Exhibit 10.1
EXECUTION VERSION
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 an
