Contract Drafting
Equity Funding Agreement
Sample
Business Contracts
Equity Funding Agreement - Solyndra Inc., Solyndra Fab 2
LLC, US Department of Energy and US Bank NA
Business Contracts from SEC Filings
EQUITY FUNDING AGREEMENT
among
SOLYNDRA, INC.,
as Equity Contributor
SOLYNDRA FAB 2 LLC,
as Borrower
U.S. DEPARTMENT OF ENERGY,
as Credit Party
U.S. DEPARTMENT OF ENERGY,
as Loan Servicer
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
Dated as of September 2, 2009
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND
INTERPRETATION
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2
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1.1
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DEFINITIONS
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2
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1.2
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COMMON AGREEMENT DEFINITIONS
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3
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1.3
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INTERPRETATION
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3
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ARTICLE II. CAPITAL CONTRIBUTIONS
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3
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2.1
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BASE EQUITY
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3
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2.2
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OVERRUN EQUITY
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4
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2.3
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PROCEDURES FOR EQUITY CONTRIBUTIONS
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5
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2.4
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PROCEEDS OF EQUITY CONTRIBUTIONS
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6
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2.5
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GRANT OF SECURITY INTEREST
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6
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ARTICLE III. ADDITIONAL
AGREEMENTS; TAXES; INDEMNITIES
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6
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3.1
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NO WITHHOLDING
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6
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3.2
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GROSS-UP
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6
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3.3
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INDEMNITY FOR TAXES
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7
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3.4
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INDEMNITY FOR SPONSOR BREACH
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7
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3.5
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SURVIVAL
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8
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3.6
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MODIFICATIONS, SUSPENSIONS, ETC.
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8
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3.7
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WAIVER OF NOTICE OF DEFAULT
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8
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3.8
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NO DISCHARGE UPON CERTAIN ACTIONS BY
CREDIT PARTIES
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8
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ARTICLE IV. REPRESENTATIONS AND
WARRANTIES
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9
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4.1
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LEGALITY, VALIDITY AND ENFORCEABILITY
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9
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4.2
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DEFAULT
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9
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4.3
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LITIGATION
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9
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4.4
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FEES
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10
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ARTICLE V. COVENANTS OF EQUITY
CONTRIBUTOR
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10
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5.1
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CONSENTS
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10
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5.2
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COMPLIANCE WITH LEGAL REQUIREMENTS
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10
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5.3
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LITIGATION
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10
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5.4
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DISTRIBUTIONS
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10
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ARTICLE VI. GOVERNING LAW, CONSENT
TO JURISDICTION AND VENUE
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11
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6.1
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GOVERNING LAW
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11
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6.2
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WAIVER OF TRIAL BY JURY
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11
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6.3
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CONSENT TO JURISDICTION; SERVICE OF
PROCESS
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11
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ARTICLE VII. MISCELLANEOUS
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12
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7.1
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NOTICES
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12
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7.2
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AMENDMENTS TO OTHER DOCUMENTS
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12
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7.3
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ENTIRE AGREEMENT
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12
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7.4
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NO DISCHARGE
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12
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7.5
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TERMINATION
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13
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7.6
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REINSTATEMENT
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13
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7.7
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LIMITATION ON LIABILITY
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13
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7.8
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WAIVER OF SUBROGATION
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13
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7.9
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RIGHTS AND RESPONSIBILITIES OF AGENTS
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14
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7.10
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CALCULATIONS
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14
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7.11
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SUCCESSORS AND ASSIGNS
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14
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7.12
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AMENDMENTS
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14
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7.13
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SEVERABILITY
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14
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7.14
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DELAY AND WAIVER
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15
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7.15
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REMEDIES
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15
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7.16
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BENEFITS OF AGREEMENT
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15
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7.17
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CONCLUSIVE AUTHORITY
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15
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7.18
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COUNTERPARTS
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16
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Exhibit A Form of Notice of
Accelerated Equity Contribution Demand
[Execution Counterpart]
EQUITY FUNDING AGREEMENT
THIS
EQUITY FUNDING AGREEMENT (this "Agreement")
is dated as of September 2, 2009, by and among:
(i)
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SOLYNDRA, INC., a corporation organized and existing under the laws of
Delaware (the "Equity Contributor");
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(ii)
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SOLYNDRA FAB 2 LLC, a limited liability company organized and existing under
the laws of Delaware (the "Borrower");
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(iii)
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U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary of Energy, for
itself as a Credit Party and as guarantor of the DOE-Guaranteed Loans (in
such capacity, "DOE");
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(iv)
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U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary of Energy, as the
Loan Servicer under the Common Agreement (in such capacity, the "Loan
Servicer"); and
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(v)
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U.S. BANK NATIONAL ASSOCIATION, a national banking association, as the Collateral Agent
under the Common Agreement (in such capacity, the "Collateral Agent").
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WHEREAS,
the Borrower intends to develop, construct, own and operate a thin-film solar
photovoltaic manufacturing facility, together with certain associated
facilities, in connection with the Project.
