Form 10-Q Tesla, Inc. For: Mar 31
Exhibit 10.1
|
LML 2018 wAREHOUSE spv, LLC |
|
TESLA 2014 WAREHOUSE SPV LLC |
|
|
3500 Deer Creek |
3500 Deer Creek |
||
|
|
|
||
|
|
|
|
|
Febuary 18, 2020
Lenders under the Loan Agreement
referred to below
Ladies and Gentlemen:
Reference is made to (i) the Loan and Security Agreement, dated as of December 27, 2018 (as amended, restated or otherwise modified prior to the date hereof, the “2018 Loan Agreement”), among LML 2018 Warehouse SPV, LLC (the “2018 Borrower”), as borrower, Tesla Finance LLC (“TFL”), Deutsche Bank Trust Company Americas, as paying agent, Deutsche Bank AG, New York Branch (“DBNY”), as administrative agent, the lenders parties thereto from time to time and the agents parties thereto from time to time and (ii) the Amended and Restated Loan and Security Agreement, dated as of August 17, 2017 (as amended, restated, supplemented or otherwise modified in writing from time to time, the “2014 Loan Agreement” and together with the 2018 Loan Agreement, the “Loan Agreements”), among Tesla 2014 Warehouse SPV LLC, a Delaware limited liability company (the “2014 Borrower” and together with the 2018 Borrower, the “Borrowers”), TFL, the Lenders and Group Agents from time to time party thereto, Deutsche Bank Trust Company Americas, as paying agent, and DBNY, as administrative agent. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the 2018 Loan Agreement and/or the 2014 Loan Agreement, as the context requires.
1.Reallocation of Maximum Facility Limit.
On December 31, 2019, the Recommenced TFL Borrowing Date occurred. Pursuant to Section 2.12(b) of the2018 Loan Agreement, on the Recommenced TFL Borrowing Date, any excess of the Facility Limit over the aggregate principal amount was automatically reallocated from the Facility Limit to the TFL Facility Limit.
On February 18, 2020, TFL provided a notice to the Administrative Agent and the TFL Administrative Agent, requesting a reallocation of $190,000,000 of the Maximum Facility Limit from the TFL Facility Limit to the 2018 Facility Limit, such that the TFL Facility Limit would be $809,000,000 and the Facility Limit would be $291,000,000 on February 26, 2020 (the “Maximum Facility Limit Reallocation Date”).
|
|
|
|
|
The Borrowers hereby request that the Group Agents under the Loan Agrements, on behalf of the Lenders of their Group under each of the Loan Agreements, consent (i) to the reallocation of $190,000,000 of the Maximum Facility Limit from the TFL Facility Limit to the 2018 Facility Limit on the Maximum Facility Limit Reallocation Date as required under Section 2.12(a)(iv) and (ii) to the waiver of the requirement that the Maximum Facility Limit Reallocation Date be at least 10 Business Days after the date of the Maximum Facility Limit Reallocation Notice.
Please indicate your consent to the foregoing by countersigning this letter. The foregoing consent and agreement shall become effective (the date of such effectiveness, the “Consent Effective Date”) upon receipt by the Borrowers of this letter countersigned by all the Group Agents under the Loan Agreements.
3.Representations and Warranties.
Each of the 2018 Borrower and 2014 Borrower hereby confirm that each of the representations and warranties made by it in the applicable Loan Agreement is true and correct in all material respects on and as of the date hereof (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). Each of the 2018 Borrower and 2014 Borrower represent and warrant that, as of the date hereof, no Default or Event of Default has occurred and is continuing, and no Default or Event of Default will result after giving effect to the occurrence of the Consent Effective Date.
4.Miscellaneous.
Except as expressly set forth herein, this letter 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 applicable Loan Agreement or any other Transaction Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the applicable Loan Agreement or any other Transaction 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 applicable Loan Agreement or any other Transaction Document in similar or different circumstances.
This letter agreement shall constitute a Transaction Document for purposes of the applicable Loan Agreement and the Transaction Documents. This letter agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with, the laws of the State of New York.
This letter agreement may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This letter agreement may be delivered by facsimile or other electronic transmission of the relevant signature pages hereof.
|
|
-2- |
|
Very truly yours,
LML 2018 WAREHOUSE SPV, LLC
By: ___/s/ Yaron Klein_________________________
Name: Yaron Klein
Title: Treasurer
TESLA 2014 WAREHOUSE SPV LLC, LLC
By: ___/s/ Yaron Klein_________________________
Name: Yaron Klein
Title: Treasurer
|
|
[Signature Page- Letter]
|
|
|
Consented and agreed to as of
the date first above written:
| Deutsche Bank AG, New York Branch,as Administrative Agent, as Group Agent under the 2018 Loan Agreement and the 2014 Loan AgreementBy:/s/ Timothy P.F. CrowleyName: Timothy P.F. CrowleyTitle:Managing Director
|
|
By: |
/s/ David Lee |
|
|
Name:David Lee |
[Signature Page- Letter]
Consented and agreed to as of
the date first above written:
CITIBANK, N.A., as a Group Agent under the 2018 Loan Agreement and the 2014 Loan Agreement
|
By: |
/s/ Evelyn Havasi |
|
|
Name:Evelyn Havasi |
[Signature Page- Letter]
Consented and agreed to as of
the date first above written:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Group Agent under the 2018 Loan Agreement and the 2014 Loan Agreement
|
By: |
/s/ Kathy Wang |
|
|
Name:Kathy Wang |
[Signature Page- Letter]
Consented and agreed to as of
the date first above written:
CREDIT SUISSE AG, NEW YORK BRANCH, as a Group Agent under the 2018 Loan Agreement and the 2014 Loan Agreement
|
By: |
/s/ Erin McCutcheon |
|
|
Name:Erin McCutcheon |
/s/ Steven Schlussler
Steven Schlussler
Director
[Signature Page- Letter]
Consented and agreed to as of
the date first above written:
BARCLAYS BANK PLC, as a Group Agent under the 2018 Loan Agreement and the 2014 Loan Agreement
|
By: |
/s/ John McCarthy |
|
|
Name:John McCarthy |
[Signature Page- Letter]
Exhibit 31.1
CERTIFICATIONS
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: April 30, 2020 |
|
|
/s/ Elon Musk |
|
|
|
|
Elon Musk |
|
|
|
|
Chief Executive Officer |
|
|
|
|
(Principal Executive Officer) |
Exhibit 31.2
CERTIFICATIONS
I, Zachary J. Kirkhorn, 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: April 30, 2020 |
|
|
/s/ Zachary J. Kirkhorn |
|
|
|
|
Zachary J. Kirkhorn |
|
|
|
|
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 March 31, 2020, (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: April 30, 2020 |
|
|
/s/ Elon Musk |
|
|
|
|
Elon Musk |
|
|
|
|
Chief Executive Officer |
|
|
|
|
(Principal Executive Officer) |
I, Zachary J. Kirkhorn, 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 March 31, 2020, (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: April 30, 2020 |
|
|
/s/ Zachary J. Kirkhorn |
|
|
|
|
Zachary J. Kirkhorn |
|
|
|
|
Chief Financial Officer |
|
|
|
|
(Principal Financial Officer)
|