watched Systems and applicable Eligibility Representations not satisfied as applicable.

 

Exhibit B-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF, the undersigned has caused this Borrowing Notice to be executed as of the date first written above.

 

MEGALODON SOLAR, LLC ,

a Delaware limited liability company, as Borrower

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit B-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Schedule 1

Borrowing Base Certificate

[ See Attached. ]

 

 

 

Exhibit B-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Schedule 2

Interest Rate Protection Agreements

[ See Attached. ]

 

 

 

Exhibit B-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT B-2
to Loan Agreement


FORM OF CONVERSION AND CONTINUATION NOTICE

[See Attached]

 

 

Exhibit B-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

CONVERSION AND CONTINUATION NOTICE

Date: ___________

Bank of America, N.A.
Administrative Agent
901 Main Street
Mail Code:  TX1-492-14-12
Attention:  [***]
Dallas, TX  75202-3714
Telephone:  [***]
Telecopy:  [***]

[***]

 

Bank of America, N.A.
900 West Trade Street
Mail Code:  NC1-026-06-03
Charlotte, NC  28255-0001
Attention:  [***]
Telephone:  [***]
Telecopy:  [***]

[***]

 

Re: Project Kronor Loan Facility

This Conversion and Continuation Notice is delivered to you pursuant to Section 2.1(a)(vi) of the Loan Agreement dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers, pursuant to which the Lenders have agreed to make Loans to the Borrower.  Each capitalized term used and not otherwise defined herein shall have the meaning assigned thereto in Section 1.1 of the Loan Agreement .

This Conversion and Continuation Notice constitutes a request to [convert a Base Rate Loan to a Daily LIBO Rate Loan] [convert a Base Rate Loan to a LIBO Rate Loan] [convert a LIBO Rate Loan to a Daily LIBO Rate Loan] [convert a LIBO Rate Loan to a Base Rate Loan] [convert a Daily LIBO Rate Loan to a LIBO Rate Loan] [convert a Daily LIBO Rate Loan to a Base Rate Loan] as set forth below (the “ Conversion ”) :

 

1. The aggregate principal amount of the Loan is originally $__________ .

2. The Borrowing Date [s] of the Loan[s] to be [continued][converted] [was] [were] __________.

3. The date of the requested Conversion is __________ .

 

 

Exhibit B-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF, the undersigned has caused this Conversion Notice to be executed as of the date first written above.

 

MEGALODON SOLAR, LLC ,

a Delaware limited liability company, as Borrower

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit B-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT C
to Loan Agreement


FORM OF ASSIGNMENT AND ACCEPTANCE

[See Attached]

 

 

Exhibit C

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

ASSIGNMENT AND ACCEPTANCE

This Assignment and Acceptance (this “ Assignment and Acceptance ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 6 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 7 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 8 3 hereunder are several and not joint.] 9 4   Capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement identified below (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “ Standard Terms and Conditions ”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Loan Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Loan Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and obligations under the respective facilities identified below, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by [the][any] Assignor.

 

1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.

2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.

3 Select as appropriate.

4 Include bracketed language if there are either multiple Assignors or multiple Assignees.

Exhibit C

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

1.

Assignor[s]:

 

 

 

 

 

 

 

 

 

 

[Assignor [is] [is not] a Defaulting Lender]

 

 

 

 

 

2.

Assignee[s] :

 

 

 

 

 

 

 

 

 

 

[for each Assignee, indicate [Affiliate][Related Fund] of [ identify Lender ]]

 

 

 

 

 

3.

Borrower(s) :

 

 

 

 

 

 

 

 

4.

Administrative Agent :  Bank of America, N.A., as the administrative agent under the Loan Agreement

 

 

 

 

 

5.

Loan Agreement :  Loan Agreement, dated as of May 4, 2015, among Megalodon Solar, LLC, a Delaware limited liability company, Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, each lender from time to time party thereto, each group agent from time to time party thereto, Bank of America, N.A., as collateral agent for the Secured Parties, as the administrative agent for the Lenders, Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers, pursuant to which the Lenders have agreed to make Loans to the Borrower

 

 

 

 

 

6.

Assigned Interest[s] :

 

 

 

 

Assignor[s] 10 5

Assignee[s] 11 6

Facility
Assigned 12 7

Aggregate Amount of Commitment/Loans
for all Lenders 13 8

Amount
of
Commitment/Loans
Assigned

Percentage
Assigned of
Commitment/
Loans 14 9

CUSIP
Number

 

 

________

$___________

$__________

_________%

 

 

 

________

$___________

$__________

__________%

 

 

 

________

$___________

$__________

_________%

 

 

[7.

Trade Date :

]

10

 

 

 

5 List each Assignor, as appropriate.

6 List each Assignee and, if available, its market entity identifier, as appropriate.

7 Fill in the appropriate terminology for the types of facilities under the Loan Agreement that are being assigned under this Assignment (e.g., “Term Loan Commitment”, etc.).

8 Amounts in this column and in the column immediately to the right to be adjusted to take into account any payments or prepayments made between the Trade Date and the Effective Date.

9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

10 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

 

Exhibit C

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Effective Date:  _______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Acceptance are hereby agreed to:

 

ASSIGNOR[S] 11

[NAME OF ASSIGNOR]

 

By:

 

Title:

 

 

 

[NAME OF ASSIGNOR]

 

By:

 

Title:

 

 

 

ASSIGNEE[S] 12

[NAME OF ASSIGNEE]

 

By:

 

Title:

 

 

 

[NAME OF ASSIGNEE]

 

 

By:

 

Title:

 

 

 

11 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).

12 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).

Exhibit C

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Consented to and Accepted :

 

BANK OF AMERICA, N.A. ,

as Administrative Agent

 

 

By:

 

Name:

 

Title:

 

 

 

 

 

Exhibit C

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE

1. Representations and Warranties . 1

1.1. Assignor .  [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim created by it, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Loan Agreement or any other Financing Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Financing Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Financing Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Financing Document.

1.2. Assignee .  [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Loan Agreement, (ii) it is an Eligible Assignee pursuant to the Loan Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Loan Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.3 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Loan Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Financing Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Financing Documents are required to be performed by it as a Lender.

 

18 1 Add Section 10.20(a) of the Loan Agreement if either or both parties to the Assignment is/are (a) Conduit Lender(s).

Exhibit C

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

2. Payments .  From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.

3. General Provisions .  This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.

 

 

Exhibit C

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT D
to Loan Agreement


FORM OF INCREMENTAL LOAN COMMITMENT INCREASE NOTICE

[See Attached]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

Exhibit D

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

INCREMENTAL LOAN COMMITMENT INCREASE NOTICE

[ Letterhead of Borrower ]

Bank of America, N.A.
Administrative Agent
901 Main Street
Mail Code:  TX1-492-14-12
Dallas, TX  75202-3714

Attention: [***]
Telephone:  [***]
Telecopy:  [***]

[***]

 

Bank of America, N.A.
900 West Trade Street
Mail Code:  NC1-026-06-03
Charlotte, NC 28255-0001
Attention:  [***]
Telephone:  [***]
Telecopy:  [***]

[***]

[DATE]

Re:

MEGALODON SOLAR, LLC

Incremental Loan Commitment Increase Notice

 

Ladies and Gentlemen:

The undersigned, Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), refers to the Loan Agreement, dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among the Borrower, Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers, pursuant to which the Lenders have agreed to make Loans to the Borrower.  Capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Loan Agreement.