WHEREAS,
in order to finance the cost of the Project, the Borrower has entered into the
Common Agreement dated as of September 2, 2009, by and among DOE, the
Borrower, the Loan Servicer and the Collateral Agent (the "Common
Agreement"), pursuant to which the Credit Parties have agreed to make
available certain credit facilities to the Borrower on the terms and conditions
set forth therein.
WHEREAS,
it is a condition precedent to the making of the initial Advance under the
Common Agreement and the other Loan Documents that the parties shall have
entered into this Agreement.
NOW,
THEREFORE, to induce DOE, the Loan Servicer and the Collateral Agent to enter
into the Common Agreement and the other Loan Documents and to induce the Credit
Parties to make available the DOE Credit Facility, and for other good and
valuable consideration, the receipt and adequacy of which are acknowledged, the
parties agree as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
As
used in this Agreement, the following terms have the following meanings:
"Accelerated
Equity Contribution" means, at any time in the case of an Equity
Acceleration Date specified in a notice issued by the Loan Servicer to the
Equity Contributor pursuant to Section 2.3.2, an amount equal to the
lesser of (i) the balance of the undrawn Base Equity Commitment and all
amounts of the Overrun Equity Commitment that have been funded at such time,
and (ii) the outstanding amount of the Secured Obligations at such time.
"Base
Equity" means, individually, each capital contribution in Dollars
made by, or on behalf of, the Equity Contributor to the Borrower either as
application of an Approved Pre-Closing Equity Credit or in satisfaction of the
Equity Contributor's obligation, pursuant and subject to Article II, to
provide its share of Base Equity Contributions, and, collectively, the
aggregate of all such capital contributions to fund Project Costs up to the
amount of the Base Equity Commitment.
"Base
Equity Contribution" means Base Equity in an amount equal to, on
any Base Equity Contribution Date, an amount sufficient that, after giving
effect to the provision of such amount to the Borrower and the disbursement of
Advances (if any) scheduled to be made on or before such Base Equity
Contribution Date, the Debt-to-Equity Contribution Ratio is not more than
73:27.
"Base
Equity Contribution Date" means the date nine (9) Business
Days prior to each Requested Advance Date.
"Equity
Acceleration Date" means the date specified as such in any notice
issued by the Loan Servicer to the Equity Contributor pursuant to
Section 2.3.2.
"Equity
Contribution" means, individually, each Base Equity Contribution
and Overrun Equity Contribution (including an Accelerated Equity Contribution)
and, collectively, the aggregate of all such contributions.
"Equity
Contribution Date" means each Base Equity Contribution Date,
Overrun Equity Contribution Date, or Equity Acceleration Date.
"Equity
Percentage" means, with respect to the Equity Contributor, one
hundred percent (100%).
"Overrun
Equity" means, individually, each capital contribution made to the
Borrower in satisfaction of the Equity Contributor's obligation, pursuant to
Article II, to provide its share of the Overrun Equity Contribution and,
collectively, the aggregate of all such capital contributions.
"Overrun
Equity Contribution" means Overrun Equity in an amount equal to
the portion of any Overrun Project Costs to be funded pursuant to this
Agreement with Overrun Equity.
2
"Overrun Equity
Contribution Date" means, the date nine (9) Business Days
prior to the Requested Advance Date specified in any Master Advance Notice or
any other date specified in a notice requiring a Overrun Equity Contribution in
accordance with the Common Agreement or this Agreement.
"Sponsor
Loan Documents" means this Agreement, the Sponsor Support
Agreement, and any other agreement, instrument or document executed pursuant
hereto or thereto.
1.2
Common Agreement Definitions
When
used in this Agreement including the recitals hereto, capitalized terms not
otherwise defined herein which are defined in Exhibit A to the
Common Agreement have the meanings given to them in the Common Agreement.
1.3
Interpretation
For
all purposes of this Agreement and the Exhibits hereto, the principles of
construction set forth in Exhibit B to the Common Agreement shall
apply mutatis mutandis to this Agreement as if set forth in full in this
Section 1.3.
ARTICLE II.
CAPITAL CONTRIBUTIONS
The
Equity Contributor undertakes to provide directly or indirectly to the Borrower
the required amounts of Base Equity and Overrun Equity, on and subject to the
terms and conditions of this Agreement.
2.1
Base Equity
2.1.1
Base Equity Commitment
The
Equity Contributor irrevocably commits to provide Base Equity in the aggregate
amount of (i) 27% of all Eligible Base Project Costs, plus (ii) 100%
of all Ineligible Base Project Costs.
2.1.2
Deposits Into Equity Funding Account
On or
prior to the Financial Closing Date, the Equity Contributor shall provide or
cause to be provided to the Collateral Agent in cash an amount equal to
(i) $198,000,000, equal to the full amount of the Base Equity Commitment,
less (ii) the Approved Pre-Closing Equity Credit to be deposited into the
Equity Funding Account in accordance with the Collateral Agency Agreement.
