EX-10.1


  Exhibit 10.1

  AMENDMENT NO. 1
TO
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT

  THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of March 15, 2021, is entered into by and among TESLA 2014 WAREHOUSE SPV LLC, a Delaware limited liability company (the “Borrower”), TESLA FINANCE LLC, a Delaware limited liability company (“TFL”), the Lenders party hereto, the Group Agents party hereto, DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as paying agent (the “Paying Agent”) and DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative agent (in such capacity, the “Administrative Agent”) and is made in respect of the Second Amended and Restated Loan and Security Agreement, dated as of August 28, 2020 (the “Loan Agreement”) among the Borrower, TFL, the Lenders party thereto, the Group Agents party thereto, the Administrative Agent and the Paying Agent.  Defined terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Loan Agreement as amended hereby.

  WHEREAS, the Borrower, the Lenders, the Group Agents, the Paying Agent and the Administrative Agent have agreed to amend the Loan Agreement on the terms and conditions set forth herein;

  NOW, THEREFORE, in consideration of the premises set forth above, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Lenders, the Group Agents, the Paying Agent and the Administrative Agent agree as follows:

  1.Amendments to Loan Agreement.  Effective as of the Amendment Effective Date (as defined below) and subject to the satisfaction of the conditions precedent set forth in Section 2 hereof:


  (a)Section 1.01 of the Loan Agreement is hereby amended by amending clause (ii) the definition of “Excess Concentration Amount” to read as follows:


  “(ii) the aggregate Base Residual Value of all Warehouse SUBI Leases that are Eligible Leases scheduled to reach their Lease Maturity Date in any one (1) month exceeds the Single Month Maturity Limit; provided, that this clause (ii) shall not apply during (A) the period beginning on the Effective Date and ending on April 30, 2021 and (B) if a Securitization Take-Out Date occurs during the period beginning on the Amendment Effective Date and ending on June 30, 2021, during the period beginning on such Securitization Take-Out Date and ending on the Payment Date occurring in the fourth (4th) month after the month in which such Securitization Take-Out Date occurs;”

  (b)Section 1.01 of the Loan Agreement is hereby amended by amending clause (iiii) the definition of “Excess Concentration Amount” to read as follows:


   

  

   

  “(iii)	the aggregate Base Residual Value of all Warehouse SUBI Leases that are Eligible Leases scheduled to reach their Lease Maturity Date in any 6 consecutive months exceeds the Six Month Maturity Limit; provided, that this clause (iii) shall not apply during (A) the period beginning on the Effective Date and ending on April 30, 2021 and (B) if a Securitization Take-Out Date occurs during the period beginning on the Amendment Effective Date and ending on June 30, 2021, during the period beginning on such Securitization Take-Out Date and ending on the Payment Date occurring in the sixth (6th) month after the month in which such Securitization Take-Out Date occurs;

  2.Conditions Precedent. This Amendment shall become effective as of the date hereof (the “Amendment Effective Date”) upon satisfaction or waiver of the following conditions precedent:


  (a)the receipt by the Administrative Agent or its counsel of counterpart signature pages to this Amendment and each other document and certificate to be executed or delivered in connection with this Amendment;


  (b)no Default, Event of Default or Potential Servicer Default shall have occurred or be continuing, the Termination Date shall not have occurred and no Event of Bankruptcy shall have occurred with respect to TFL or Tesla, Inc.; and


  (c)the Administrative Agent and each Group Agent shall have received such other documents, instruments and agreements as the Administrative Agent or such Group Agent may have reasonably requested.


  3.Representations and Warranties of the Borrower.  The Borrower hereby represents and warrants to the Administrative Agent, each Group Agent and each Lender as of the date hereof that:


  (a)This Amendment and the Loan Agreement, as amended hereby, constitute the legal, valid and binding obligations of the Borrower and are enforceable against the Borrower in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).


  (b)Upon the effectiveness of this Amendment, the Borrower hereby affirms that all representations and warranties made by it in Article IV of the Loan Agreement, as amended, are correct in all material respects on the date hereof as though made as of the effective date of this Amendment, unless and to the extent that any such representation and warranty is stated to relate solely to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date.


  (c)As of the date hereof, no Default, Event of Default or Potential Servicer Default shall have occurred or be continuing, the Termination Date shall not have occurred and no Event of Bankruptcy shall have occurred with respect to TFL or Tesla, Inc.


  4.Reference to and Effect on the Loan Agreement.


   

  

   

  (a)Upon the effectiveness of Section 1 hereof, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall mean and be a reference to the Loan Agreement as amended hereby.


  (b)The Loan Agreement, as amended hereby, and all other documents, instruments and agreements executed and/or delivered in connection therewith, shall remain in full force and effect until hereafter terminated in accordance with their respective terms, and the Loan Agreement and such documents, instruments and agreements are hereby ratified and confirmed.