Exhibit D

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

The Borrower hereby requests an Incremental Loan Commitment Increase under Section 2.9 of the Loan Agreement and in connection therewith sets forth below the information relating to such Incremental Loan Commitment Increase (the “ Proposed Incremental Loan Commitment Increase ”) as required by such Section 2.9 of the Loan Agreement:

(a) The Business Day of the Proposed Incremental Term Loan Commitment

Increase is ____________, 20__. 1

(b) The amount of the Proposed Incremental Term Loan Commitment

Increase is _______________ Dollars ($___________). 2

(c) The upfront fees the Borrower proposes to pay to participating Lenders in such Incremental Loan Commitment is _______________ Dollars ($___________).

(d) The Applicable Margin the Borrower proposes to apply with respect to the Incremental Loans being requested is ______%.

(e) The maturity date the Borrower proposes be applicable to the Incremental Loans being requested is _______________.

(f) No Default or Event of Default has occurred and is continuing.

(g) Immediately before and after giving effect to the Incremental Loan Commitment Increase, the Borrower is in pro forma compliance with the Borrowing Base Requirements.

(h) No Sweep Event or Subject Fund Sweep Event has occurred and remains ongoing.

(i) Since the delivery of the most recent financial statements of the Borrower delivered pursuant to Section 5.3 of the Loan Agreement, no Material Adverse Effect has occurred or is continuing.

[ The remainder of this page is intentionally blank. The next page is the signature page. ]

 

1 Such date must be prior to the expiry of the Availability Period.

2 Increases must be in increments of $5,000,000 and be equal to or exceed a minimum of $10,000,000 or such lesser amount equal to the remaining Incremental Loan Amount.

 

 

 

 

 

 

 

 

D-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF, the undersigned has executed this Incremental Loan Increase Notice as of the date first written above.

 

MEGALODON SOLAR, LLC ,

a Delaware limited liability company, as Borrower

 

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit D

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT E

to Loan Agreement

FORM OF INCREASING INCREMENTAL LENDER CONFIRMATION

[See Attached]

 

 

 

Exhibit E

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

INCREASING INCREMENTAL LENDER CONFIRMATION

Reference is made to the Loan Agreement, dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC,, as joint book runners and joint lead arrangers, pursuant to which the Lenders have agreed to make Loans to the Borrower. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Loan Agreement.

The undersigned Committed Lender hereby certifies as follows:

1. In accordance with Section 2.9(b) of the Loan Agreement, such Committed Lender has agreed to increase its Incremental Loan Commitment under the Loan Agreement as of [•], 201[•] (the “ Incremental Loan Increase Date ”). [Such Incremental Loan Commitment Increase is subject to the satisfaction (or waiver) of the conditions set forth in Section 2.9(e) of the Loan Agreement on or prior to the Incremental Loan Commitment Increase Date.] 1 After giving effect to such Incremental Loan Commitment Increase, the Commitments of such Committed Lender shall be in the amounts set forth on Annex 1 hereto.

[ The remainder of this page is intentionally blank. The next page is the signature page. ]

 

1 Include bracketed text to the extent increase is requested pursuant to Section 2.9 of the Loan Agreement.

 

 

 

Exhibit E

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF , the undersigned have caused this Increasing Incremental Lender Confirmation to be duly executed as of the date first above written.

 

[NAME OF INCREASING INCREMENTAL LENDER]

 

 

By:

 

Name:

 

Title:

 

Date:

 

 

For acceptance and recordation in the register:

BANK OF AMERICA, N.A.,

as Administrative Agent

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit E

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Annex I

to Increasing Incremental Lender Confirmation

 

Lender’s Undisbursed Commitment Pre-Commitment Increase

Lender’s Outstanding Loans Pre-Commitment Increase

Lender’s Undisbursed Commitment Post-Commitment Increase

Lender’s Outstanding Loans Post-Commitment Increase

$

$

$

$

 

 

 

Exhibit E

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT F-1

to Loan Agreement

FORM OF NEW COMMITTED LENDER ACCESSION AGREEMENT

[See Attached]

 

 

 

Exhibit F-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

NEW COMMITTED LENDER ACCESSION AGREEMENT

This ACCESSION AGREEMENT (this “ Accession Agreement ”), dated as of ____________, is by ________________ (the “ New Committed Lender ”).

RECITALS

WHEREAS, reference is made to the Loan Agreement, dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers, pursuant to which the Lenders have agreed to make Loans to the Borrower.; and

WHEREAS, the New Committed Lender has accepted an offer to provide an Incremental Loan Commitment to the Borrower in an aggregate principal amount not to exceed ____________ Dollars ($__________), subject to the terms of the Loan Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Definitions . All capitalized terms not otherwise defined herein  shall have the respective meanings set forth in the Loan Agreement.

SECTION 2. Assumption . As of the effective date set forth on the signature  page to this Accession Agreement (the “ Effective Date ”), subject to and in accordance with the Loan Agreement, the New Committed Lender irrevocably agrees to provide the Incremental Loan Commitment. The New Committed Lender shall have all of the rights and be subject to all of the obligations in its capacity as a Committed Lender under the Loan Agreement, each other Financing Document, and any other documents or instruments delivered pursuant thereto or in connection therewith and shall have all rights to all claims, suits, causes of action and any other right of a Lender against any Person, that arise from transactions, events or occurrences on or after the Effective Date, whether known or unknown, arising under or in connection with the Loan Agreement, each other Financing Document, and any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, statutory claims and all other claims at law or in equity.

Upon acceptance and recording of the assumption made pursuant to this Accession Agreement by the Administrative Agent, from and after the Effective Date, the Administrative Agent shall make all payments in respect of the Incremental Loan Commitment and any Incremental Loans made by the New Committed Lender (including all payments of principal, interest, fees and other amounts) to the New Committed Lender for amounts that have accrued from and including the Effective Date.

Exhibit F-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

SECTION 3. Representations, Warranties and Undertakings . The New Committed Lender: (i) represents and warrants that it has full power and authority, and has taken all action necessary, to execute and deliver this Accession Agreement and to consummate the transactions contemplated hereby and to become a Committed Lender under the Loan Agreement and the other Financing Documents, (ii) acknowledges and confirms that it has received a copy of the Loan Agreement, each other Financing Document and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Accession Agreement and to provide the Incremental Loan Commitment and any Loans made by the New Committed Lender, on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Secured Party, (iii) agrees that it will, independently and without reliance upon the Administrative Agent, the Borrower, or any other Secured Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Agreement or any other Financing Document, (iv) appoints and authorizes each Agent and the Depositary to take such action as agent on its behalf and to exercise such powers under the Loan Agreement or the other Financing Documents as are delegated to such Agent or the Depositary, as applicable, by the terms thereof, together with such powers as are reasonably incidental thereto, (v) will perform in accordance with their terms all of the obligations that by the terms of the Financing Documents are required to be performed by it as a Lender and (vi) appoints and authorizes [______] as its “ Group Agent ,” which appointment [______] hereby accepts. The New Committed Lender further confirms and agrees that in becoming a Committed Lender and in making Loans under the Loan Agreement, such actions have and will be made without recourse to, or representation or warranty, by any Secured Party.

The New Committed Lender further agrees to furnish to the Administrative Agent and, to the extent required by the Loan Agreement, the Borrower, no later than the Effective Date, an Administrative Questionnaire and any tax forms required under the Loan Agreement.

SECTION 4. Effectiveness . The effectiveness of the making of the Commitment hereunder is subject to (i) the due execution and delivery of this Accession Agreement by the New Committed Lender, (ii) consent, not to be unreasonably withheld, by the Administrative Agent and the Borrower to this Accession Agreement, (iii) the registration of such Incremental Loan Commitment by the Administrative Agent in the Register and (iv) the satisfaction (or waiver) of each of the conditions set forth in Section 2.9(e) of the Loan Agreement.

Simultaneously with the execution and delivery by the parties hereto of this Accession Agreement to the Administrative Agent for its recording in the Register, the New Committed Lender may request that Notes be executed and delivered to the New Committed Lender reflecting the amounts of the Commitment of the New Committed Lender.

Except as otherwise provided in the Loan Agreement, effective as of the Effective Date, the New Committed Lender shall be deemed automatically to have become a party to, and the New Committed Lender agrees that it will be bound by the terms and conditions set forth in, the Loan Agreement, and shall have all the rights and obligations of a “Committed Lender” under the Loan Agreement and the other Financing Documents for the Loans and/or Commitments held by it as if it were an original signatory thereto or an original Committed Lender thereunder.

SECTION 5. Governing Law . THIS ACCESSION AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

Exhibit F-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

SECTION 6. Counterparts . This Accession Agreement may be executed in  any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Accession Agreement by telecopy or portable document format (“pdf”) shall be effective as delivery of a manually executed counterpart of this Accession Agreement.

SECTION 7. Further Assurances . The New Committed Lender hereby agrees to execute and deliver such other instruments, and take such other action, as either the Borrower or the Administrative Agent may reasonably request in connection with the transactions contemplated by this Accession Agreement including the delivery of any notices to the Borrower or the Agents that may be required in connection herewith.

SECTION 8. Binding Effect; Amendment . This Accession Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, subject, however, to the provisions of the Loan Agreement. No provision of this Accession Agreement may be amended, waived or otherwise modified except by an instrument in writing signed by the New Committed Lender and the Administrative Agent.

SECTION 9. Administrative Agent Enforcement . The Administrative Agent shall be entitled to rely upon and enforce this Accession Agreement against the New Committed Lender in all respects.

[ The remainder of this page is intentionally blank. The next page is the signature page. ]

 

 

Exhibit F-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF , the undersigned have caused this Accession Agreement to be duly executed by a Responsible Officer as of the date first above written.

The effective date for this Accession Agreement is the date this Accession Agreement is acknowledged and accepted by the Administrative Agent and the Borrower ________________, 20_____ (the “ Effective Date ”).

 

[NEW COMMITTED LENDER]

 

 

By:

 

Name:

 

Title:

 

 

[NEW GROUP AGENT]

 

 

By:

 

Name:

 

Title:

 

 

 

BANK OF AMERICA, N.A. ,

as Administrative Agent

 

 

By:

 

Name:

 

Title:

 

 

MEGALODON SOLAR, LLC ,

a Delaware limited liability company, as Borrower

 

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit F-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT F-2

to Loan Agreement

FORM OF NEW CONDUIT LENDER ACCESSION AGREEMENT

[See Attached]

 

 

 

Exhibit F-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

NEW CONDUIT LENDER ACCESSION AGREEMENT

This ACCESSION AGREEMENT (this “ Accession Agreement ”), dated as of ____________, is by ________________ (the “ New Conduit Lender ”).

RECITALS

WHEREAS, reference is made to the Loan Agreement, dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers; and

WHEREAS, the ____________ (the “ Related New Committed Lender ”) has accepted an offer to provide an Incremental Loan Commitment to the Borrower in an aggregate principal amount not to exceed ____________ Dollars ($__________), subject to the terms of the Loan Agreement;

WHEREAS, New Conduit Lender and Related New Committed Lender desire for New Conduit Lender to act as Conduit Lender in the same Group as Related New Committed Lender.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Definitions . All capitalized terms not otherwise defined herein  shall have the respective meanings set forth in the Loan Agreement.

SECTION 2. Assumption . As of the effective date set forth on the signature  page to this Accession Agreement (the “ Effective Date ”), subject to and in accordance with the Loan Agreement, the New Conduit Lender irrevocably agrees to act as Conduit Lender in the Group of Related New Committed Lender. The New Conduit Lender shall have all of the rights and be subject to all of the obligations in its capacity as a Conduit Lender under the Loan Agreement, each other Financing Document, and any other documents or instruments delivered pursuant thereto or in connection therewith and shall have all rights to all claims, suits, causes of action and any other right of a Lender against any Person, that arise from transactions, events or occurrences on or after the Effective Date, whether known or unknown, arising under or in connection with the Loan Agreement, each other Financing Document, and any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, statutory claims and all other claims at law or in equity.

Upon acceptance and recording of the assumption made pursuant to this Accession Agreement by the Administrative Agent, from and after the Effective Date, the Administrative Agent shall make all payments in respect of the Incremental Loan Commitment and any Incremental Loans made by the New Conduit Lender (including all payments of principal, interest, fees and other amounts) to the New Conduit Lender for amounts that have accrued from and including the Effective Date.

Exhibit F-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

SECTION 3. Representations, Warranties and Undertakings . The New Conduit Lender: (i) represents and warrants that it has full power and authority, and has taken all action necessary, to execute and deliver this Accession Agreement and to consummate the transactions contemplated hereby and to become a Conduit Lender under the Loan Agreement and the other Financing Documents, (ii) acknowledges and confirms that it has received a copy of the Loan Agreement, each other Financing Document and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Accession Agreement and to provide any Loans made by the New Conduit Lender, on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Secured Party, (iii) agrees that it will, independently and without reliance upon the Administrative Agent, the Borrower, or any other Secured Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Agreement or any other Financing Document, (iv) appoints and authorizes each Agent and the Depositary to take such action as agent on its behalf and to exercise such powers under the Loan Agreement or the other Financing Documents as are delegated to such Agent or the Depositary, as applicable, by the terms thereof, together with such powers as are reasonably incidental thereto, (v) will perform in accordance with their terms all of the obligations that by the terms of the Financing Documents are required to be performed by it as a Lender and (vi) acknowledges and accepts the appointment of [______] as its Group Agent. The New Conduit Lender further confirms and agrees that in becoming a Conduit Lender and in making Loans under the Loan Agreement, such actions have and will be made without recourse to, or representation or warranty, by any Secured Party.

The New Conduit Lender further agrees to furnish to the Administrative Agent and, to the extent required by the Loan Agreement, the Borrower, no later than the Effective Date, an Administrative Questionnaire and any tax forms required under the Loan Agreement.