3
2.1.3 Base Equity Contributions
to Borrower
In
accordance with Section 2.3.1, the Equity Contributor shall cause each
Base Equity Contribution, in an amount equal to the product of (x) the
Equity Percentage for the Equity Contributor, and (y) the Base Equity
Contribution scheduled to be made on the applicable Base Equity Contribution
Date, to be made to the Borrower from the following sources as specified in the
applicable Master Advance Notice:
(a)
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to the extent there is an Approved
Pre-Closing Equity Credit Balance that has not been allocated to an Advance
pursuant to Section 2.4.2 of the Common Agreement, it may elect to
allocate any portion of such Approved Pre-Closing Equity Credit Balance as an
Approved Pre-Closing Equity Credit; and
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(b)
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it may transfer funds from the
Equity Funding Account to the Disbursement Account by providing in the Master
Advance Notice instruction to the Collateral Agent to do so in accordance
with the Collateral Agency Agreement; and
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(c)
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otherwise, it shall provide or
cause to be provided to the Collateral Agent in cash all unfunded amounts of
such Base Equity Contribution, to be deposited in the Disbursement Account in
accordance with the Collateral Agency Agreement.
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Base
Equity shall be made available for application as provided in
Section 2.4.2 of the Common Agreement and in the manner described in this
Agreement.
2.2
Overrun Equity
2.2.1
Overrun Equity Commitment
The
Equity Contributor irrevocably commits to provide Overrun Equity in the
aggregate amount equal to (i) 100% of all Overrun Project Costs incurred
at any time prior to the Project Completion Date less (ii) the full amount
of Overrun Contingencies, provided, that Overrun Project Costs shall first be
funded from Overrun Contingencies and only after all Overrun Contingencies are
utilized shall Overrun Equity be required from the Equity Contributor.
2.2.2
Deposits Into Equity Funding Account
On
each of (x) the first Business Day of the calendar month in which the
fifteen-month anniversary of the Financial Closing Date occurs, and
(y) thereafter on the first Business Day of the next successive five
calendar months, the Equity Contributor shall provide or cause to be provided
to the Collateral Agent $5,000,000 in cash, up to a total of $30,000,000, to be
deposited into the Equity Funding Account in accordance with the Collateral
Agency Agreement.
2.2.3
Overrun Equity Contributions to Borrower
In
accordance with Section 2.3.1, the Equity Contributor shall cause each
Overrun Equity Contribution, in an amount equal to the product of (x) the
Equity Percentage for the Equity Contributor, and (y) the Overrun Equity
Contribution scheduled to be made on the applicable Overrun Equity Contribution
Date, to be made to the Borrower from the following sources:
4
(a)
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to the extent that there are any
funds in the Equity Funding Account, at DOE's instruction in accordance with
the Collateral Agency Agreement such funds shall be withdrawn by the
Collateral Agent and contributed to the Borrower up to the amount of the
required Overrun Equity Contribution; and
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(b)
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otherwise, it shall provide or
cause to be provided to the Collateral Agent in cash all unfunded amounts of
such Overrun Equity Contribution, to be deposited in the Disbursement Account
in accordance with the Collateral Agency Agreement.
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2.2.4
Release of Amounts in Equity Funding Account
Upon
Project Completion, DOE shall instruct the Collateral Agent in accordance with
the Collateral Agency Agreement to pay to the Equity Contributor any remaining
balance in the Equity Funding Account not otherwise used to fund Overrun
Project Costs.
2.3
Procedures for Equity Contributions
2.3.1
Timing of Equity Contributions to Borrower
Pursuant
to the Common Agreement and the relevant Master Advance Notice, the Equity
Contributor shall, to the extent its Base Equity Contribution or Overrun Equity
Contribution is required to be made in cash, provide or cause to be provided to
the Collateral Agent in cash for deposit into the Disbursement Account no later
than the Equity Contribution Date therefor in an amount equal to the Equity
Percentage of the Base Equity Contribution or Overrun Equity Contribution scheduled
to be made on such Equity Contribution Date.
2.3.2
Accelerated Equity Contributions
Promptly
upon delivery by the Loan Servicer to the Equity Contributor at any time prior
to the Project Completion Date of a notice in the form of Exhibit A
hereto demanding an Accelerated Equity Contribution pursuant to
Section 8.2(a)(vi) of the Common Agreement, the Equity Contributor shall
on the date specified therefor in such notice provide or cause to be provided
to the Collateral Agent funds for deposit from the Equity Funding Account into
the Disbursement Account without further notice of default, presentment or
demand for payment, protest or notice of non-payment or dishonor, or other
notices or demands of any kind, all such notices and demands being waived.
The right
of the Loan Servicer to demand an Accelerated Equity Contribution shall not
limit any other right or remedy of DOE, the Loan Servicer or any other Credit
Party under any Loan Document or the Governmental Rules, nor shall any Credit
Party be obligated to pursue any right or remedy or proceed against, or elect
or exhaust any remedies with respect to, any other Person or any Collateral
Security. The Equity Contributor hereby irrevocably waives any defense of a
guarantor or surety to which the Equity Contributor might be entitled under any
Governmental Rules with respect to any Accelerated Equity Contribution.
