Tesla 2012 Annual Report Download - page 161

February 29, 2012, an aggregate amount equal to not less than a good faith estimate by Borrower of the Note Installments and all accrued
interest on the Loans due and payable on the Quarterly Payment Date occurring on December 15, 2012 and (y) on or before October 15, 2012, an
aggregate amount equal to not less than a good faith estimate by Borrower of the Note Installments and all accrued interest on the Loans due and
payable on the Quarterly Payment Dates occurring on March 15, 2013 and June 15, 2013, it being agreed that (i) the “ Initial Debt Service
Requirement ” shall be deemed to mean, collectively, an amount equal to all Note Installments and all accrued interest on the Loans that, in
each case, will become due and payable on the Quarterly Payment Dates occurring on December 15, 2012, March 15, 2013 and June 15, 2013,
and (ii) amounts credited to the Initial Debt Service Account shall be available to the Borrower solely to pay the Note Installments and all
accrued interest on the Loans that will become due and payable on the Quarterly Payment Dates occurring on December 15, 2012, March 15,
2013 and June 15, 2013 (which shall be deemed to be the “ Initial Debt Service Payment Dates ”) pursuant to Section 2.13(d) of the
Arrangement Agreement, until such payments have been made in full.
(c) Compliance with Section 1(b) of this Waiver shall be deemed to constitute compliance by the Borrower with Section 2.13(c) of the
Arrangement Agreement. Any failure of the Borrower to satisfy the requirement to fund the Initial Debt Service Account as and when set forth
in Section 1(b) shall be referred to as a “ Reserve Noncompliance Event ”
for purposes of this Waiver (it being understood and agreed that such
designation is without prejudice to any other rights and remedies that DOE may have in connection with any failure of the Borrower to comply
with Section 2.13(c) of the Arrangement Agreement as modified hereby, including any Default or Event of Default that may occur as a result
thereof). If at any time after the Waiver Effective Date, a Reserve Noncompliance Event shall have occurred and be continuing, then the waivers
set forth in Section 1(a) shall be of no force or effect.
SECTION 2. Representations and Warranties . Each of the Obligors hereby represents and warrants to DOE that:
(a) As of the Waiver Effective Date, no Default or Event of Default has occurred and is continuing.
(b) Each of the representations and warranties made by any Obligor in or pursuant to the Transaction Documents (other than the
representations and warranties contained in Article 8 of the Note Purchase Agreement) is true and correct in all material respects on and as of the
Waiver Effective Date as if made on and as of the Waiver Effective Date (except to the extent such representations and warranties relate to an
earlier date, in which case, such representations and warranties were true and correct in all material respects as of such earlier date).
SECTION 3. Effectiveness of this Waiver . This Waiver shall become effective on the date (the “ Waiver Effective Date ”) when DOE
(i) shall have received copies of all board, stockholder and other corporate approvals of the Obligors required for this Waiver, (ii) shall have
received duly executed counterparts hereof that bear the signatures
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