SECTION 4. Effectiveness . The effectiveness of the making of the Commitment hereunder is subject to (i) the due execution and delivery of this Accession Agreement by the New Conduit Lender, (ii) consent, not to be unreasonably withheld, by the Administrative Agent and the Borrower to this Accession Agreement, (iii) the registration of such Incremental Loan Commitment by the Administrative Agent in the Register, (iv) the satisfaction (or waiver) of each of the conditions set forth in Section 2.9(e) of the Loan Agreement and (v) on or prior to the date hereof, the due execution and delivery of an accession agreement, in the form required under Section 2.9(c) of the Loan Agreement, by the Related New Committed Lender,.

Simultaneously with the execution and delivery by the parties hereto of this Accession Agreement to the Administrative Agent for its recording in the Register, the New Conduit Lender may request that Notes be executed and delivered to the New Conduit Lender reflecting the amounts of the Commitment of the Related New Committed Lender.

Except as otherwise provided in the Loan Agreement, effective as of the Effective Date, the New Conduit Lender shall be deemed automatically to have become a party to, and the New Conduit Lender agrees that it will be bound by the terms and conditions set forth in, the Loan Agreement, and shall have all the rights and obligations of a “Conduit Lender” under the Loan Agreement and the other Financing Documents for the Loans held by it as if it were an original signatory thereto or an original Conduit Lender thereunder.

SECTION 5. Governing Law . THIS ACCESSION AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

Exhibit F-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

SECTION 6. Counterparts . This Accession Agreement may be executed in  any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Accession Agreement by telecopy or portable document format (“pdf”) shall be effective as delivery of a manually executed counterpart of this Accession Agreement.

SECTION 7. Further Assurances . The New Conduit Lender hereby agrees to execute and deliver such other instruments, and take such other action, as either the Borrower or the Administrative Agent may reasonably request in connection with the transactions contemplated by this Accession Agreement including the delivery of any notices to the Borrower or the Agents that may be required in connection herewith.

SECTION 8. Binding Effect; Amendment . This Accession Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, subject, however, to the provisions of the Loan Agreement. No provision of this Accession Agreement may be amended, waived or otherwise modified except by an instrument in writing signed by the New Conduit Lender and the Administrative Agent.

SECTION 9. Administrative Agent Enforcement . The Administrative Agent shall be entitled to rely upon and enforce this Accession Agreement against the New Conduit Lender in all respects.

[ The remainder of this page is intentionally blank. The next page is the signature page. ]

 

 

Exhibit F-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF , the undersigned have caused this Accession Agreement to be duly executed by a Responsible Officer as of the date first above written.

The effective date for this Accession Agreement is the date this Accession Agreement is acknowledged and accepted by the Administrative Agent and the Borrower ________________, 20_____ (the “ Effective Date ”).

 

[NEW CONDUIT LENDER]

 

 

By:

 

Name:

 

Title:

 

 

BANK OF AMERICA, N.A. ,

as Administrative Agent

 

 

By:

 

Name:

 

Title:

 

 

 

MEGALODON SOLAR, LLC ,

a Delaware limited liability company, as Borrower

 

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit F-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT G

to Loan Agreement

FORM OF BORROWING BASE CERTIFICATE

[See Attached]

 

 

 

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT G

to Loan Agreement

BORROWING BASE CERTIFICATE

This Borrowing Base Certificate (this “ Borrowing Base Certificate ”) dated as of __________, 20__, in respect of the period ending on __________, 20__  (the “ Computation Date ”) is delivered to you on pursuant to Section 5.15 of the Loan Agreement dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor, each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC , Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers, pursuant to which the Lenders have agreed to make Loans to the Borrower. Each capitalized term used and not otherwise defined herein shall have the meaning assigned thereto in Section 1.1 of the Loan Agreement.

The undersigned Responsible Officer of Borrower hereby certifies, represents and warrants as of the date hereof that he/she is the ___________ of Borrower, and that, as such, he/she is authorized to execute and deliver this Borrowing Base Certificate to the Administrative Agent on behalf of the Borrower, and that:

(a) all information contained herein and attached hereto is true and complete, and  that calculations contained herein and attached hereto as Schedule 1 (the “ Borrowing Base Certificate Calculations ”) are true and complete;

(b) Schedule 2 hereto contains the updated Aggregate Advance Model, Net Cash Flows and Revised Net Cash Flows for each Approved Subject Fund, delivered pursuant to Section 2.1(a)(iv)(B) and Section 3.2(c) of the Loan Agreement;

(c) as of the date hereof, the Subject Fund Value, Subject Fund Borrowing Base and Advance Rate for each Subject Fund, including Subject Funds being proposed to be included in the Available Borrowing Base as of a Borrowing Date, are as follows:

 

Subject Fund

Discounted Solar Asset Balance

Advance Rate

Subject Fund Borrowing Base

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

(d) as of the date hereof, no Subject Fund is a Watched Fund [other than the following: 22 2 1

 

Watched Fund

Conditions/Circumstances causing Watched Fund

 

 

 

 

 

 

];

(e) as of the date hereof, no System is a Defaulted System or a Terminated System [other than as set forth on Schedule 3 hereto];

(f) as of the date hereof, the Borrower [is] [is not] in compliance with the Borrowing Base Requirement;

(g) no Default of Event of Default has occurred or is continuing pursuant to the Loan  Agreement;

(h) [no][a] Bankruptcy Event has occurred with respect to either SolarCity or the Limited Guarantor subsequent to the immediately preceding Borrowing Base Certificate delivered pursuant to the Loan Agreement;

(i) as of the date hereof, the Available Borrowing Base is $___________, and Outstanding Principal is $________________;

(j) as of the date hereof, the percentage of Eligible Systems in each Subject Fund that constitute PTO Systems is:

Subject Fund

% of Eligible Systems that are PTO Systems

 

 

 

 

]; [and]

 

21 Insert any Watched Fund and the applicable clause of the definition thereof for the reason a Subject Fund is a Watched Fund. Include representation for Borrowing Base Certificate Dates that do not coincide with the delivery of Borrowing Notices (NB: Borrowing Base Certificates will be delivered after the termination of the Availability Period, at which point this representation will be required as a mechanism to alert the Lenders of any new Watched Assets).