  (c)Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, any Agent or any Lender, nor constitute a waiver of any provision of the Loan Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.


  5.Costs and Expenses.  The Borrower agrees to pay all reasonable and actual costs, fees, and out‐of‐pocket expenses (including the reasonable attorneys’ fees, costs and expenses of Morgan, Lewis & Bockius LLP, counsel to the Administrative Agent, the Group Agents and the Lenders) incurred by the Administrative Agent, each Group Agent and each Lender in connection with the preparation, review, execution and enforcement of this Amendment.


  6.GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


  7.Headings.  Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.


  8.Counterparts.  This Amendment may be executed by one or more of the parties to the Amendment on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed counterpart of a signature page to this Amendment by facsimile (transmitted by telecopier or by email) shall be effective as delivery of a manually executed counterpart of this Amendment.


  9.Electronic Signatures.  Each party agrees that this Amendment may be electronically signed, and that any electronic signatures appearing on this Amendment or such other documents are the same as handwritten signatures for purposes of validity, enforceability and admissibility.


  10.Direction to Paying Agent to Execute this Amendment.  By execution of this Amendment, the Administrative Agent and the Lenders hereby direct the Paying Agent to execute this Amendment.


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  IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their duly authorized signatories as of the date first above written.

   

  TESLA 2014 WAREHOUSE SPV LLC,

  as Borrower

   

  By: _/s/ Jeffrey Munson			

  Name:  Jeffrey Munson

  Title:  President

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

   

   

  

   

  

   

  DEUTSCHE BANK TRUST COMPANY AMERICAS,

  as Paying Agent

   

  By: /s/ Amy McNulty				

  Name:  Amy McNulty

  Title:  Assistant Vice President

   

  By: /s/ Cynthia Valverde			

  Name:  Cynthia Valverde

  Title:  Assistant Vice President

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

   

  

   

  

   

  DEUTSCHE BANK AG, NEW YORK BRANCH,

  as Administrative Agent, as a Group Agent and as

  a Committed Lender

   

  By: /s/ Kevin Fagan				

  Name:  Kevin Fagan

  Title:  Vice President

   

  By: /s/ Katherine Bologna			

  Name:  Katherine Bologna

  Title:  MD

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

  

   

  

   

  CITIBANK, N.A.,

  as a Group Agent and as a Committed Lender

   

  By: /s/ Brian J Chin				

  Name:  Brian Chin

  Title:  Vice President

   

  CAFCO, LLC,

  as Conduit Lender

   

  By:	Citibank, N.A., as Attorney-in-Fact

   

  By: /s/ Linda Moses				

  Name:  Linda Moses

  Title:  Vice President

   

  CHARTA, LLC,

  as Conduit Lender

   

  By:	Citibank, N.A., as Attorney-in-Fact

   

  By: /s/ Linda Moses				

  Name:  Linda Moses

  Title:  Vice President

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

   

  

   

  

   

  CIESCO, LLC,

  as Conduit Lender

   

  By:	Citibank, N.A., as Attorney-in-Fact

   

  By: /s/ Linda Moses				

  Name:  Linda Moses

  Title:  Vice President

   

  CRC FUNDING, LLC,

  as Conduit Lender

   

  By:	Citibank, N.A., as Attorney-in-Fact

   

  By: /s/ Linda Moses				

  Name:  Linda Moses

  Title:  Vice President

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

   

   

  

   

  

   

  CREDIT SUISSE AG, NEW YORK BRANCH,

  as a Group Agent

   

  By: /s/ Kevin Quinn				

  Name:  Kevin Quinn

  Title:  Director

   

  By: /s/ Jason Ruchelsman			

  Name:  Jason Ruchelsman

  Title:  Director

   

  CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

  as a Committed Lender

   

  By: /s/ Kevin Quinn	      	

  Name: Kevin Quinn	        

  Title: Authorized Signatory	

   

  By: /s/ Jason Ruchelsman

  Name: Jason Ruchelsman

  Title: Authorized Signatory

   

  GIFS CAPITAL COMPANY LLC,

  as a Conduit Lender

   

  By: /s/ Carey D. Fear				

  Name:  Carey D. Fear

  Title:  Manager

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

  

   

  

   

  BARCLAYS BANK PLC,

  as a Group Agent

   

  By:/s/ John McCarthy				

  Name:  John McCarthy

  Title:  Director

   

   

  SALISBURY RECEIVABLES COMPANY LLC,

  as a Conduit Lender

   

  By:  Barclays Bank PLC, as attorney-in-fact

   

  By: /s/ John McCarthy				

  Name:  John McCarthy

  Title:  Director 

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

  

   

  

   

  WELLS FARGO BANK, NATIONAL ASSOCIATION

  as a Group Agent and as a Committed Lender

   

  By: /s/ Charlie Hinkle				

  Name:  Charlie Hinkle

  Title:  Vice President

  Signature Page to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement