Exhibit 10.2
FIFTH AMENDMENT TO CREDIT
AGREEMENT
This FIFTH AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”), made and
entered into as of March 12, 2009, is by and between Quantum
Fuel Systems Technologies Worldwide, Inc., a Delaware corporation
(the “ Borrower ”), the Lenders party to the
Credit Agreement (as defined below), and WB QT, LLC, a Delaware
limited liability company, a Lender and as agent for the Lenders
(in such capacity, the “ Agent ”).
RECITALS
1. The Lenders, the Agent and the
Borrower entered into a Credit Agreement dated as of
January 31, 2007, as amended by a First Amendment to Credit
Agreement dated as of September 13, 2007, a Second Amendment
to Credit Agreement dated as of November 6, 2007, a Waiver and
Agreement dated as of December 14, 2007, a Third Amendment to
Credit Agreement dated as of January 16, 2008, and a Fourth
Amendment to Credit Agreement dated as of May 30, 2008 (as so
amended, the “ Credit Agreement ”);
and
2. The Borrower desires to amend
certain provisions of the Credit Agreement, and the Lenders have
agreed to make such amendments, subject to the terms and conditions
set forth in this Amendment.
AGREEMENT
NOW, THEREFORE,
for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby covenant and agree to be bound as
follows:
Section 1. Capitalized
Terms . Capitalized
terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement, unless the
context shall otherwise require.
Section 2.
Amendments . The
Credit Agreement is hereby amended as follows:
2.1. The definition of Maturity Date for the Term
Loan is hereby amended to February 28, 2010.
2.2 Section 2.3(b) of the Credit Agreement
titled “Accrual of Interest and Maturity; Evidence of
Indebtedness” is amended to read in its entirety as
follows:
(b) Term Loan . The Company
hereby unconditionally promises to pay to Agent for the account of
each Lender the outstanding principal balance of the Term Advance
as follows:
(i) In monthly installments on the
fifteenth day of each month commencing October 15, 2008, in
the amount of $400,000 is due. On March 15, 2009 an additional
payment of $3,900,000 is due.
(ii) All prepayments of principal
with respect to the Term Notes shall be applied to the most remote
principal installment or installments then unpaid.
(iii) On the applicable Maturity
Date, the entire unpaid principal balance of the Term Notes and all
unpaid interest accrued thereon shall also be fully due and payable
in cash only.
Each payment date stated in
(i) and (iii) above is hereinafter referred to as a
“ Term Loan Payment Date ”).
Notwithstanding anything to the
contrary in this Agreement, amounts due under
Section 2.3(b)(i) may, at the option of the Company, be made
in common stock of the Company subject to the satisfaction of the
conditions in the immediately following sentence. When making any
payment under Section 2.3(b)(i) using common stock of the
Company, the value of each such share of stock shall be determined
based on ninety five percent (95%) of the Volume-Weighted
Average Price for such stock for the five (5) Business Days
immediately prior to the date such payment is due pursuant to
Section 2.3(b)(i) (“ Term Loan VWAP Measurement
Period ”); provided, that no payment under
Section 2.3(b)(i) may be made using common stock of the
Company unless the following conditions have been satisfied:
(A) the Company shall have given the Agent notice of its
intention to make such payment using common stock, which notice
shall be irrevocable, no later than six (6) Business Days
prior to the Term Loan Payment Date; (B) the common stock used
for payment shall be immediately transferable without restriction,
subject to applicable securities laws, provided that prior to the
Term Loan Payment Date Borrower has provided Company with a
certificate customary for sales under Rule 144 and a Legal Opinion
in form and substance acceptable to Company opining that Borrower
may immediately sell such shares in accord with Rule 144 (and if
such opinion and certificate is not received by the Company prior
to the Term Loan Payment Date and the Company does not have an
effective shelf registration statement on file with SEC with
sufficient availability there under, then shares issued in payment
will be restricted shares or Lenders may instead choose to require
the Company to add such payment to the outstanding principal amount
by providing the Company with written notice thereof at least one
(1) business day prior to the Term Loan Payment Date);
(C) the Company has the ability to choose to delay the
scheduled amortization payment by providing the Agent written
notice thereof at least six (6) business days prior to the
Term Loan Payment Date, however the Company may not choose to delay
such payment for more than two (2) consecutive months and may
not choose to delay any such payment while an election is in effect
for two (2) previous payments; (D) the common stock used
for payment shall be delivered to the Agent on the Term Loan
Payment Date; and (E) if the Volume-Weighted Average Price for
such stock for the first three (3) days of the Term Loan VWAP
Measurement Period is less than $0.50 per share the Lenders may
instead choose to require the Company to add such payment to the
outstanding principal amount by providing the Company with written
notice thereof at least one (1) business day prior to
the
Term Loan Payment Date.
Notwithstanding anything in this Section 2.3(b) to the
contrary, in the event the Company at the time of a Term Loan
Payment Date is not able to make a payment under
Section 2.3(b)(i) using common stock of the Company under the
Marketplace Rules of the Nasdaq Stock Market, any principal payment
due on such Term Loan Payment Date shall be due and payable on
August 1, 2009.
2.3 Section 2.6 of the Credit
Agreement titled “Interest; Interest Payments” is
amended by adding the following sentence to the end of subsection
(a):
“Notwithstanding the
foregoing, if under condition (B) or (E) described in
th