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

(k) as of the date hereof, the Managing Member Payment Level [is] [is not] less than [90]% as of the previous Quarterly Date and the Subject Fund Payment Level in respect of any Subject Fund [is] [is not] less than [85%] as of the previous Quarterly Date[.][; and]

[(l)  To the extent this Borrowing Base Certificate relates to the delivery of a Borrowing Notice:

(1) Schedule 3 hereto lists for the Subject Fund (i) each Current System and (ii) the applicable system information in the System Consolidator with respect to the Current System;

(2) to the extent not otherwise previously delivered to the Administrative Agent, for the benefit of each Lender, in connection with the submission of this Borrowing Base Certificate, Borrower has electronically delivered to the Administrative Agent, for the benefit of each Lender copies of each Completion Certificate with respect to the Subject Funds that has been delivered to the applicable Investor since the date of the last Borrowing Base Certificate;

(3) to the extent not otherwise previously delivered to the Administrative Agent, for the benefit of each Lender, in connection with the submission of this Borrowing Base Certificate, Borrower has electronically delivered to the Administrative Agent, for the benefit of each Lender, true, correct and complete copies of (i) each Customer Agreement for each Current System and (ii) any other data, documentation, analysis or report reasonably requested by the Administrative Agent with respect to such Systems or the associated Host Customers and commercially available to the Borrower, in each case with respect to a Current System;

(4) to the extent not otherwise previously delivered to the Administrative Agent, for the benefit of each Lender, in connection with the submission of this Borrowing Base Certificate, Borrower has electronically delivered to the Administrative Agent, for the benefit of each Lender, financial statements and/or credit reports that any Lender has reasonably requested with respect to a Current System with a commercial Host Customer that does not have a publicly available rating from a recognized national rating agency that was current as of the date that the Customer Agreement corresponding to such System was executed.]

[Remainder of page intentionally left blank]

 

 

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF, the undersigned has caused this Borrowing Base Certificate to be executed and delivered, and the certifications and warranties contained herein to be made on behalf of the Borrower, by a Responsible Officer of the Borrower as of the date first written above.

 

MEGALODON SOLAR, LLC ,

a Delaware limited liability company, as Borrower

 

 

By:

 

Name:

 

Title:

 

 

 

 

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Schedule 1

Borrowing Base Calculations

[ To be provided by the Borrower on each Borrowing Base Certificate Date ]

 

 

 

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Schedule 2

Aggregate Advance Model

[ see attached. ]

 

 

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Schedule 3

Current Systems

[ see attached. ]

 

 

 

Exhibit G

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT H-1

to Loan Agreement

FORM OF AGGREGATE ADVANCE MODEL

[See Attached File – “Aggregate Advance Model_2015-05-04_Final.xlxs” and Assumptions Page Immediately Following]

 

 

 

Exhibit H-1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT H-2

to Loan Agreement

FORM OF SYSTEM CONSOLIDATOR

[See Attached]

 

 

 

Exhibit H-2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT I

to Loan Agreement

FORM OF US TAX COMPLIANCE CERTIFICATE

[See Attached]

 

 

 

Exhibit I

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

US TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan Agreement dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla Inc., a Delaware corporation, solely in its capacity as limited guarantor (the “ Limited Guarantor ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC and Deutsche Bank AG, New York Branch, as joint book runners and joint lead arrangers.

Pursuant to the provisions of Section 2.4(g) of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BENE (or W-8BEN, as applicable).  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.

 

[NAME OF LENDER]

 

 

By:

 

Name:

 

Title:

 

Date:

 

, 20[  ]

 

 

 

Exhibit I

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

US TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan Agreement dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor (the “ Limited Guarantor ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers.

Pursuant to the provisions of Section 2.4(g) of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BENE (or W-8BEN, as applicable).  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.

 

[NAME OF PARTICIPANT]

 

 

By:

 

Name:

 

Title:

 

Date:

 

, 20[  ]

 

 

 

Exhibit I

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

US TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan Agreement dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor (the “ Limited Guarantor ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers.

Pursuant to the provisions of Section 2.4(g) of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BENE (or W-8BEN, as applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BENE (or W-8BEN, as applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.

 

[NAME OF PARTICIPANT]

 

 

By:

 

Name:

 

Title:

 

Date:

 

, 20[  ]

 

 

 

Exhibit I

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

US TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan Agreement dated as of May 4, 2015 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “ Loan Agreement ”), among Megalodon Solar, LLC, a Delaware limited liability company (the “ Borrower ”), Tesla, Inc., a Delaware corporation, solely in its capacity as limited guarantor (the “ Limited Guarantor ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), each group agent from time to time party thereto (collectively, the “ Group Agents ” and individually, a “ Group Agent ”), Bank of America, N.A., as collateral agent for the Secured Parties (the “ Collateral Agent ”), as the administrative agent for the Lenders (“ Administrative Agent ”), Bank of America, N.A. and Credit Suisse Securities (USA) LLC, as joint structuring agents, Bank of America, N.A., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, New York Branch, and ING Capital LLC, as joint book runners and joint lead arrangers.

Pursuant to the provisions of Section 2.4(g) of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Loan Agreement or any other Financing Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BENE (or W-8BEN, as applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BENE (or W-8BEN, as applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.

 

[NAME OF LENDER]

 

 

By:

 

Name:

 

Title:

 

Date:

 

, 20[  ]

 

 

 

Exhibit I

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Addendum B – Annex 3

 

ANNEX 3

SCHEDULE OF LENDER COMMITMENTS

 

Lender

Commitment

Bank of America, N.A.

$150,000,000

Credit Suisse AG, Cayman Islands Branch

$150,000,000

ING Capital LLC

$120,000,000

Deutsche Bank AG,
New York Branch

$50,000,000

KeyBank National Association

$40,000,000

National Bank of Arizona

$32,000,000

Silicon Valley Bank

$29,000,000

CIT Bank, N.A.

$29,000,000

Total Commitments:

$600,000,000

 

 

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Addendum C – JPM Amendments

 

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Exhibit 10.8

 

CONFIDENTIAL TREATMENT REQUESTED

Certain portions of this document have been omitted pursuant to a request for Confidential Treatment and, where applicable, have been marked with “[***]” to indicate where omissions have been made. The confidential material has been filed separately with the Securities and Exchange Commission.

REQUIRED GROUP AGENT ACTION NO. 37

This REQUIRED GROUP AGENT ACTION NO. 37 (this “ Action ”), dated as of June 30, 2017, but effective as of July 1, 2017 (the “ Effective Date ”), is entered into by and among Megalodon Solar, LLC, a Delaware limited liability company (“ Borrower ”), Bank of America, N.A., as the Administrative Agent (“ Administrative Agent ”), the Collateral Agent for the Secured Parties (“ Collateral Agent ”) and each of Bank of America, N.A. (“ BA Agent ”), Credit Suisse AG, New York Branch (“ CS Agent ”), Deutsche Bank AG, New York Branch (“ DB Agent ”), ING Capital LLC (“ ING Agent ”), KeyBank National Association (“ KB Agent ”), National Bank of Arizona (“ NBAZ Agent ”), Silicon Valley Bank (“ SVB Agent ”) and CIT Bank, N.A. (“ CIT Agent ” and collectively with BA Agent, CS Agent, DB Agent, ING Agent, KB Agent, NBAZ Agent and SVB Agent, the “ Group Agents ”), as Group Agents party to the Loan Agreement, dated as of May 4, 2015 (as amended, the “ Loan Agreement ”), by and among the Borrower, Administrative Agent, Collateral Agent, the Group Agents, the Lenders and the other parties from time to time party thereto.  As used in this Action, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Loan Agreement.

