FIRST AMENDMENT TO LOAN AGREEMENT
EXHIBIT
10.5
FIRST
AMENDMENT TO LOAN AGREEMENT
This
First Amendment to Loan Agreement (this “Amendment”), dated as
of August 31, 2009, is entered into by and among SunPower Corporation, a
Delaware corporation (“Borrower”), SunPower
Corporation, Systems, a Delaware corporation (“SCS”), and SunPower,
North America, LLC, a Delaware limited liability company (together with SCS,
collectively, the "Guarantors"), and
Union Bank, N.A. (“Lender”).
BACKGROUND
A. Borrower
and Lender are parties to a certain Loan Agreement, dated as of April 17, 2009,
(as amended from time to time the “Loan Agreement”),
pursuant to which Lender has provided a term loan to Borrower. Any
capitalized term not defined herein shall have the meanings ascribed thereto in
the Loan Agreement.
B. To
induce Lender to extend credit to Borrower, each Guarantor executed and
delivered to Lender a Continuing Guaranty, dated April 17, 2009, guaranteeing
the payment and performance of Borrower's obligations to Lender (the “Guaranty”).
C. Borrower
has requested that Lender agree to amend certain provisions of the Loan
Agreement, and, although Lender is under no obligation to do so, Lender is
willing to amend the Loan Agreement, in accordance with the terms, and subject
to the conditions, set forth herein.
AGREEMENT
The
parties to this Amendment, intending to be legally bound, hereby agree as
follows:
1. Incorporation of
Recitals. Each of the above recitals is incorporated herein as
true and correct and is relied upon by Lender in agreeing to the terms of this
Amendment.
2. Representations and
Warranties of Borrower. Borrower represents, warrants,
covenants and agrees for the benefit of Lender that: (a) the representations and
warranties set forth in the Loan Agreement remain true and correct as of the
date hereof, and (b) no event has occurred or failed to occur that is, or, with
notice or lapse of time or both would constitute, a default, an Event of
Default, or a breach or failure of any condition under any Loan
Document.
3. Amendments to Loan
Agreement.
a. Section
1.2 of the Loan Agreement is hereby amended by amending and restating clause
(viii) of the definition of “Permitted Indebtedness” to read as
follows:
“(viii)
indebtedness of Borrower in an aggregate principal amount not to exceed One
Hundred Fifty Million Dollars ($150,000,000) under the secured letter of credit
facility provided under the Xxxxx Fargo Credit Agreement as in effect on the
Closing Date; provided that such amount may be increased to an aggregate
principal amount not more than Two Hundred Million Dollars
($200,000,000);”
b. Section
4.7 of the Loan Agreement is hereby amended and restated in its entirety to read
as follows:
“4.7 [Deleted].”
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a.
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Borrower
and each Guarantor shall have executed and delivered to Lender this
Amendment; and
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b.
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The
representations and warranties of Borrower under the Loan Agreement and
this Amendment shall be true and correct as of the date
hereof.
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5. Confirmation of
Guaranty. Each Guarantor ratifies and reaffirms its obligations under the
Guaranty and each and every term, condition, and provision of the
Guaranty. Each Guarantor further represents and warrants that it has
no defenses or claims against Lender that would or might affect the
enforceability of the Guaranty and that the Guaranty remains in full force and
effect.
6. No
Waivers. The Loan Agreement, as amended hereby, shall be and
remain in full force and effect in accordance with its respective terms and
hereby is ratified and confirmed by Borrower in all respects. Nothing
contained in this Amendment shall be construed to imply a willingness on the
part of Lender to grant any similar or other future amendments or modifications
to any of the terms and conditions of the Loan Agreement or the other Loan
Documents or shall in any way prejudice, impair or effect any rights or remedies
of the Lender under the Loan Agreement or the other Loan
Documents. The execution, delivery, and performance of this Amendment
shall not operate as a waiver of, or as an amendment of, any right, power, or
remedy of Lender under the Agreement, as in effect prior to the date
hereof. Borrower further ratifies and reaffirms the continuing
effectiveness of the Loan Agreement and all promissory notes, guaranties,
security agreements, and all other instruments, documents and agreements entered
into in connection with the Loan Agreement. Nothing in this Amendment
shall constitute a satisfaction of Borrower’s or any Guarantor’s
Obligations.
7. Miscellaneous. Borrower
acknowledges and agrees that the representations and warranties set forth herein
are material inducements to Lender to deliver this Amendment. This
Amendment shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto, and their respective permitted successors and
assigns. This Amendment and the Loan Agreement shall be read together
as one document. Where any provisions of the Loan Agreement amended
by this Amendment appear in a promissory note tied to the Loan Agreement, the
same provisions in said promissory note shall be deemed likewise
amended. No other person or entity shall be entitled to claim any
right or benefit hereunder, including, without limitation, the status of a third
party beneficiary hereunder. This Amendment shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules. This Amendment may be executed
in any number of counterparts, including by electronic or facsimile
transmission, each of which when so delivered shall be deemed an original, but
all such counterparts taken together shall constitute but one and the same
instrument.
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IN
WITNESS WHEREOF, Borrower, Guarantors and Lender have caused this Amendment to
be executed as of the date first written above.
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SUNPOWER
CORPORATION
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: SVP
and CFO
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UNION
BANK, N.A.
By: /s/ Xxxxx X.
Xxxxx
Name: Xxxxx
X. Xxxxx
Title: Vice
President
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SUNPOWER
CORPORATION, SYSTEMS
By: /s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: SVP
and CFO
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SUNPOWER
NORTH AMERICA, LLC
By:
SunPower Corporation, its sole member
By: /s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title: SVP
and CFO
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