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2.4 Proceeds of Equity Contributions
Each
Equity Contribution required to be made in cash shall be made in immediately
available funds in Dollars.
(a)
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Proceeds of any Equity
Contribution (other than in connection with an Accelerated Equity
Contribution) shall be made available to the Borrower in accordance with
Section 2.4.2 of the Common Agreement and the terms of the Collateral
Agency Agreement.
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(b)
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Proceeds of any Accelerated Equity
Contribution shall be applied in accordance with Section 8.2 of the
Common Agreement.
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2.5
Grant of Security Interest
As
security for the payment and performance of its obligations under this
Agreement and the other Secured Obligations, the Equity Contributor hereby
grants to the Collateral Agent, for itself and on behalf of and for the ratable
benefit of the other Secured Parties, a security interest in the Equity Funding
Account (as defined in the Collateral Agency Agreement) and all proceeds
thereof (the "Collateral"). The Equity Contributor agrees that
this Agreement shall create a continuing security interest in the Collateral
which shall remain in effect until the termination of the DOE Credit Facility Commitment
and payment and performance in full of all Secured Obligations (other than
inchoate indemnity obligations).
ARTICLE III.
ADDITIONAL AGREEMENTS; TAXES; INDEMNITIES
3.1
No Withholding
All
sums payable by the Equity Contributor under this Agreement or any other
Sponsor Loan Document shall be paid free of any restriction or condition, free
and clear of and (except to the extent required by law) without any deduction
or withholding on account of, any tax and without deduction or withholding (except
to the extent required by law) on account of any other amount, whether by way
of set-off, counterclaim or otherwise (except on account of tax on the net
income or capital of any Credit Party by any jurisdiction or any political
subdivision or taxing authority thereof or therein as a result of such entity's
being organized or maintaining an office, branch or permanent establishment in
such jurisdiction or political subdivision).
3.2
Gross-Up
If
either (x) the Equity Contributor (or any other Person) is required by law
to make any deduction or withholding on account of any such tax or other amount
as is referred to in Section 5.1, from any sum paid or payable by the
Equity Contributor (or any other Person) under this Agreement; or (y) any
Credit Party (or any Person on its behalf) is required by law to make any
deduction or withholding from, or (except on account of tax on the net income
or capital of
6
such Credit Party by any
jurisdiction or any political subdivision or taxing authority thereof or therein
as a result of such Credit Party's being organized or maintaining an office,
branch or permanent establishment in such jurisdiction or political
subdivision) any payment on, or calculated by reference to, the amount of, any
sum payable by the Equity Contributor under this Agreement or any other Sponsor
Loan Document, then:
(i)
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the Equity Contributor shall
notify the Loan Servicer of any such requirement or any change in any such
requirement as soon as it becomes aware of it;
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(ii)
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the Equity Contributor shall pay
any such tax or other amount before the date on which penalties attach to
such amount, such payment to be made (if the liability is imposed on any
other Person who is a party to any of the Loan Documents) on behalf of and in
the name of that Person;
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(iii)
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the sum payable by the Equity
Contributor in respect of which the relevant deduction, withholding or
payment is required shall (except, in the case of any such payment, to the
extent that its amount is not ascertainable when that sum is paid) be
increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, that party receives on the due date and
retains (free from any liability in respect of any such deduction,
withholding or payment) a net sum equal to what it would have received and so
retained had no such deduction, withholding or payment been required or made;
and
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(iv)
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within thirty (30) days after
paying any sum from which it is required by law to make any deduction or
withholding, and within thirty (30) days after the due date of payment
of any tax or other amount which it is required by paragraph (i) or
(ii) above to pay, the Equity Contributor shall deliver to the Loan
Servicer evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to the
relevant taxing or other authority.
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3.3
Indemnity for Taxes
The
Equity Contributor shall indemnify the Borrower and each Credit Party on demand
for the full amount of any tax imposed by any jurisdiction on amounts payable
by the Equity Contributor under this Agreement. Upon receiving notice of the
assertion of any claim against the Borrower or a Credit Party relating to such
a tax, the Borrower or such Credit Party shall give prompt notice to the Loan
Servicer (which shall notify the Equity Contributor of the asserted claim)
accompanied by a certificate describing in reasonable detail the basis of the
asserted claim. The obligations of the Equity Contributor under this Section 5.3
shall survive any failure by the Borrower or such Credit Party to provide
prompt notice to the Equity Contributor.
3.4
Indemnity for Sponsor Breach
The
Equity Contributor agrees that it shall defend, indemnify and hold harmless on
demand each Agent and each other Credit Party and their respective directors,
officers, employees, agents and representatives from and against and reimburse
such indemnitees on demand for any and all costs, expenses, liabilities,
losses, damages, injunctions, suits, actions, fines, penalties, claims
7
and demands of every kind or nature,
including reasonable attorney's fees and court costs, which are occasioned by
or result from any failure by the Equity Contributor to perform any of the
terms of this Agreement or any other Sponsor Loan Document. The Equity
Contributor severally agrees that it shall on demand pay its Equity Percentage
of the fees and expenses (including legal fees and out-of-pocket expenses)
incurred by each Agent and each other Credit Party in connection with the
preservation or enforcement of this Agreement and any other Sponsor Loan
Document.
