This Waiver Agreement involves
Title: SECOND AMENDMENT AND WAIVER
Governing Law: New York Date: 7/14/2011
Industry: Semiconductors Sector: Technology
SECOND AMENDMENT AND WAIVER
This Second Amendment and Waiver, dated as of June 30, 2011 (this “ Amendment ”), to the Amended and Restated Credit Agreement, dated as of October 15, 2010, as amended by the First Amendment dated as of May 6, 2011 (as in effect the date of this Amendment, the “ Credit Agreement ”), among First Solar, Inc., a Delaware corporation (the “ Company ”), the various financial institutions and other persons from time to time party thereto (the “ Lenders ”), Bank of America, N.A. and The Royal Bank of Scotland plc, as the documentation agents, Credit Suisse, Cayman Islands Branch, as the syndication agent, and JPMorgan Chase Bank, N.A., as the administrative agent (in its capacity as the administrative agent, the “ Administrative Agent ”).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make, and have made, certain loans and other extensions of credit to the Company;
WHEREAS, the Company has requested that the Credit Agreement be amended and waived in the manner set forth herein; and
WHEREAS, the Required Lenders are willing to agree to this Amendment on the terms, and subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations set forth herein and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, and in reliance upon the representations, warranties and covenants herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Defined Terms . Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
2 Amendments to the Credit Agreement . The Credit Agreement shall be amended as of the Second Amendment Effective Date (as defined below).
(a) Section 7.2(A) . Section 7.2(A) of the Credit Agreement is hereby amended to (i) delete the word “and” at the end of clause (g) thereof, (ii) replace the period at the end of clause (h) thereof with “; and” and (iii) add the following new clause (i) at the end thereof:
“(i) Indebtedness of any Restricted Subsidiary pursuant to letters of credit, bank guarantees or similar instruments issued in the ordinary course of business; provided that the aggregate stated or face amount of all letters of credit, bank guarantees and similar instruments issued pursuant to this clause (i) and Section 7.2(B)(d) below shall not exceed $50 million for all Restricted Subsidiaries outstanding at any time”.
(b) Section 7.2(B) . Section 7.2(B) of the Credit Agreement is hereby amended to (i) delete the word “and” at the end of clause (b) thereof, (ii) replace the period at the end of clause (c) thereof with “; and” and (iii) add the following new clause (d) at the end thereof:
“(d) Guarantee Obligations by any Restricted Subsidiary pursuant to letters of credit, bank guarantees or similar instruments issued in the ordinary course of business; provided that the aggregate stated or face amount of all letters of credit, bank guarantees and similar instruments issued pursuant to this clause (d) and Section 7.2(A)(i) above shall not exceed $50 million for all Restricted Subsidiaries outstanding at any time”.
3 Waiver . Each Lender party hereto hereby (i) consents to the issuance of the letters of credit and bank guarantees listed on Schedule I hereto, (ii) agrees that no Default or Event of Default shall be deemed to have occurred as a result of the issuance of any such letter of credit or bank guarantee and (iii) irrevocably waives any Default or Event of Default that may have arisen in connection therewith prior to the Second Amendment Effective Date. From and after the Second Amendment Effective Date, such letters of credit and bank guarantees shall be included in calculating availability under the baskets provided for in Section 2(a) and (b) above.
4. Conditions Precedent . This Amendment shall become effective as of June 30, 2011 (the “ Second Amendment Effective Date ”), upon the Administrative Agent receiving counterparts of this Amendment, duly executed by the Company, the Administrative Agent and the Required Lenders.
5. Representations and Warranties . To induce the Lenders and the Administrative Agent to enter into this Amendment, the Company hereby represents and warrants to the Administrative Agent and each Lender that:
(a) after giving effect to this Amendment, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents is true and correct in all material respects on and as of the date hereof as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date;
(b) the Company has taken all necessary action to authorize the execution, delivery and performance of this Amendment, this Amendment has been duly executed and delivered by the Company, and this Amendment is the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or similar laws affecting the enforcement of creditors' rights generally and by principles of equity; and
(c) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
6. Expenses . The Company agrees to pay and reimburse the Administrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with the preparation and deli