A. The Borrower has requested the Required Group Agents to provide their consent to the addition and inclusion to the Loan Agreement and the other Financing Documents of (the “ Subject Fund Transactions ”): (1) [***] (“[***]”), as a Subject Fund, and (2) [***] (“[***]”), as a Subject Fund, and [***] (“[***]”), as a Borrower Subsidiary Party (collectively, [***], [***] and [***], the “ New Entities ”);

B. The Required Group Agents are willing to provide their consent to the Subject Fund Transactions on the terms and subject to the conditions set forth in this Action; and

C. The Borrower, the Required Group Agents, the Administrative Agent and the Collateral Agent desire to amend the Loan Agreement as set forth herein.

 

Required Group Agent Action No. 37

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

Section 1. Amendments to the Loan Agreement.   Subject to the prior satisfaction of the conditions precedent described in Section 4 hereof, the Loan Agreement will be amended as follows (clauses (a) – (d) below, collectively, the “ Loan Agreement Amendments ”):

(a) Schedule 1.1(b) to the Loan Agreement shall be amended by amending and restating the table therein in its entirety:

 

Partnership Managing Member / Lessor Managing Member / Borrower Subsidiary (Other Non-Financed Structure)

Equity Interests Owned as of date related Partnership or Lessor Partnership becomes a Subject Fund

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

(b) Schedule 1.1(b) to the Loan Agreement shall be amended by amending and restating the table therein in its entirety;

(c) Appendix 4 of the Loan Agreement shall be amended and restated as set forth in Exhibit 2 attached hereto; and

(d) Appendix 5 of the Loan Agreement shall be amended and restated as set forth in Exhibit 3 attached hereto.

Section 2. Acknowledgments and Consents .  Subject to the prior satisfaction of the conditions precedent described in Section 4 hereof:

(a) the Required Group Agents consent to the Loan Agreement Amendments, with acknowledgement by each of the Administrative Agent and the Collateral Agent;

2

Required Group Agent Action No. 37

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

(b) the Administrative Agent and the Required Group Agents consent to the Subject Fund Transactions pursuant to and in accordance with Section 2.10(a) of the Loan Agreement ;

(c) the Administrative Agent and the Required Group Agents acknowledge and agree that (i) that certain tax insurance policy, effective as of June 2, 2017 naming [***] as named insured (the “Existing Tax Loss Policy”), satisfies the requirements of Section 11.11(b)(iv) of the Loan Agreement and (ii) pursuant to Section 11.11(b) of the Loan Agreement, no Tax Loss Policy is required for [***] so long as the Existing Tax Loss Policy remains in full force and effect;

(d) the Administrative Agent and the Required Group Agents acknowledge and agree that (i) that certain tax insurance policy, effective as of May 15, 2017 naming [***] as named insured (the “Existing Tax Loss Policy”), satisfies the requirements of Section 11.11(b)(iv) of the Loan Agreement and (ii) pursuant to Section 11.11(b) of the Loan Agreement, no Tax Loss Policy is required for [***] so long as the Existing Tax Loss Policy remains in full force and effect; and

(e) the Required Group Agents agree to deem the requirements of Section 6.15(b) of the Loan Agreement satisfied during the period through July 7, 2017 in respect of the [***]; provided, that no such deemed consent shall have been given under this Section 2(e) unless the Borrower or [***] shall have delivered control agreements with respect to the deposit accounts of [***] in form substantially the same as those in place for [***]  (or otherwise reasonably acceptable to the Administrative Agent) to the Collateral Agent no later than July 7, 2017.

Section 3. Covenants . Borrower hereby agrees that, if [***] is a Subject Fund on the date that certain Master Lease Agreement, dated as of [***], by and between [***] and [***] (the “ Master Lease ”) is terminated, Borrower shall cause [***] to enter into a maintenance services agreement and an administrative services agreement substantially similar to those in place for [***] (or otherwise reasonably acceptable to the Administrative Agent) to be effective as of the date the Master Lease is terminated.

Section 4. Conditions Precedent.   This Action shall be effective upon the satisfaction of the following conditions precedent:

(a) The Administrative Agent shall have received counterparts of this Action, executed and delivered by each of the other parties hereto.

(b) The Administrative Agent shall have received a certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) making the Tax Equity Representations with respect to [***] and [***], as applicable, and (ii) certifying that each representation and warranty of the Borrower contained in Article 4 of the Loan Agreement is true and correct in all material respects as of the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date) other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all respects as of

3

Required Group Agent Action No. 37

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

the Effective Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).

(c) The Borrower shall have delivered or caused to be delivered to the Administrative Agent a Tax Equity Required Consent from (i) with respect to [***] , [***], and (ii) with respect to [***], [***] and [***], each in connection with the Subject Fund Transactions, as applicable.

(d) Each of the Administrative Agent and each Group Agent shall have received an opinion, dated no earlier than the Effective Date, of Wilson Sonsini Goodrich & Rosati, counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.

(e) Each of the Administrative Agent and each Group Agent shall have received opinions, dated no earlier than the Effective Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, the Borrower Subsidiary Parties and SolarCity, each in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent and the Majority Group Agents, with respect to the Subject Fund Transactions.

(f) The Administrative Agent and the Collateral Agent shall have received (i) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each of the New Entities and the Borrower and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral in respect of the New Entities (the “ New Collateral ”), (ii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] other than Permitted Liens, (iii) copies of the financing statements on file in such jurisdictions and evidence that no liens exist on the New Collateral pledged by [***] and the Borrower other than Permitted Liens of the type set forth in clauses (b), (c) or (d) of the definition thereof and (iv) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.

(g) The Collateral Agent shall have received all documentation in connection with the New Collateral, including (i) a Joinder Agreement in the form attached as Exhibit C to the Security Agreement, executed by each of [***], [***], the Collateral Agent and the Borrower, dated as of the Effective Date, (ii) a Joinder Agreement in the form attached as Exhibit B-1 to the CADA, executed by each of [***], [***], the Collateral Agent and the Borrower, dated as of the Effective Date, (iii) a Joinder Agreement in the form attached as Exhibit C to the Borrower Subsidiary Party Security Agreement, executed by each of [***], [***] and the Collateral Agent, dated as of the Effective Date and (iv) any other data, documentation, analysis or report reasonably requested by the Administrative Agent with respect to the New Entities.

(h) (i) The UCC financing statements relating to the New Collateral shall have been duly filed in each office and in each jurisdiction where required in order to create and perfect the first priority Lien and security interest set forth in the Collateral Documents (as supplemented and as such term is defined in the Loan Agreement, as amended) and (ii) the Borrower shall have

4

Required Group Agent Action No. 37

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

properly delivered or caused to be delivered to the Collateral Agent all New Collateral in which the Lien and security interest described above is permitted to be perfected by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in [***] and [***] and the pledged interests in [***] pursuant to the Borrower Subsidiary Party Security Agreement, along with the applicable blank transfer powers and proxies .

(i) Each of the other conditions precedent as set forth in Section 3.4 of the Loan Agreement shall have been satisfied with respect to the Subject Fund Transactions.

(j) The Administrative Agent shall have received for its own account all costs and expenses described in Section 7 of this Action, for which invoices have been presented in connection herewith.