3.5
Survival
The
obligations of the Equity Contributor under this Article III shall survive
termination of this Agreement.
3.6
Modifications, Suspensions, Etc.
The Equity
Contributor shall not agree to any amendment, modification or variation to, or
waive or grant any indulgence with respect to, any right under, or make or
agree to any suspension, termination or cancellation of, this Agreement or any
other Sponsor Loan Document, or assert or agree to any claim that this
Agreement or any other Sponsor Loan Document has been frustrated, except, in
any case, to the extent permitted under the Loan Documents.
3.7
Waiver of Notice of Default
The
Equity Contributor hereby irrevocably waives diligence, presentment, protest,
demand for payment and notice of default or non-payment to or upon the Borrower
or any other Person with respect to any amounts due under the Common Agreement,
any Sponsor Loan Document or any other Loan Document. The Equity Contributor
acknowledges the substantial direct and indirect benefits from the financing
arrangements are contemplated by the Loan Documents and the waivers set forth
herein are knowingly made in contemplation of such benefits.
3.8
No Discharge Upon Certain Actions by Credit Parties
The
Equity Contributor shall remain obligated under this Agreement notwithstanding
that, without any reservation of rights by or against the Equity Contributor
and without notice to, or further assent by, the Equity Contributor:
(a)
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any demand for payment of any
amount due pursuant to the Common Agreement or any other Loan Documents may
be rescinded by any agent or any of the other Credit Parties;
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(b)
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any of the Advances under the DOE
Credit Facility is continued;
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(c)
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such amounts, or the liability of
any other Person upon or for any part of such amounts, or any collateral
security or guarantee for such amounts or right of offset with respect to
such amounts, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by any Credit Party;
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8
(d)
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the Common Agreement or any other
Transaction Document or any other agreement, document or instrument
evidencing, securing or relating to such document, may be amended, modified,
supplemented or terminated, in whole or in part; or
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(e)
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any collateral security or
guarantee or right of offset at any time held by any Agent or any of the
other Credit Parties or any of them for the payment of such amounts may be
sold, exchanged, waived, surrendered or released.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The
Equity Contributor makes all of the following representations and warranties to
and in favor of each Credit Party as of (i) the Financial Closing Date,
(ii) each Periodic Approval Date, and (iii) each Advance Date, except
as such representations and warranties relate to an earlier date, and all of
these representations and warranties shall survive the Financial Closing Date.
4.1
Legality, Validity and Enforceability
This
Agreement and each other Sponsor Loan Document to which it is a party,
constitutes the legal, valid and binding obligation of it, enforceable against
it in accordance with its respective terms, except as such enforceability may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general applicability affecting the enforcement of
creditors' rights and (ii) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.2
Default
It is
not in default under (i) any term of this Agreement or (ii) any other
agreement to which it is a party which could reasonably be expected to have a
material adverse effect on its ability to perform its obligations hereunder or
under any other Sponsor Loan Document to which it is a party.
4.3
Litigation
There
is no pending or, to its knowledge, threatened (in writing) action or
proceeding at law or in equity affecting it before any Governmental Authority
or arbitrator, (i) that relates to this Agreement or, any other
Transaction Document to which it is a party that could reasonably be expected
to have a Material Adverse Effect or (ii) which could reasonably be
expected to have a material adverse effect on its ability to perform its
obligations under this Agreement or under any other Sponsor Loan Document to
which it is a party.
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4.4 Fees
Other
than amounts that have been paid in full or will have been paid in full by the
initial Requested Advance Date, no fees or taxes, including stamp, transaction,
registration or similar taxes, are required to be paid by it or by any of the
Credit Parties for the legality, validity, or enforceability of this Agreement.
ARTICLE V.
COVENANTS OF EQUITY CONTRIBUTOR
The
Equity Contributor covenants and agrees that, until the Secured Obligations
(other than inchoate indemnity obligations) shall have been indefeasibly paid
in full and all commitments to extend credit under the DOE Credit Facility
shall have expired or terminated:
5.1
Consents
It
will maintain in full force and effect all Government Approvals that are
required to be obtained by it with respect to this Agreement and will obtain
any such Government Approvals that may become necessary in the future.
5.2
Compliance With Legal Requirements
It
will comply with all requirements under any law, rule, regulation, order,
judgment or decree to which it may be subject if failure so to comply could
reasonably be expected to have a material adverse effect on its ability to
perform its obligations under this Agreement.
5.3
Litigation
Promptly,
and in any event within five (5) Business Days after an Authorized
Official obtains knowledge thereof, it will give to the Loan Servicer notice of
the occurrence of any event or of any litigation or governmental proceeding
pending against it which could reasonably be expected to have a material
adverse effect on its ability to perform its obligations hereunder.
