ADDENDUM TO SECURITY AGREEMENT: SECURITIES ACCOUNT
EXHIBIT 10.4
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CONFIDENTIAL
TREATMENT REQUESTED
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CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
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ADDENDUM
TO SECURITY AGREEMENT: SECURITIES ACCOUNT
THIS ADDENDUM is attached to and made a
part of that certain Security Agreement: Securities Account executed by SUNPOWER
CORPORATION ("Debtor") in favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Bank"), dated as of April 4, 2008 (the "Agreement").
The following provisions are hereby
incorporated into the Agreement:
1. Securities Account
Activity. So long as no Event of Default exists, Debtor, or
any party authorized by Debtor to act with respect to the Securities Account,
may (a) receive payments of interest and/or cash dividends earned on financial
assets maintained in the Securities Account, (b) subject to the limitation in
the following sentence (and, unless and until Bank sends notice pursuant to
Section 3.3 of the Securities Account Control Agreement dated April 4, 2008,
notwithstanding any provision to the contrary in said Securities Account Control
Agreement), withdraw Collateral, and (c) trade financial assets maintained in
the Securities Account. Without Bank's prior written consent, except
as permitted by the preceding sentence, neither Debtor nor any party other than
Bank may withdraw or receive any distribution of any Collateral from the
Securities Account. The Collateral Value of the Securities Account
shall at all times be equal to or greater than one hundred percent (100%) of the
aggregate amount available to be drawn under outstanding Letters of Credit plus
the amount drawn and not yet reimbursed under Letters of Credit (the “Exposure
Amount”), less the amount then in Debtor’s deposit account * * * (the “Deposit
Account”) at Bank (such result, the “Required Amount”.)
Debtor
understands that Bank will not consider the Collateral Value of the Securities
Account unless and until Debtor has at least $100,000,000.00 in the Deposit
Account. If the $100,000,000.00 Deposit Account balance condition in
the preceding sentence is satisfied and the Collateral Value, for any reason and
at any month end (as reflected in the monthly Securities Account statement
issued by Xxxxx Capital Management Incorporated) is less than the Required
Amount, Debtor shall promptly deposit additional assets of a nature satisfactory
to Bank into the Securities Account or Deposit Account, in either case in
amounts or with values sufficient to achieve the Required Amount. If
the Deposit Account balance is greater than or equal to the Exposure Amount,
Debtor has no obligation to maintain Collateral in the Securities
Account.
2. ”Collateral Value"
means 100% of the market value of the Securities Account, with market value in
all instances determined by Bank in its sole discretion, and excluding from such
computation all WF Securities and Collective Investment
Funds. Notwithstanding the foregoing, Bank shall exclude from the
determination of Collateral Value, at Bank's sole discretion (a) any stock with
a market value of $10.00 or less, and (b) all investment property from an issuer
if Bank determines such issuer to be ineligible.
3. Exclusion from
Collateral. Notwithstanding anything herein to the contrary,
the terms "Collateral" and "Proceeds" do not include, and Bank disclaims a
security interest in all WF Securities and Collective Investment Funds now or
hereafter maintained in the Securities Account.
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CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
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4. "Collective Investment
Funds" means collective investment funds as described in 12 CFR 9.18 and
includes, without limitation, common trust funds maintained by Bank for the
exclusive use of its fiduciary clients.
5. "WF Securities" means
stock, securities or obligations of Xxxxx Fargo & Company or of any
affiliate thereof (as the term affiliate is defined in Section 23A of the
Federal Reserve Act (12 USC 371(c), as amended from time to
time).
6. Limitation on
Indebtedness. Notwithstanding anything in this Agreement to
the contrary, the obligations secured hereby are limited to all present and
future Indebtedness of Debtor to Bank arising under or in connection with the
Letter of Credit Line and all Letters of Credit issued thereunder, as such terms
are defined in a Credit Agreement dated as of July 13, 2007 between Bank and
Debtor (as amended, extended or renewed – the “Credit Agreement).
7. Events of
Default. Notwithstanding anything in this Agreement to the
contrary, only the occurrence of any of the following shall constitute an "Event
of Default" under this Agreement: (a) any defined event of default, under the
Credit Agreement, as defined above; (b) any representation or warranty made by
Debtor herein shall prove to be incorrect, false or misleading in any material
respect when made; (c) Debtor shall fail to observe or perform any obligation or
agreement contained herein; or (d) any impairment of the rights of Bank in any
Collateral or Proceeds, or any attachment or like levy on any Collateral or
Proceeds.
IN WITNESS WHEREOF, this Addendum has
been executed as of the same date as the Agreement.
| SUNPOWER CORPORATION |
XXXXX
FARGO BANK,
NATIONAL ASSOCIATION
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By:
/s/ Xxxxxxxx X.
Xxxxxxxxx
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By:
/s/ Xxxxxxx
Xxxxxxxxx
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Xxxxxxxx
X. Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx
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Chief
Financial Officer
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Vice
President
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