Section 5. Reference to and Effect on Financing Documents. Each of the Loan Agreement and the other Financing Documents is and shall remain unchanged and in full force and effect, and, except as expressly set forth herein, nothing contained in this Action shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or any of the other Secured Parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in each of the Loan Agreement and any other Financing Document. This Action shall also constitute a “Financing Document” for all purposes of the Loan Agreement and the other Financing Documents.

Section 6. Incorporation by Reference .  Sections 10.5 ( Entire Agreement ), 10.6 ( Governing Law ), 10.7 ( Severability ), 10.8 ( Headings ), 10.11 ( Waiver of Jury Trial ), 10.12 ( Consent to Jurisdiction ), 10.14 ( Successors and Assigns ) and 10.16 ( Binding Effect; Counterparts ) of the Loan Agreement are hereby incorporated by reference herein, mutatis mutandis.

Section 7. Expenses. The Borrower agrees to reimburse the Administrative Agent in accordance with Section 10.4(b) of the Loan Agreement for its reasonable and documented out-of-pocket expenses in connection with this Action, including reasonable and documented fees and out-of-pocket expenses of legal counsel.

Section 8. Construction. The rules of interpretation specified in Section 1.2 of the Loan Agreement also apply to this Action, mutatis mutandis.

[ Signature Pages Follow ]

 

 

5

Required Group Agent Action No. 37

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

IN WITNESS WHEREOF, the parties hereto have caused this Action to be duly executed by their respective authorized officers as of the day and year first written above.

 

MEGALODON SOLAR, LLC ,

as Borrower

 

By:

/s/ Radford Small

Name:

Radford Small

Title:

Treasurer

 

 

BANK OF AMERICA, N.A. ,

as a Group Agent

 

By:

/s/ Jazib Hasan

Name:

Jazib Hasan

Title:

Director

 

 

CIT BANK, N.A. ,

as a Group Agent

 

By:

/s/ Joseph Gyurindak

Name:

Joseph Gyurindak

Title:

Director

 

CREDIT SUISSE AG, NEW YORK BRANCH ,

as a Group Agent

 

By:

/s/ Patrick J. Hart

Name:

Patrick J. Hart

Title:

Vice President

 

 

By:

/s/ Patrick Duggan

Name:

Patrick Duggan

Title:

Associate

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH ,

as a Group Agent

 

By:

/s/ Kyle Hatzes

Name:

Kyle Hatzes

Title:

Vice President

 

 

By:

/s/ Gregory Leveto

Name:

Gregory Leveto

Title:

Managing Director

[Signature Page to Required Group Agent Action No. 37]

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

 


ING CAPITAL, LLC ,

as a Group Agent

 

By:

/s/ Scott Hancock

Name:

Scott Hancock

Title:

Director

 

 

By:

/s/ Mark Parrish

Name:

Mark Parrish

Title:

Vice President

 

 

KEYBANK NATIONAL ASSOCIATION ,

as a Group Agent

 

By:

/s/ Benjamin C. Cooper

Name:

Benjamin C. Cooper

Title:

Vice President

 

 

National Bank of Arizona ,

as a Group Agent

 

By:

/s/ Craig Robb

Name:

Craig Robb

Title:

Executive Vice President

 

 

SILICON VALLEY BANK ,

as a Group Agent

 

By:

/s/ Sayoji Goli

Name:

Sayoji Goli

Title:

Vice President

 

BANK OF AMERICA, N.A.

as Administrative Agent and Collateral Agent

 

By:

/s/ Maria A. McClain

Name:

Maria A. McClain

Title:

Vice President

 

 

 

[Signature Page to Required Group Agent Action No. 37]

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT 1

APPENDIX 1

ADVANCE RATE

The “Advance Rate” means

(i)           For a Subject Fund the following percentages:

 

Subject Fund

Advance Rate

Cash Sweep Fund or
Non-Cash Sweep Fund

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

(ii)           In respect of any Potential New Fund that becomes a Subject Fund, a percentage as shall be determined in accordance with this Appendix 1 following the completion of due diligence by the Administrative Agent, which by way of example shall be:

Advance Rate ” means, for a given Subject Fund, a percentage equal to (i) for a Non-Financed Structure, [***] and (ii) for Subject Funds with all other types of structures, a percentage equal to the lesser of (a) [***] and the ratio (expressed as a percentage) of (b) (x) the maximum amount of debt that can be fully supported by Net Cash Flows distributable to the Managing Member of such Subject Fund, calculated using the Downside Assumptions and assuming that interest accrues at the Default Rate and (y) the Discounted Solar Asset Balance of such Subject Fund.

Exhibit 1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

Downside Assumptions ” means, with respect to a given Subject Fund, the stress assumptions set forth in the following table:

 

Characteristic

Downside Assumptions

Availability

[***]

Degradation

[***]

Host Customer Default

[***]

O&M and Administrative Costs

[***]

Fair Market Value Haircut

[***]

Other Unpaid Indemnities that may be due

[***]

 

For avoidance of doubt, the amounts set forth in this clause (ii) are indicative subject to final determination by the Administrative Agent at the time such Subject Fund is included in the Available Borrowing Base;

(iii)         [Reserved].

(iv)         All PV Systems in any Watched Fund shall have an Advance Rate of [***] for purposes of calculating the Available Borrowing Base. For avoidance of doubt, this shall include any PV Systems in a Watched Fund that were financed in previous tranches and whose Net Cash Flows were incorporated in previous Available Borrowing Base calculations.

(v)         To the extent that, despite negotiating in good faith, the Administrative Agent and the Borrower cannot agree on the Advance Rate under clause (ii) of this Appendix 1 , the Advance Rate determined by the Administrative Agent, acting at the direction of the Majority Group Agents, shall prevail.

 

Exhibit 1

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT 2

APPENDIX 4

TAX EQUITY STRUCTURES, PARTNERSHIPS, LESSOR PARTNERSHIPS, LESSORS, SUBJECT FUNDS, MANAGING MEMBERS, FUNDED SUBSIDIARIES, LESSEES, CASH SWEEP DESIGNATIONS AND INVESTORS

Tax Equity Structure

Partnership /
Lessor Partnership

(Subject Fund)

Partnership Managing Member / Lessor Partnership Managing Member

Funded Subsidiaries

(Subject Fund and Managing Member, if any)

Lessee

Full Cash-Sweep Fund, Partial Cash-Sweep Fund or Non-Cash Sweep Fund

Investor(s)

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

 

 

Exhibit 2

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

EXHIBIT 3

APPENDIX 5

PROJECT DOCUMENTS

 

1.

[***] Subject Fund

 

Master Lease, dated as of [***], by and between [***] and [***].

 

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State).

 

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and among [On File with Administrative Agent], [***] and [***].

 

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***], by Megalodon Solar, LLC.

 

Pass-Through Agreement, dated as of [***], by and between [***] and [***].

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent], [***] and [***].

 

2.

[***] Subject Fund

 

Master Lease, dated as of [***], by and between [***] and [***].

 

Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Amendment to Equity Capital Contribution Agreement, dated as of [***] (to add [***] as a Project State) by and among SolarCity, [***] and [***].

 

First Amendment to Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity, [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and between [***] and [***].