5.4
Distributions
If
any amount shall be paid to it in violation of this Agreement or the Common
Agreement, such amount shall be deemed to have been paid to it for the benefit
of, and held in trust for the benefit of, the Collateral Agent and shall
forthwith be paid to the Collateral Agent to be credited and applied toward
payment of the outstanding Secured Obligations, whether matured or unmatured,
in accordance with the terms of the Collateral Agency Agreement.
10
ARTICLE VI.
GOVERNING LAW, CONSENT TO JURISDICTION AND VENUE
6.1
Governing Law
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by, and construed and interpreted in accordance with, Federal law and
not the law of any state or locality. To the extent that a court looks to the
laws of any state to determine or define the Federal law, it is the intention
of the parties hereto that such court shall look only to the laws of the State
of New York without regard to the rules of conflicts of laws.
6.2
Waiver of Trial by Jury
EACH
OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF THE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR DOE, THE LOAN SERVICER, AND THE COLLATERAL AGENT TO ENTER INTO THIS
AGREEMENT.
6.3
Consent to Jurisdiction; Service of Process
By
execution and delivery of this Agreement, the Equity Contributor irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding against it arising out of or in connection with this Agreement or
any other Loan Document, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of (i) the
courts of the United States of America for the Southern District of New York,
(ii) the courts of the United States of America located in the District of
Columbia, (iii) any other federal court of competent jurisdiction in any
other jurisdiction where it or any of its property may be found, and (iv) appellate
courts from any of the foregoing;
(b) consents that any such action or proceeding may be
brought in or removed to such courts, and waives any objection, or right to
stay or dismiss any action or proceeding, that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Equity Contributor at its address referenced in Section 7.1 of this
Agreement or at such other address of which DOE shall have been notified
pursuant thereto;
11
(d)
agrees that nothing herein shall (i) affect the right of any Credit Party
to effect service of process in any other manner permitted by law or
(ii) limit the right of any Credit Party to commence proceedings against
or otherwise sue the Equity Contributor or any other Person in any other court
of competent jurisdiction nor shall the commencement of proceedings in any one
or more jurisdictions preclude the commencement of proceedings in any other
jurisdiction (whether concurrently or not) if, and to the extent, permitted by
the Governmental Rules; and
(e) agrees that judgment against it in any such action or
proceeding shall be conclusive and may be enforced in any other jurisdiction
within or without the U.S. by suit on the judgment or otherwise as provided by
law, a certified or exemplified copy of which judgment shall be conclusive
evidence of the fact and amount of the Equity Contributor's obligation.
ARTICLE VII.
MISCELLANEOUS
7.1
Notices
Any
communications to any party to this Agreement or notices provided pursuant to
this Agreement may be given to the address set forth for such party as provided
in Section 11.1 of the Common Agreement. Each communication to be made
under this Agreement shall be made in writing and, unless otherwise stated,
shall be given and deemed effective as provided in Section 11.1 of the
Common Agreement.
7.2
Amendments to Other Documents
No
compromise, alteration, amendment, modification, extension, renewal, release or
other change of, or waiver, consent or other action in respect of any liability
or obligation under or in respect of, or of any of the terms, covenants or
conditions of this Agreement or any other Transaction Document shall in any way
alter or affect any of the obligations under this Agreement or any other
Transaction Document of the Equity Contributor.
7.3
Entire Agreement
This
Agreement, including any agreement, document or instrument attached hereto or
referred to herein, integrates all the terms and conditions mentioned herein or
incidental hereto and supersedes all oral negotiations and prior agreements and
understandings of the parties hereto in respect to the subject matter hereof.
7.4
No Discharge
The
obligations of the Equity Contributor under this Agreement and each other Sponsor
Loan Document shall not be affected by (i) any default by the Borrower or
any other Major Project Participant in the performance or observance of any of
its agreements or covenants in this
12
Agreement or any other Transaction
Document, or (ii) the insolvency of the Borrower or any other Major
Project Participant. No obligations of the Equity Contributor under this
Agreement or any other Sponsor Loan Document shall be released, discharged or
in any way affected by any reorganization, arrangement, compromise, composition
or plan affecting the Borrower or any of its Affiliates or by any lack of
validity or enforceability of this Agreement or any other Transaction Document,
whether or not the Equity Contributor or the Borrower or such Affiliate shall
have notice or knowledge of any of the foregoing.
7.5
Termination
Except
as otherwise expressly provided herein, the obligations of the Equity
Contributor under this Agreement shall remain in full force and effect
(i) in the case of Article II, until the payment in full of the required
amounts of Base Equity and Overrun Equity, and (ii) in the case of all
other obligations hereunder, until the date on which all Secured Obligations
(other than inchoate indemnity obligations) have been indefeasibly paid in full
and all commitments to extend credit under the FFB Note Purchase Agreement have
been terminated.
