Exhibit 10.1
EXECUTION COPY
SEVENTH AMENDMENT TO CREDIT
AGREEMENT
This SEVENTH AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”), made and
entered into as of July 10, 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, a Fourth
Amendment to Credit Agreement dated as of May 30, 2008, a
Fifth Amendment to Credit Agreement, dated as of March 12,
2009, and a Sixth Amendment to Credit Agreement, dated as of
May 27, 2009 (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 Definitions
. Section 1.1 of the Credit
Agreement is amended by amending the following definitions in their
entireties:
“ Maturity Date ”
shall mean August 31, 2010 with respect to the Term Loan,
January 16, 2015 with respect to the Term Loan B and
August 31, 2010 with respect to the Term Loan C.
“ Term Loan B Payment
Amount” shall mean the principal amount demanded by the
Agent pursuant to Section 2.3(a)(i) or called by the Borrower
pursuant to Section
2.3(a)(ii) multiplied by the greater
of (A) 1 and (B) 1.5, as Adjusted, multiplied by the
lesser of (x) the Volume-Weighted Average Price for the common
stock of the Borrower for Term Loan B VWAP Measurement Period and
(y) $3.50, as Adjusted.
“ Term Loan B Stock
Delivery Date ’ is defined in
Section 2.3(a).
“ Term Loan B VWAP
Measurement Period ” shall mean the five
(5) Business Days immediately prior to a Term Loan B Payment
Date.
“ Term Loan C Payment
Date ” is defined in Section 2.3(c).
Section 1.1 of the Credit
Agreement is further amended by adding the following definitions
thereto to read in their entireties as follows:
“ Call Notice Period
” is defined in Section 2.3(a).
“ Demand Notice Period
” is defined in Section 2.3(a).
“ First Call Date
” means January 16, 2012.
“ Opinion of Counsel
” shall mean a written opinion of counsel in form and
substance reasonably satisfactory to the Borrower.
“ Seventh Amendment
Effective Date ” shall mean July 10,
2009.
“ Term Loan Convertible
Promissory Note ” is defined in
Section 2.3(b).
“ Term Loan B Payment
Date ” is defined in Section 2.3(a).
“ VWAP ” shall
mean the Volume-Weighted Average Price of the common stock of the
Borrower for any given measurement period.
2.2 Accrual of Interest and Maturity; Evidence
of Indebtedness . Section 2.3 of the Credit Agreement
is amended to read in its entirety as follows:
(a) Term Loan B . The
Borrower hereby unconditionally promises to pay to Agent for the
account of each Lender the Term Loan B Payment Amount as
follows:
(i) On demand by the Agent to the
Borrower, which first demand may be made no earlier than five
(5) days prior to January 16, 2010. If such demand is
made prior to the First Call Date, then the Agent shall provide the
Borrower with five (5) days notice (“ Demand Notice
Period ”) of the principal amount so demanded. If such
demand is made on or after the First Call Date, then the Demand
Notice Period shall be thirty (30) days.
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(ii) On or after the First Call
Date, the Borrower shall have the right to call all or part of the
amount due under the Term Loan B by providing the Agent with thirty
(30) days notice (“ Call Notice Period ”)
of the principal amount being called.
(iii) Except as otherwise provided
below with respect to payments in stock, payments of the Term B
Payment Amount, whether on account of demand by the Agent under
Section 2.3(a)(i) or call by the Borrower under
Section 2.3(a)(ii), shall be made within three
(3) Business Days following expiration of the Demand Notice
Period or Call Notice Period, as applicable (the “ Term
Loan B Payment Date ”).
(iv) On the Maturity Date for the
Term Loan B, the entire unpaid principal balance of the Term B Note
and all unpaid interest accrued thereon shall also be fully due and
payable.