 

Operating Agreement of [***], dated as of [***], by and between [On File with Administrative Agent] and [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Second Amended and Restated Limited Liability Company Agreement of [***] dated as of [***] , by Megalodon Solar, LLC.

 

Pass-Through Agreement, dated as of [***], by and between [***] and [***].

 

Guaranty, dated as of [***], from SolarCity in favor of [On File with Administrative Agent] and [***].

 

3.

[***] Subject Fund

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Contribution Agreement (Systems), dated as of [***], by and among [***], [***], Megalodon Solar, LLC and [***].

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

 

4.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Second Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Asset Management Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Purchase and Equity Capital Contribution Agreement, dated as of [***], by and among SolarCity Corporation, [***], [***] and [On File with Administrative Agent].

 

Amendment Agreement, dated as of [***], by and among SolarCity Corporation, [***], [***] and [On File with Administrative Agent].

 

Second Amendment Agreement, dated as of [***], by and among SolarCity Corporation, [***], [***] and [On File with Administrative Agent]

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Guaranty, dated as of [***] , by [***] in favor of [On File with Administrative Agent].

 

Accession Agreement, dated as of [***], by and among SolarCity Corporation, [***] and U.S. Bank National Association.

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

5.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amendment No. 1 to Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Omnibus Amendment No. 1, dated as of [***], by and among SolarCity Corporation, [***] and [On File with Administrative Agent].

 

Transition Manager Agreement, dated as of [***], by and among [***], SolarCity and [***].

 

Accession Agreement, dated as of [***], by and among SolarCity Corporation, [***] and [***].

 

Master Three Party Depositor Escrow Service Agreement, dated [***], by and among SolarCity Corporation, [***] and pursuant to the Beneficiary Enrollment Form and Amendment, dated [***], [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

6.

[***] Subject Fund

 

Master Lease Agreement, dated as of [***], by and between [***] and [***].

 

Omnibus Amendment No. 1 and Consent, dated as of [***], by and among SolarCity Corporation, [***] and [***], as acknowledged by [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Independent Manager Agreement, dated as of [***], by and among [***], [***] and [***].

 

Security Agreement, dated as of [***], by and between [***] and [***].

 

Depositary Agreement, dated as of [***], by and between [***] and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

UCC-1, filed [***], designating [***], as “[***]”, and [***], as “[***]”.

 

Each Contribution Agreement entered into by and among SolarCity Corporation, [***] and the other parties thereto.

 

Each Assignment and Assumption Agreement entered into by and between [***] and [***].

 

7.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Guaranty, dated as of [***] , by SolarCity Corporation in favor of [***] and [On File with Administrative Agent].

 

Transition Manager Agreement, dated as of [***], by and among [***], SolarCity Corporation, [On File with Administrative Agent] and [***].

 

8.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

SREC Services Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity Corporation and [***].

 

Guaranty, dated as of [***], by SolarCity Corporation in favor of [On File with Administrative Agent].

 

9.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Guaranty, dated as of [***] , from SolarCity in favor of [On File with Administrative Agent].

 

10.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and between [***] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Asset Management Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

 

Capital Modification Rights Agreement, dated [***], by and among SolarCity, [***] and [On File with Administrative Agent].

 

Guaranty, dated as of [***], from [***] in favor of [***] and [On File with Administrative Agent].

 

Guaranty, dated as of [***], from [On File with Administrative Agent] in favor of [***].

 

11.

[***] Subject Fund

 

Master Lease Agreement, dated as of [***], by and between [***] and [***].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***] but effective as of [***], by Megalodon Solar, LLC.

 

Independent Manager Agreement, dated as of [***] but effective as of [***], by and among [***], [***] and [***].

 

Security Agreement, dated as of [***], by and between [***] and [***].

 

Depositary Agreement, dated as of [***], by and between [***] and [***].

 

Guaranty, dated as of [***], by [***] in favor of [On File with Administrative Agent].

 

UCC-1, filed [***], designating [***], as “[***]”, and [***], as “[***]”.

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.


 

 

Each Contribution Agreement entered into by and among SolarCity Corporation, [***] and the other parties thereto.

 

Assignment and Assumption Agreement entered into by and between [***] and [***].

 

12.

[***] Subject Fund

 

Limited Liability Company Agreement of [***], dated as of [***], by and among [***], [On File with Administrative Agent] and [On File with Administrative Agent].

 

Amended and Restated Limited Liability Company Agreement of [***], dated as of [***] but effective as of [***], by Megalodon Solar, LLC.

 

Maintenance Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Master Development, EPC & Purchase Agreement, dated as of [***], by and between SolarCity and [***].

 

Administrative Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Guaranty, dated as of [***], by SolarCity in favor of [On File with Administrative Agent] and [On File with Administrative Agent].

 

Transition Manager Agreement, dated as of [***], by and among [***], SolarCity and [***].

 

SREC Services Agreement, dated as of [***], by and between SolarCity and [***].

 

Accession Agreement, dated as of [***], by and among SolarCity Corporation, [***] and [***].

 

Master Three Party Depositor Escrow Service Agreement, dated [***], by and among SolarCity Corporation, [***] and pursuant to the Beneficiary Enrollment Form and Amendment, dated [***], [***].

Exhibit 3

 

[***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.

Exhibit 31.1

RULE 13a-14(a)/15d-14(a) CERTIFICATION

I, Elon Musk, certify that:

1.

I have reviewed this Quarterly Report on Form 10-Q of Tesla, Inc.;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions):

 

(a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: August 4, 2017

 

 

 

/s/ Elon Musk

 

 

 

 

Elon Musk

 

 

 

 

Chief Executive Officer

 

 

 

 

(Principal Executive Officer)

 

Exhibit 31.2

RULE 13a-14(a)/15d-14(a) CERTIFICATION

I, Deepak Ahuja, certify that:

1.

I have reviewed this Quarterly Report on Form 10-Q of Tesla, Inc.;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions):

 

(a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: August 4, 2017

 

 

 

/s/ Deepak Ahuja

 

 

 

 

Deepak Ahuja

 

 

 

 

Chief Financial Officer

 

 

 

 

(Principal Financial Officer)

 

Exhibit 32.1

SECTION 1350 CERTIFICATIONS

I, Elon Musk, certify, pursuant to 18 U.S.C. Section 1350, that, to my knowledge, the Quarterly Report of Tesla, Inc. on Form 10-Q for the quarterly period ended June 30, 2017, (i) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (ii) that the information contained in such Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of Tesla, Inc.

 

Date: August 4, 2017

 

 

 

/s/  Elon Musk

 

 

 

 

Elon Musk

 

 

 

 

Chief Executive Officer

 

 

 

 

(Principal Executive Officer)

I, Deepak Ahuja, certify, pursuant to 18 U.S.C. Section 1350, that, to my knowledge, the Quarterly Report of Tesla, Inc. on Form 10-Q for the quarterly period ended June 30, 2017, (i) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (ii) that the information contained in such Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of Tesla, Inc.

 

Date: August 4, 2017

 

 

 

/s/  Deepak Ahuja

 

 

 

 

Deepak Ahuja

 

 

 

 

Chief Financial Officer

 

 

 

 

(Principal Financial Officer)