7.6
Reinstatement
This
Agreement shall continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of any obligations of the Equity
Contributor under this Agreement, or any part of this Agreement, is, pursuant
to the Governmental Rules, rescinded or reduced in amount, or must otherwise be
restored or returned by any Credit Party. In the event that the whole or any
part of any payment is so rescinded, reduced, restored or returned, such
obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
7.7
Limitation on Liability
Except
for a claim arising from the gross negligence or willful misconduct of any
Person, no claim shall be made by the Equity Contributor against any Agent or
any Credit Party or any of their respective Affiliates, directors, employees,
attorneys or agents for any special, indirect, consequential or punitive
damages (whether or not the claim for such damages is based on contract, tort
or duty imposed by law), in connection with, arising out of or in any way
related to the transactions contemplated by this Agreement or the other
Transaction Documents or any act or omission or event occurring in connection
with such documents. The Equity Contributor waives, releases and agrees not to
sue upon any such claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
7.8
Waiver of Subrogation
Until
the Secured Obligations (other than inchoate indemnity obligations) shall have
been indefeasibly paid in full and all commitments to extend credit under the
DOE Credit Facility shall have expired or terminated, the Equity Contributor
shall not enforce or accept any payment by the Borrower under any right of
subrogation which may have arisen or may hereafter arise in connection with
this Agreement.
13
7.9 Rights and Responsibilities of
Agents
Each
of the Collateral Agent and the Loan Servicer shall be entitled to the benefits
of Article 9 (Agents and Advisors) of the Common Agreement and
Section 11.17 (Payment of Costs and Expenses) of the Common Agreement in
connection with the performance of its rights and responsibilities and exercise
of its rights under this Agreement and any other Sponsor Loan Document to which
such Person is a party.
7.10
Calculations
All
financial calculations to be made under, or for the purposes of, this Agreement
and the other Sponsor Loan Documents shall be determined in accordance with the
Common Agreement.
7.11
Successors and Assigns
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the respective successors or permitted assigns of the parties hereto. The
Equity Contributor may not make an assignment or other transfer of this
Agreement or any interest herein, unless it has obtained the prior written
consent of the Collateral Agent acting upon the instruction of the Loan
Servicer pursuant to the Common Agreement to such assignment or other transfer.
(b)
Neither the Equity Contributor nor the Borrower shall be entitled to assign
this Agreement or any benefit or obligation under this Agreement in whole or in
part. The Equity Contributor irrevocably consents to any absolute, conditional
or collateral transfer, pledge or assignment from time to time by the Borrower
to the Collateral Agent of any or all of the right, title and interest of the
Borrower in, to, and under this Agreement under the Security Documents and
agrees that (i) the Collateral Agent shall be a permitted assignee of the
Borrower's rights hereunder and may succeed to all the rights, titles and
interests of the Borrower hereunder, (ii) all payments hereunder by the
Equity Contributor of its obligations shall be made to the Collateral Agent and
(iii) the Collateral Agent shall be entitled to exercise such rights and
remedies as are provided in the Security Documents.
(c)
The Collateral Agent and the Loan Servicer shall assign all of their respective
rights and obligations under this Agreement to any successor appointed pursuant
to the Collateral Agency Agreement or the Common Agreement (as appropriate).
7.12
Amendments
Neither
this Agreement nor any of the terms of this Agreement may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing and signed by the parties to this Agreement.
7.13
Severability
In
case any one or more of the provisions contained in this Agreement should be
invalid, illegal or unenforceable in any respect in any jurisdiction, the
parties hereto agree to the fullest extent they may effectively do so that the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and the parties hereto shall enter
into good faith negotiations to replace the invalid, illegal or unenforceable
provision.
14
7.14 Delay and Waiver
No
delay or omission to exercise, and no course of dealing with respect to, any
right, power or remedy accruing upon the occurrence of any Potential Default or
Event of Default or any other breach or default of the Borrower under this
Agreement or the Common Agreement shall impair any such right, power or remedy
of the Credit Parties, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or in any similar breach or
default thereafter occurring, nor shall any waiver of any single Potential
Default or Event of Default, or other breach or default be deemed a waiver of
any other Potential Default or Event of Default or other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any of the Credit Parties of any Potential
Default or Event of Default, or other breach or default under this Agreement or
any other Loan Document, or any waiver on the part of any of the Credit Parties
of any provision or condition of this Agreement or any other Loan Document,
must be in writing and shall be effective only to the extent in such writing
specifically set forth.
7.15
Remedies
The
remedies provided in this Agreement or by law or otherwise afforded to any of
the Credit Parties shall be cumulative and not alternative. If the Equity
Contributor fails to pay or perform any of its obligations hereunder when due,
the Borrower and each Credit Party may avail itself of all available remedies,
in law or at equity, to enforce its rights hereunder. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion of any other appropriate right or remedy.
7.16
Benefits of Agreement
Nothing
in this Agreement, express or implied, shall give to any Person, other than the
parties hereto and their successors and permitted assigns hereunder and under
the Loan Documents, any benefit or any legal or equitable right or remedy under
this Agreement.