Notwithstanding anything to the
contrary in this Agreement, amounts due under Sections 2.3(a)(i)
and 2.3(a)(ii) may, at the option of the Borrower, be made in
common stock of the Borrower subject to the satisfaction of the
conditions in the immediately following sentence. When making any
payment under Section 2.3(a)(i) using common stock of the
Borrower, the value of each such share of stock shall be determined
based on the Volume-Weighted Average Price for such stock during
the Term Loan B VWAP Measurement Period; provided, that no payment
under Section 2.3(a)(i) may be made using common stock of the
Borrower unless the following conditions have been satisfied:
(A) prior to expiration of the Demand Notice Period or Call
Notice Period, as applicable, the Borrower shall have given the
Agent notice of its intention to make such payment using common
stock, which notice shall be irrevocable; (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 B Payment Date, Borrower has provided the
Borrower with a certificate customary for sales under Rule 144 and
an Opinion of Counsel in form and substance reasonably acceptable
to the Borrower opining that Borrower may immediately sell such
shares in accord with Rule 144 (and if such opinion and certificate
is not received by the Borrower prior to the Term Loan B Payment
Date and the Borrower does not have an effective shelf registration
statement on file with the SEC with sufficient availability
thereunder, then shares issued in payment will be restricted shares
or Lenders may instead choose to require the Borrower to add such
payment to the outstanding principal amount by providing the
Borrower with written notice thereof at least one (1) Business
Day prior to the Term Loan B Payment Date); (C) the common
stock used for payment shall be delivered to the Agent within three
(3) Business Days following the Term Loan B Payment Date
(“ Term Loan B Stock Delivery Date ”);
(D) if a demand or call is made after the First Call Date,
then the Volume-Weighted Average Price during the Term Loan B
VWAP
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Measurement Period must be equal to
or greater than $0.50 per share (this condition (D) does not
apply to any payments required to be made prior to the First Call
Date and the Borrower shall be free to use its shares for those
payments without regard to the Volume-Weighted Average Price); and
(E) with respect to any call by the Borrower, the maximum
amount that the Borrower may pay using shares shall be limited to
$2,000,000 during any ten (10) Business Day period. In the
event common stock satisfying the requirements in the immediately
preceding sentence is not delivered on or before the Term B Stock
Delivery Date after notice has been given by the Borrower pursuant
to clause (A) of such sentence and the conditions set forth in
clause (B) above have been satisfied, any amounts unpaid as a
result thereof shall bear interest at the interest rate determined
pursuant to Section 2.6 plus two percent (2%) through the
last day of the month in which such shares are
delivered.
(b) Term Loan . As of the
date hereof, the Term Loan, including the entire unpaid principal
balance of the Term Advance and all unpaid interest and accrued
interest thereon, issued under the Credit Agreement shall be deemed
to be reduced to zero, and the entire amount of such Term Loan,
including the entire unpaid principal balance of the Term Advance
and all unpaid interest and accrued interest thereon, shall be
deemed to be exchanged into a $6,639,058 Convertible Promissory
Note (the “ Term Loan Convertible Promissory Note
”) issued by the Borrower to the Agent (as the sole Lender
with respect to such Term Loan) as of the date hereof.
(c) Term Loan C . The
Borrower hereby unconditionally promises to pay to Agent for the
account of each Lender the Accreted Principal Amount as of this
Seventh Amendment Effective Date or, if less, the outstanding
principal balance of the Term Loan C Advance as follows:
(i) $2,500,000 on August 1,
2009 and monthly installments of $1,250,000, commencing on
September 1, 2009 and continuing on the first day of each
month thereafter until the Term Loan C is paid in full;
(ii) All prepayments of principal
with respect to the Term Advance must be paid in cash and shall be
applied to the most remote principal installation or installations
then unpaid; and
(iii) On the applicable Maturity
Date, the entire unpaid principal balance of the Term C 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 are hereinafter referred to as a
“ Term Loan C Payment Date ”).
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Notwithstanding anything to the
contrary in this Agreement, amounts due under
Section 2.3(c)(i) may, at the option of the Borrower, be made
in common stock of the Borrower subject to the satisfaction of the
conditions in the immediately following sentence. When making any
payment under Section 2.3(c)(i) using common stock of the
Borrower, the value of each such share of stock shall be determined
based on ninety-five percent (95%) of the lower of
(i) the Volume-Weighted Average Price for such stock for the
five (5) Business Days immediately prior