7.17
Conclusive Authority
In
taking or omitting to take any action (including exercising or failing to
exercise any option, voting right or other election provided for in this
Agreement or any other Loan Document), each Agent, as between such Person on
the one hand and the Borrower, the Equity Contributor and each other Major
Project Participant on the other hand, shall be conclusively presumed to be
acting or omitting to act in such capacity with full and valid authority so to
conduct itself, notwithstanding any reference to the Common Agreement or any other
Loan Document. Except to the extent provided otherwise in this Agreement,
nothing in this Agreement shall be deemed to prejudice the rights and
responsibilities, if any, of such Agent with respect to any other Credit Party
arising out of the Common Agreement or any other Loan Document.
15
7.18 Counterparts
This
Agreement may be executed in one or more duplicate counterparts and when signed
by all of the parties shall constitute a single binding agreement.
16
IN WITNESS WHEREOF, the parties to
this Agreement, acting through their Authorized Officials, have caused this
Agreement to be signed in their respective names as of the date first above
written.
SOLYNDRA FAB 2 LLC
|
||||
By:
|
Solyndra, Inc., its sole Member
|
|||
By:
|
/s/ W.G. Stover, Jr.
|
|||
Its:
|
Vice President, Finance & Chief Financial Officer
|
|||
SOLYNDRA, INC.
|
||||
By:
|
/s/ W.G. Stover, Jr.
|
|||
Its:
|
Vice President, Finance & Chief Financial Officer
|
|||
U.S. BANK NATIONAL ASSOCIATION,
as
Collateral Agent
|
||||
By:
|
||||
Its:
|
||||
U.S. DEPARTMENT OF ENERGY,
as
Credit Party
|
||||
By:
|
||||
Its:
|
||||
[Signature Page to Equity Funding Agreement]
IN WITNESS WHEREOF, the parties to
this Agreement, acting through their Authorized Officials, have caused this Agreement
to be signed in their respective names as of the date first above written.
SOLYNDRA FAB 2 LLC
|
||||
By:
|
Solyndra, Inc., its sole Member
|
|||
By:
|
||||
Its:
|
||||
SOLYNDRA, INC.
|
||||
By:
|
||||
Its:
|
||||
U.S. BANK NATIONAL ASSOCIATION,
as
Collateral Agent
|
||||
By:
|
/s/ Jean Clarke
|
|||
Its:
|
Jean Clarke; Assistant Vice President
|
|||
U.S. DEPARTMENT OF ENERGY,
as
Credit Party
|
||||
By:
|
||||
Its:
|
||||
[Signature Page to Equity Funding Agreement]
IN WITNESS WHEREOF, the parties to
this Agreement, acting through their Authorized Officials, have caused this
Agreement to be signed in their respective names as of the date first above
written.
SOLYNDRA FAB 2 LLC
|
||||
By:
|
Solyndra, Inc., its sole Member
|
|||
By:
|
||||
Its:
|
||||
SOLYNDRA, INC.
|
||||
By:
|
||||
Its:
|
||||
U.S. BANK NATIONAL ASSOCIATION,
as
Collateral Agent
|
||||
By:
|
||||
Its:
|
||||
U.S. DEPARTMENT OF ENERGY,
as
Credit Party
|
||||
By:
|
/s/ David G. Frantz
|
|||
Its:
|
Director, Loan Guarantee Program Office
|
|||
[Signature Page to Equity Funding Agreement]
U.S. DEPARTMENT OF ENERGY,
as
Loan Servicer
|
||
By:
|
/s/ David G. Frantz
|
|
Its:
|
Director, Loan Guarantee Program Office
|
|
[Signature Page to Equity Funding Agreement]
Exhibit A
to
Equity Funding Agreement
[Form of Notice of Accelerated Equity Contribution
Demand By Loan Servicer]
[Date]
Solyndra,
Inc.
Re:
|
Equity Funding Agreement dated as
of ,
2009, by and among the Equity Contributor, the Borrower, DOE, the Loan
Servicer and the Collateral Agent (as at any time amended or otherwise
modified, the "Equity Funding Agreement")
|
Ladies
and Gentlemen:
All
capitalized terms used herein and not otherwise defined shall have their
respective meanings set forth in the Equity Funding Agreement.
Pursuant
to Section [8.2(a)(vi)] of the Common Agreement and Section 2.3.2 of
the Equity Funding Agreement, we hereby demand the making of an Accelerated
Equity Contribution (the "Demand") in the amount of [ ]
Dollars ($ ).
The amount of such Accelerated Equity Contribution due from, or on behalf of,
the Equity Contributor is $ .
All
such amounts shall be paid to the [Disbursement Account], Account No. at
the Collateral Agent, [address] on the date of this Demand in Dollars and
immediately available funds.
We
hereby expressly reserve all rights and remedies to which any Credit Party may
be entitled under any Loan Document or the Governmental Rules.
U.S. DEPARTMENT OF ENERGY, as Loan Servicer
|
||
By:
|
||
Its:
|
||
cc:
Collateral Agent
2
